Upholding the right to asylum in times of its "instrumentalization" by neighbouring states: Valstybės sienos apsaugos tarnyba

ENAsylum is a controversial topic and the object of heated political debate and practical controversies. “Pushback” allegations have made headline news recurrently over the past years, in particular with regard to Greece, Hungary, Croatia, Spain (in Ceuta and Melilla), and, more recently, Poland and Lithuania in the standoff with the Belarusian dictator Lukashenko. These allegations have rarely reached the ECJ, with the notable exception of preliminary references by Hungarian courts and infringement proceedings the Commission has initiated against Hungary. Domestic courts from other countries have not referred similar cases, either in the absence of domestic claimants or out of hesitation. Judgments by the European Court of Human Rights are a rare occurrence as well, which, moreover, come with years of delay. Against this background, the importance of the ECJ judgment under discussion stands out. It responded to a Lithuanian reference and was decided in an urgent procedure. While the Court was crystal clear on the illegality of the Lithuanian legislation, it evaded resolving some matters of constitutional significance.That had to do, as we shall see, with a surprisingly passive stance of the Lithuanian Government, but it also reflects the absence of an elaborate reasoning, on the part of judges, that would help clarify critical questions of principle. Even so, the ruling presents us with yet another indication that the Court has abandoned the “administrative mindset” which had defined the judgments on migration after the policy crisis of 2015/16. [...].