The United Nations Committee on the Rights of the Child refers for the first time an individual complaint to the Government in S.R.H.P. and A.O.C.H. v. Lithuania

October 25, 2023

In 2022, Lithuania ratified the Optional Protocol to the United Nations Convention on the Rights of the Child on a communications procedure. This legislation has enabled an individual complaint procedure, which gives children the opportunity to complain to the United Nations when their rights are violated and the legal system of the country where the child is living is not able to resolve the problem.

In order to exercise their right to family reunification, the applicants applied to the State authorities for a mediation letter in English addressed to the Hungarian Embassy in Cuba for the issuance of a single-entry visa, stating that the children were travelling for the purpose of family reunification, and that they would be issued with a residence permit in the Republic of Lithuania upon arrival. The competent authorities of the State refused to comply with such a request by the applicants, stating that they do not mediate and do not issue mediation letters for visas. The applicants’ appeal went all the way to the Supreme Administrative Court of Lithuania, but was rejected – ignoring the expert conclusions of the State Child Rights Protection Service that the contested decision violates the rights of the child.

This situation has highlighted the inability of the legal system to deal with this issue properly, as the current legislation does not allow parents in Lithuania to apply for the entry of their children. It is clear that this lack of a systemic approach is extremely damaging – individuals face uncertainty about their children, and children suffer irreparable harm when separated from their parents.

According to Article 40(1)(3) of the Law of the Republic of Lithuania on the Legal Status of Aliens, in the case of family reunification, aliens are issued a temporary residence permit in the Republic of Lithuania. According to the Description of the Procedure for Issuing Temporary Residence Permits to Aliens in the Republic of Lithuania, the children of the applicants do not have the possibility to apply for a residence permit in Lithuania. Currently, foreigners arriving for the purpose of family reunification must apply to the Migration Department for a permit if they are legally present in the territory of the Republic of Lithuania. Under the current legislation, a parent can apply for a residence permit for a child under the age of 16. Therefore, in order to apply for a residence permit on the basis of family reunification, the children must first have entered the Republic of Lithuania legally. Such a permit can only be issued after their arrival in Lithuania.

The law stipulates that an application for a residence permit in Lithuania on the basis of family reunification can be submitted to a Lithuanian diplomatic mission, but there is no such mission in Cuba, and the children themselves would not be able to apply for such a permit without their parents representing them, not even in the country where such a mission exists. . In addition, children arriving for the purpose of family reunification do not meet the criteria for a Schengen visa set out in Article 14(4) of the EU Visa Code. The existing procedures do not allow applicants to be reunited with their minor children and the authorities refuse to help.

By their complaint, the applicants stress that the existing national legislation, which prevents family reunification, violates the Convention. Violations include articles on the best interests of the child as a priority, the child’s right to life and healthy development, the right to know and be cared for by his or her parents, and the child’s right to preserve his or her own identity, including nationality. The applicants also consider that the right of the child not to be separated from his or her parents against their will, and the right of the child to have regular contact with his or her parents, as enshrined in the Convention, have been violated. As a guarantee of the best interests of the child, the Convention also enshrines the principle of parental responsibility for the child’s upbringing and development, which the State is obliged to protect. Among other things, the Convention directly enshrines the right of children to family reunification.

The case was initiated by the Human Rights Monitoring Institute together with the law firm ReLex as one of the strategic cases aiming at the judicial assessment of the fundamental flaws in the application of the law in the Lithuanian migration and asylum system and the correction of the flawed practice of the institutions. The case is part of the project “Crossing the border: monitoring and advocating for the rights of migrants and asylum seekers”, supported by the Active Citizens Foundation.

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