The parents of applicant ARCH (daughter) and applicant AOCH (son) were granted international protection and were issued a long-term residence permits on 15 March 2023. The children arrived in Lithuania after the parents received the status, on 24 September 2023. They applied for a residence permit for family reunification, which was refused with the reason that they should apply for international protection. They brought this element up only during the second appeal before the Supreme Administrative Court, and did not mention it during the first appeal with the Regional Administrative Court. Their mother thus applied for international protection on their behalf on the same day on 25 September 2023. This application was rejected by the Migration Department on 21 March 2024, reasoning that the children would not face persecution in their country of origin due to the father’s political opinions. The Migration Department argued that children may only be given a status based on their parents’ status, if they arrive together, or, if the children join while the asylum procedure is still ongoing. If they arrive afterwards, the authority is obliged to examine their claim separately from that of their parents. The authority referred to the CJEU judgment in C-614/22, noting that the mere fact that the parents received international protection does not oblige national authorities to grant this status to the children as well. The Migration Department underlined that the asylum procedure cannot be used for the purposes of family reunification, and parents have the right to apply for temporary residence for their children. It stated that it examined the reasons put forward by the daughter (bullying at school) and the son (corporal punishment at school) and concluded that during the interview they did not bring up any reasons that would suggest that this happened due to the father’s political views and thus, they cannot be granted international protection.

On appeal, the Regional Administrative Court annulled the Migration Department’s decision and obliged the authority to re-examine the case. The court highlighted that the fact that the applicants’ interpretation of the bullying and corporal punishment they suffered at school differed from that of the mother’s cannot in itself lead to the conclusion that those actions did not happen due to the father’s political views. The court also underlined that the Migration Department should have made an assessment of the non-refoulement principle based on the Return Directive, Article 5. The court added that the Migration Department did not sufficiently examine the case in an individual manner, and it should have given more attention to the fact that the parents were already granted international protection.

The Migration Department further appealed to the Supreme Administrative Court. It claimed that the Regional Administrative Court’s finding is too categorical, when it states the fact that the parents’ international protection is a decisive factor. The authority was of the opinion that this did not leave room for individual assessment. The authority claimed that it assessed this fact as one of the factors among many and argued that the fact that the parents left the children with their grandmother in the country of origin indicated that they did not consider their children to be subject to a threat of persecution. The authority highlighted again that the parents should have sought other residence title for being reunited with their children. The applicants presented a new element on second appeal, noting that they firstly asked for family reunification, but were immediately reoriented toward the international protection procedure by the Migration Department itself. The applicants also drew attention to the fact that their case was being examined by the UN CRC, under No 235/2023. They repeated again the arguments substantiating that the Migration Department did not sufficiently examine and reason their case in an individual manner.

The Supreme Administrative Court first assessed the new evidence. It concluded that the contested decision by the Migration Department was not adopted because the applicants failed to submit an application for family reunification, and the applicants did not submit any reason for failing to submit this evidence earlier in the procedure. Thus, the court did not grant the request to submit new evidence.

Then, the court continued with the assessment of the Migration Department’s claims. It highlighted that the mere fact that the Regional Administrative Court proceeded with the assessment of all available evidence did not mean it overstepped its competences as the role of the court is to establish all facts that may be relevant for the authorities during the re-assessment of the case.

The Supreme Administrative Court referred to its established jurisprudence in case eA-3467-520/2021 (18 August 2021) relating to the individual assessment of asylum applications submitted by a child, and highlighting that the child's age and dependence on the persons caring for him or her, the long-term impact on the child's physical and psychological development and well-being are criteria that must be duly assessed. The court also cited at that time UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, which underlines that it is particularly important to take into account the circumstances of family members, which may be essential in deciding the child's application.

The Supreme Administrative Court analysed the reasoning of the Migration Department and found that the authority did not properly assess the fact that the applicants were minor children of parents who had already received international protection. The reasoning of the rejection decision made a reference to the parents’ decision, but it did not include why the authority concluded that there was no threat of persecution for the children. The court also analysed the referenced CJEU judgement and concluded that it cannot be applied in an analogue manner to the present case.

The Supreme Administrative Court also assessed the relevant article in national law and disagreed with the Migration Department that it allows the authority to grant the same status only when family member arrive together or during the examination procedure. The court underlined that the two sentences in that paragraph are independent in their content.

Thus, the court agreed with the Regional Administrative Court and confirmed its judgment.

In addition to the Migration Department’s appeal, the applicants appealed part of the first instance decision, which did not grant them the reimbursement of EUR 500 costs for legal assistance. The Supreme Administrative Court noted that the first appeal instance correctly applied the law: in principle, these fees cannot be reimbursed when the request for this is submitted only after the court had made a decision on the substance of the case. However, given the particularity of the present case, especially that the applicants were minor children in need of international protection, and the fact that the case was complex in nature and therefore the legal representative could not submit an estimation of the costs before the end of the substantive proceedings, the court came to the conclusion that exceptionally, the legal fees can be reimbursed. The court also confirmed the amount claimed, given the complexity of the case, and noted that it was established within the principles of reasonableness, fairness and justice.