Security threat and the right to effective remedy

The connection between migrants, asylum seekers and alleged criminality is increasingly underlined in political debate worldwide. Language connecting asylum seekers and refugees with the threat posed by international terrorism, organized crime and now foreign espionage has become increasingly entrenched in political rhetoric spreading fears of witch hunting and hate speech trends.

On August 3 Lithuanian government announced that after assessing all public and non-public information, it was found that 910 Belarusian citizens pose a threat to national security, of whom 337 were refused a temporary residence permit and 121 were refused a replacement of such permit. 205 Belarusians had their previously valid temporary residence permits revoked. Two Belarusian citizens were refused permanent residence permits in Lithuania and four had such documents revoked. 241 Belarusians received negative responses on such grounds when they applied for a Lithuanian national visa. This decision was loudly announced and intensively commented.

Most of the Belarusians affected by such decision have been living in Lithuania since 2020 repressions after rigged elections in Belarus. Some of them retained their relations with the country of origin, others, among them all our clients, never went back fearing persecution for public protests, financial support to opposition or their political views. Belarus is still systematically persecuting not only journalists, opposition figures and students, but also ordinary citizens who take to the streets to express their opinions or comment on officials’ actions online. Those who take part in peaceful protests are detained and charged with falsified charges or minor offences blown out of proportion, and are often subjected to psychological and physical measures. Politically motivated arrests are carried out, as protesters are perceived to have associations/connections with the opposition and are seen as a threat to the ruling regime. The most recent information confirms that Belarusian law enforcement authorities are still carrying out the identification and punishment of the 2020 protesters, including through the analysis of video footage and the use of facial recognition. The publicly available information also confirms that those arrested and administratively sanctioned during the protests are subsequently facing additional charges and re-punishment.

The case materials of our clients reveal that the decisions to declare a person a threat to national security in Lithuania were based on the biographical data they submited themselves in the questionnaire to Migration department. Thus Belarusians who had work contracts with state institutions fell into such category, regardless of their job description and time of such activity. Their individual situations were not taken into account as no such information was available to the Lithuanian authorities. It must be pointed out that only a few hundreds of 60 000 Belarusians that escaped to Lithuania in 2020-2021 requested asylum. Most received humanitarian residence permits that now are being revoked. The situation is changing. So far the only way to inform the authorities about the possible persecution in the country of origin is to ask for asylum and submit the evidence of your attitude towards the regime.

As witnessed in ReLex cases Lithuanian courts pay necessary attention to the need to examine individual circumstances of our clients. However serious shortcomings have been reported with regard to the national security related asylum cases elsewhere. Asylum authorities often refrain from giving factual justification why a person presents a threat to national security in their decisions and the person concerned and their legal representative have no access to the underlying classified evidence. The person concerned is therefore not in the position to effectively argue their case before the courts, thus their rights to a fair trial and effective remedies are infringed. The actual legitimacy of the existence of the threat becomes questionable.

The courts must be competent to reject the executive’s assertion that there is a threat to national security, there must be some form of adversarial proceedings, if need be through a special representative after security clearance. Furthermore, the question whether the impugned measure would interfere with the individual’s right to respect for family life and, if so, whether a fair balance is struck between the public interest involved and the individual’s rights, must be examined (Al-Nashif v. Bulgaria, 2002, § 137).




Konstitucijos pr. 7, Vilnius LT-09308