The court rejected a Belarusian man’s appeal against the Migration Department’s refusal to issue him a residence permit to stay in Lithuania.
In September 2015, a male Belarusian married to a Lithuanian man applied to the Lithuanian migration authorities to be allowed to reside in Lithuania together with his spouse.
The Law on the Legal Status of Aliens does not raise any formal obstacles to the reunification of same-sex spouses — foreign nationals married to Lithuanian citizens are eligible for residence permits on the grounds of family reunification.
The law defines family members as spouses or partners to a registered (civil) partnership agreement, minor children and foster children. The law does not specify that the marriage in question must be between members of the opposite sex.
The Migration Department, dealing with an application such as this for the very first time, shied away from making a decision and asked the Ministry of the Interior (responsible for formulating migration policies in Lithuania) to clarify what course of action should be taken in this situation.
The Ministry of the Interior thought that no permit should be issued in this case. In their view, since the Civil Code of Lithuania prohibits same-sex unions, it would be impossible to register them with the Civil Registry. The ministry deemed such registration to be a necessary requirement to obtaining a residence permit, even though the Law on the Legal Status of Aliens itself does not contain any such requirement.
The European Law Department under the Ministry of Justice reached the opposite conclusion — in their view, those who marry an EU national must be allowed to enjoy the rights available to them under Directive 2004/38/EC for the free movement of persons, regardless of their gender, sexual orientation, race, religion or any other aspect.
In the end, the Migration Department rejected the application, reasoning that since the marriage would be illegal under Lithuanian law, it is impossible to claim family reunification. The applicant then appealed to the Vilnius Regional Court.
Having examined the case in a closed session, the above court of first instance agreed with the arguments put forth by the Migration Department and dismissed the appeal of the Belarusian national.
“When it comes to dealing with homosexual issues in Lithuania, public opinion still trumps the principle of clarity and legal certainty,” claimed Natalija Bitiukova, Deputy Director of the Human Rights Monitoring Institute.
“This decision infringes upon the applicants’ legitimate expectations. In order to obtain a residence permit, the person in question must meet the requirements set out in the Law on the Legal Status of Aliens and, in this case, all of the requirements have in fact been met.”
According to Bitiukova, while they wouldn’t be recognized as spouses in civil matters, including inheritance law, that wasn’t the point of their application to the Migration Department. “What they in fact asked for was to be recognized as family members for the purposes of obtaining one fairly narrow but nonetheless important right, namely, to be able to legally reside in the Republic of Lithuania. And that is a right that they actually are entitled to under the Law on the Legal Status of Aliens.”