On 2 July 2021, Lithuania declared an emergency situation throughout its territory and on 10 November 2021, issued a declaration of a state of emergency in part of its territory due to a massive influx of migrants from, inter alia, Belarus.

M.A., a third-country national, was arrested on 17 November 2021 in Poland, together with a group of persons from Lithuania, as he did not have travel documents or visa to stay in Poland and in the European Union. M.A. was surrendered to the Lithuanian authorities, which detained him until a decision on his legal status was taken. After his surrender, he lodged an application for international protection, repeated in writing in January 2022. The latter was rejected as inadmissible on the ground that it had been lodged without complying with the procedures laid down by Lithuanian law concerning the lodging of applications for international protection in an emergency situation caused by the mass influx of foreigners. Under the legislation, a third country national who entered Lithuania irregularly does not have the possibility of making an application for international protection on the territory of that Member State. The law also provides that, in such an emergency situation, a foreign national may be detained solely on account of his irregular entry into Lithuanian territory.

During the procedure concerning an appeal brought by M.A. against the decision providing for his detention, the referring court sought to determine whether the Asylum Procedures Directive (recast APD) and the Asylum Reception Conditions Directive (recast RCD) preclude such legislation.

The CJEU ruled under the urgent preliminary ruling procedure, that the recast APD precludes legislation that precludes access to the procedure for examining an application for international protection to illegally staying third-country nationals in the event of a declaration of the state of war or the state of emergency or in the event of a declaration of an emergency situation due to a mass influx of foreigners. 

The court noted that any third-country national or stateless person has the right to make such an application in the territory of a Member State, at its borders or in its transit zones, even if he/she is staying illegally on that territory. That right is intended to ensure effective access to the procedure for granting international protection and the effectiveness of the right to asylum (Article 18 of the EU Charter). 

The court also found that the general reliance on breaches of public policy or internal security which may be caused by the mass influx of third-country nationals does not justify such legislation under Article 72 TFEU.

In addition, the court noted that the recast APD allows Member States to establish special procedures, applicable at their borders, for assessing the admissibility of applications for international protection in situations where the behaviour of the applicant tends to indicate that his or her application is manifestly unfounded or abusive. Those procedures enable the Member States to exercise, at the external borders of the EU, their responsibilities with regard to the maintenance of law and order and the safeguarding of internal security, without it being necessary to have recourse to a derogation under Article 72 TFEU.

The CJEU also held that the recast RCD precludes legislation under which, in the case of such a declaration or proclamation, an asylum seeker may be detained on the sole ground that he/she is staying illegally. The court recalled that under the recast RCD, an applicant for international protection may be detained only where necessary, following an individual assessment, and if other less coercive measures cannot be applied effectively. The directive lists exhaustively the grounds which may justify detention and the fact that an applicant for international protection is staying illegally on the territory of a Member State is not among those grounds. Thus, a third-country national cannot be detained for that reason alone.

Regarding detention on grounds of protection of national security or public order, in the exceptional context represented by the mass influx of foreign nationals at issue, the court recalled that the threat to national security or public order can justify the detention of an applicant only on condition that his individual conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or the internal or external security of the Member State concerned. The illegal nature of the stay of an applicant for international protection cannot be regarded as demonstrating, in itself, the existence of such a threat. Thus, such an applicant cannot, in principle, constitute a threat to the national security or public order of that Member State, solely on the ground that he/she is in a situation of illegal stay. However, the court noted that this finding is without prejudice to the possibility that an illegally staying applicant for international protection may be regarded as constituting such a threat on account of specific circumstances, demonstrating his/her danger, in addition to the illegal nature of that stay.