2022.01.27 08:00

Migrants entering Lithuania via Belarus are neither legal nor illegal – judge

Aurelijus Gutauskas, Vilnius University2022.01.27 08:00

Migrants entering Lithuania from Belarus are subject to lower standards. By labelling them a threat, the rights of vulnerable people might be in jeopardy, says Aurelijus Gutauskas, professor at the Faculty of Law of Vilnius University and judge at the Supreme Court of Lithuania.

In the VU podcast Science without Sermons, he evaluates Lithuania's migrant turnback policy and asylum application procedure from a legal perspective.

The interview was prepared by Vilnius University and published by LRT English with prior permission.

According to Gutauskas, the migration crisis that began last spring, during which over 4,000 migrants entered Lithuania from Belarus and thousands more were turned back, has widened the range of terms: it is not only illegal migration that is being referred to, but also refugees, asylum seekers, and those who have illegally entered and are illegally staying on the territory of Lithuania.

Read more: Migration crisis in Baltics and Poland

"In legal terms, when we talk about people entering another country illegally, we talk about illegal migration, and the process is defined as follows: there is legal migration and there is illegal migration,“ says the professor.

He explains that legal migration takes place when people try to enter another country on a work or residence visa "in search of a better life and then appeal for asylum“.

Assessing the situation on Lithuania's border with Belarus, Gutauskas says that it is "neither legal nor illegal migration" as the regime in Belarus uses migrants as a political tool, forcing them to violate the established border crossing procedure.

The migrants are also considered vulnerable from a legal perspective. "Because they don't speak the language, they don't have any documents, and they are subjected to physical violence when they find themselves in a foreign country. We are talking about vulnerability in the context close to human trafficking," he says. "They are committing a crime and at the same time become vulnerable. It is therefore very difficult to talk about legal or illegal migration here."

According to Gutauskas, there have been many cases where individuals crossing the border in an unauthorised place are prosecuted.

"But cases where people cross the border in an unauthorised place and immediately apply for asylum, are an exception. This situation is dealt with by accommodating them in foreigners' registration centers and then processing their asylum applications,“ he says.

The current migrants are not identified when being turned back, and perhaps individual interviews could shed light on their true motives.

"We can write them off as economic migrants and say they are not asylum seekers. Yet there may be vulnerable people among them, who are in need of humanitarian aid and whose asylum application complies with the provisions of the Geneva Convention,“ Gutauskas says.

Threats to other vulnerable groups

The migrant pushback policy introduced in Lithuania in August last year has been a subject of much debate. Gutauskas argues that Lithuania has faced a dilemma between the state security interests and the violation of human rights: "People who are forcibly pushed into our territory are pushed back and sent to nowhere.“

According to him, measures are taken by the authorities, such as arrest and detention without trial, are becoming tolerated by the society. Migrants are said to be criminals, terrorists, full of diseases and a threat.

"Illegal migrants are treated at a lower standard than other people whose rights we must guarantee. It increases the likelihood that other social groups, such as convicts, can also be treated without regard for their human rights when they are identified as a security threat,“ he says.

The lawyer describes the situation of migrants detained in Lithuania as poor. They live in the uncertainty of asylum, and most of their applications are rejected. Translators are not easy to find, thus their right to information is violated. Also, previously, men and women were accommodated together, and there have been media reports of conflicts and cases of physical and sexual abuse.

"Of course, until we have the decisions of the European Court of Human Rights as to whether or not there has been a substantial violation of human rights, we can only speak in assumptions about whether the policy of turning back and detaining people without trial has been justifiable," says Gutauskas.

However, he argues that the decision to turn the migrants back is legally imperfect, but acceptable to control the situation in such exceptional circumstances.

To prove guilt is hard to do

The lawyer argues that it is clear that the regime in Belarus is using migrants as a political tool. According to the EU's border guard agency Frontex, after Lithuania refused to allow migrants mostly from Iraq to enter the country, Minsk began to negotiate with the authorities of Pakistan, Syria, and Afghanistan. "We can expect another flow of migrants," says Gutauskas.

Most of the migrant smuggling is carried out by criminals, but it is also possible to talk about the involvement of Belarusian officials in the process, according to the professor.

They push migrants into the territory of Lithuania and do not allow them to return to their countries of origin. But it is often difficult to prove the guilt of those smuggling the migrants, as they claim to be providing transportation services. And although the trafficking of humans is punishable by up to 10 years' imprisonment, "it is most likely that these people are motivated to do so by low risk and high money“.

The migration crisis in Lithuania has led to many initiatives to change legislation, notes Gutauskas. "The asylum application procedures have been shortened. However, it is not so easy to analyse the individual situation of an asylum seeker. It takes time to assess the situation in their country, their own interests, and whether they are really under threat,“ he says.

The professor adds that he was surprised by the authorities' decision not to allow the media to observe the pushback process.

"If journalists could see the whole process and publicise it to the society, perhaps the attitudes towards migrants would change. And the authorities would show that here we are – each case is treated individually, there are no elements of violence, no violation of human rights," he says.

"But there is no clear procedure. It is not clear how long each individual asylum case takes to be examined, and what criteria are used. Decisions not to grant asylum do not create precedents," adds Gutauskas. "This means referring to the presence of an economic migrant in a country without looking for a link to the conventional provisions that a person qualifies as an asylum seeker."

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