The Vilnius Regional Administrative Court issued a ruling in case No eI2-2374-1066/202, in which it found that there is no legal basis for refusing to accept an application for a residence permit on the basis of a work contract when a person has applied for asylum in Lithuania.
The applicant in the case came to Lithuania on humanitarian grounds because of the threat he faced in his country of origin. The applicant was issued a visa and a residence and work permit. When his visa expired and he was unable to return to his country of origin due to a real risk of persecution there, the applicant applied to the Migration Department for asylum. The applicant has also applied for a residence permit on the basis of a work contract.
The Migration Department issued the applicant with an alien registration certificate, which does not confer the right to work, and did not issue a residence permit on the basis of a work contract. Following a further request, the Department pointed out that the law does not give asylum seekers the right to work, and that the applicant’s application for a residence permit on the basis of a work contract had not been registered and examined at all.
The applicant appealed to the Vilnius Regional Administrative Court, asking the Court to annul the decision of the Migration Department, to order the Department to issue the alien’s registration certificate confirming his/her right to work, and to order the Department to examine the application for a residence permit on the basis of a work contract.
The Court examined the applicant’s complaint and found that the applicant is legally present in Lithuania as an asylum-seeker and, in accordance with Art. 28(1) of the Law on Legal Status of Aliens and point 11 of the Procedure for Issuing Temporary Residence Permits to Aliens in the Republic of Lithuania, an alien who is legally residing in the Republic of Lithuania shall submit an application for a temporary residence permit to the Migration Department. The Court found that the refusal of the Migration Department to accept the application for a temporary residence permit did not comply with any of the grounds applicable to such decisions under the legislation, i.e. there was no legal basis for refusing to accept the applicant’s application. In the light of the above, the Court partially upheld the applicant’s complaint and ordered the Migration Department to re-examine the issue of accepting the applicant’s application for a temporary residence permit on the basis of a work contract.
However, the Court did not address in its judgment the circumstances in which persons who have humanitarian residence and work permits who have applied for asylum may lose their right to work, on the ground that the Law on the Legal Status of Aliens provides that asylum seekers acquire such a right after 6 months, provided that no asylum decision has been taken within that period, i.e. if they were to be subject to that provision of the Law they would be deprived of the right to work which they had on the basis of their humanitarian permit. Thus, the application of the law in this way potentially discourages humanitarian permit holders from applying for asylum, even though they cannot return to their countries of origin due to persecution or the threat of military aggression, and would have obvious grounds for asylum, i.e. refugee status or subsidiary protection.
An appeal to the Supreme Administrative Court of Lithuania will be prepared in order to obtain a judicial assessment of this situation, which potentially affects a wide range of persons holding humanitarian permits, and to obtain the court’s interpretation of the correct application of the law in such cases.
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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