On 7 September 2022, a family including three minor children reached the Lithuanian border through Belarus and filed an application for asylum at the border inspection point the same day. Their application was accepted and signed by the Migration Department on 8 September 2022. The receipts indicated that their case will be treated as an accelerated procedure and that their admission and accommodation on the Lithuanian territory were not yet resolved because they were staying at the border inspection point, thus not on Lithuanian territory. Despite Lithuanian law requiring an administrative decision on accommodation to be made before that on legal status, no such decision was made. In addition, the State Border Guard Service did not apply to the District Court prior to restricting the family’s freedom of movement within the Centre’s boundaries, which amounted to de facto detention.

The family contested their accommodation and admission to the territory and requested the adoption of an alternative measure to detention. They argued that their de facto detention was unlawful and unjustified because it did not meet the criteria of proportionality and application as a measure of last resort and there was no prior assessment of their specific circumstances. In particular, they argued that in order to respect the principle of the best interests of the child, their freedom of movement should not be restricted.
The Centre argued that the family’s conditions of accommodation respected the principle of the best interests of the child. It also contended there could be no alternative measure to detention because there was no legal basis for detention in the first place. It also put forward that according to the state of emergency declared on 2 July 2021 due to a mass influx of foreigners, border procedure applicants are not considered as having entered Lithuanian territory until a decision is reached regarding their admission thus cannot be detained.
In its 2 December 2022 decision, the Vilnius Regional District Court ruled that regardless of the fact that there was a ground for detention because no decision was yet taken on their asylum claim and six months had not passed since their registration in the national asylum system, the family’s detention was unlawful because it did not account for their circumstances, especially those of the children. Noting that the family cooperated with the authorities, did not attempt to escape nor represented a threat to public order, the court stated that notwithstanding the good conditions put forward by the Centre, the family’s detention was disproportionate and violated article 5 ECHR. Thus, the District Court imposed an alternative measure to detention, lifting restrictions on the family’s freedom of movement.

The Centre for the Registration of Foreigners of the State Border Guard Service appealed against the adoption of an alternative measure to detention. In its appeal, the Centre reaffirmed its argument that there could be no alternative measure to detention because there was no ground for detention.

The Supreme Administrative Court of Lithuania recalled that detention is an autonomous concept of EU law which does not follow national nomenclatures. The Supreme Administrative Court noted that according to article 2(h) of the recast Reception Conditions Directive, accommodation with restricted freedom of movement amounts to detention, and as such should be applied only as last resort, in accordance with Lithuanian law and caselaw from the Constitutional Court. It also reaffirmed that restrictions on freedom of movement amount to separation from the rest of the population, which constitutes detention per se, therefore enabling a review of the legality of said detention. The court also questioned the Centre’s application of an accommodation regime that has been qualified as detention in its own jurisprudence and CJEU case law (M.A. v State Border Protection Service at the Ministry of the Interior of the Republic of Lithuania, C-72/22 PPU, 30 June 2022) whilst arguing there is no ground for detention. The court concluded that refusing entry on national territory and detaining asylum applicants despite filing an application at the border and establishing their identity means that the authorities regard all asylum applicants as having entered illegally, which confirms that there is no assessment of individual circumstances when applying accelerated procedures and resolving accommodation issues. The court then recalled that according to previous case law, vulnerable persons and children cannot be detained, bar in exceptional circumstances.

The Supreme Administrative Court of Lithuania asserted that, in light of Lithuanian law interpreted according to the relevant Directives as well as its own and CJEU case law, there was no lack of legal basis for the application of an alternative measure to detention. Therefore, it dismissed the appeal of the Centre for the Registration of Foreigners of the State Border Guard Service under the Ministry of the Interior of the Republic of Lithuania.