By decision of 8 June 2023 the State Secretary decided not to process the application for asylum as Lithuania was considered responsible Member State and ordered a Dublin transfer. The applicant lodged an appeal against the decision and also requested an interim measure to suspend the enforcement of the Dublin transfer. The applicant based his appeal on arguments related to the fact that the principle of mutual trust cannot be applied with regard to Lithuania and that he would be at risk of treatment contrary to Article 3 ECHR and Article 4 EU Charter. He relied on reports from Amnesty International and other organisations to claim the existence of shortcomings in the asylum and reception system in Lithuania.

The court noted that Amnesty International referred to the CJEU judgment of 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 concerning Lithuania, in which the court stated as follows:

• “Article 6 and Article 7(1) of the Procedures Directive must be interpreted as precluding a regulation of a Member State that illegally staying third-country nationals in case of a declaration of a state of war, a declaration of a state of emergency whether the declaration of an emergency situation due to a mass influx of aliens effectively removes the possibility of accessing the procedure for examining an application for international protection on the territory of that Member State; and that
• Article 8(2) and (3) of the Reception Conditions Directive must be interpreted as precluding the legislation of a Member State under which an asylum seeker can be detained, in the event of a declaration of a state of war, a declaration of a state of emergency or an emergency, due to a mass influx of aliens on the sole ground that he is illegally staying on the territory of that Member State.”

The court noted that the MA judgment concerned legislation in Lithuania which provided that a third country national who illegally crossed the border will have his/her asylum application rejected as inadmissible and that the persons can be detained. The court further mentioned that by judgment of 28 July 2022, in the reopening of the case after the CJEU judgment, the Supreme Administrative Court of Lithuania ruled that Lithuanian legislation under which foreigners who illegally cross the Lithuanian border are detained is contrary to EU law and that every third country national has the right to seek asylum in Lithuania.

The applicant stated during the Dublin interview that he was detained in Lithuania after arriving on 25 December 2022, initially at the airport without food and then he was kept in detention for 40 days in strict and inadequate conditions. He was then transferred to an asylum seekers center and left for the Netherlands. The court considered that these statements could be corroborated with information from reports describing the treatment of asylum seekers by the Lithuanian authorities during the same period.

The court also highlighted that the judgment of the Supreme Administrative Court of Lithuania of 28 July 2022 constituted a point of reference on the fact that the highest administrative court in Lithuania is able and willing to provide protection against unlawful detention and the rejection of an asylum application solely on illegal border crossing. It resulted from Amnesty International reports that it cannot be reported that legal aid or effective remedies are not available for all asylum seekers, against a rejected asylum application or a detention measure. The Court of the Hague stated that the question remains on whether after the judgment of 28 July 2022 there were significant changes in Lithuania, to affect the questions referred for preliminary ruling to the CJEU on 15 June 2022 on the question of indivisibility of the principle of mutual trust, specifically regarding the situation when the responsible Member State acts, prior to a Dublin transfer, not in accordance with the EU law, but in conflict with it.

The court acknowledged also that the existence of pushbacks in Lithuania has not been disputed in the case, but the question remained on whether Lithuanian authorities are still conducting pushbacks and, if so, whether Dublin returnees are not subject to pushbacks. The court considered that in this case the question arises on whether the interstate principle of trust is indivisible. The court mentioned that the same court submitted a referral to the CJEU on 15 June 2022 on the same question and although the case concerned a transfer to Poland, the answer is relevant for the present case.

In view of the above-mentioned, the Court of the Hague seated in Hertogenbosch suspended the implementation of the Dublin transfer to Lithuania and considered that it cannot be ruled out that the appeal has prospects of success. The court considered that in view of the fact that the transfer may have irreversible effect for the applicant, the latter can be allowed to await the decision on the appeal in the Netherlands.