In the light of the surrender of Vasily Veremeychik to the Belarussian authorities we cannot stress enough at ReLex the duty of the national authorities to consider all individual circumstances while taking decisions related to the legal status of foreigners.
The aspects of the threat of persecution are of particular importance when deciding on revoking residence permits of Belarussian and Russian citizens. In Belarus, at least 1,671 Belarusians were detained for their anti-war stance or for expressing solidarity with Ukraine, and at least 200 of them have been given prison sentences ranging from one to 25 years on charges of “extremism and “conspiracy against the state,” according to a report by the Viasna human rights center. Similarly, in the lead-up to Russia’s full-scale invasion of Ukraine on February 24, 2022, and in its aftermath, Russian government criminalized criticism and independent reporting of the war and that expanded the definitions of ‘foreign agents’ and ‘undesirable organizations’ in order to obliterate civil society and free expression. According to Mariana Katzarova, Special Rapporteur on the situation of human rights in the Russian Federation,“ torture is used in Russia as a State sanctioned tool for systematic oppression, to maintain control and to stifle dissent.”
The principle of non-refoulement forms an essential protection under international human rights, refugee, humanitarian and customary law and is reflected in Article 130 of Lithuanian law on legal status of foreigners. It prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, illtreatment or other serious human rights violations. Under international human rights law the prohibition of refoulement is explicitly included in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED).
According to UNHCR Guidelines, a knowledge of conditions in the applicant’s country of origin is an important element in assessing the applicant’s credibility. In general, the fear of persecution should be considered well‑founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there. These considerations need not necessarily be based on the applicant’s own personal experience. What, for example, happened to his friends and relatives and other members of the same racial or social group may well show that his fear that sooner or later he also will become a victim of persecution is well‑founded. The laws of the country of origin, and particularly the manner in which they are applied, will be relevant.
Quite recently CJEU reaffirmed in case C‑156/23 that Article 5 of the Return Directive 2008/115/EC, read in conjunction with Article 19(2) of the Charter of Fundamental Rights of the European Union, must be interpreted as requiring an administrative authority which rejects an application for a residence permit based on national law and, consequently, finds that the third-country national concerned is staying illegally on the territory of the Member State in question, to ensure compliance with the principle of non-refoulement, by reviewing, in the light of that principle, the return decision previously adopted against that national in the context of a procedure for international protection, the suspension of which came to an end following such a rejection. Moreover Article 13(1) and (2) of the Return Directive 2008/115, read in conjunction with Article 5 of that directive and with Article 19(2) and Article 47 of the Charter of Fundamental Rights, must be interpreted as requiring a national court which is requested to review the legality of an act whereby the competent national authority has rejected an application for a residence permit provided for by national law, and, in so doing, has brought to an end the suspension of the enforcement of a return decision previously adopted in the context of a procedure for international protection, to raise of its own motion any infringement of the principle of non-refoulement resulting from the enforcement of the latter decision, on the basis of the material in the file brought to its attention, as supplemented or clarified following adversarial proceedings.
Read more in the LRT.lt opinion of ReLex managing partner Rytis Satkauskas.
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