Question: Provisional measures on asylum seekers in Poland, Latvia and Lithuania

Together with seven other MEPs from our group, I asked the Commission on 1 October 2021 whether it considered Poland's imposition of a state of emergency and refusal to allow asylum procedures at the border to be compatible with EU law. We also asked what measures the Commission was taking regarding illegal pushbacks and whether it was examining whether the deployment of EU agencies in Latvia and Lithuania was compatible with the legal framework. The Commission replies that it condemns the actions of Belarus, but this was not at all in question. The Commission also states that Member States must of course comply with EU law, but that the Commission does not have the power to enforce certain measures in the event of violations. The Commission does not condemn the clear human rights violations by Member States, but at least Mrs Johansson states that the principle of non-refoulement applies, even if it is not stated that states such as Poland obviously do not comply with it.

The whole question with answers in several languages can also be found at here.

Our request

Subject: Provisional measures concerning the situation of asylum seekers in Poland, Latvia and Lithuania

Following a series of legislative changes in Poland, Latvia and Lithuania, security forces there have reportedly prevented dozens of asylum seekers from entering and applying for asylum at the EU border with Belarus, resulting in several deaths. On September 8, 2021, the European Court of Human Rights issued a preliminary decision ordering Lithuania not to return five Afghan asylum seekers to Belarus. According to Reuters, this decision was violated on September 9, 2021. On 27 September 2021, the European Court of Human Rights extended its previous interim orders by requiring Poland and Latvia to provide food, care and accommodation to the individuals concerned, as well as allowing them access to lawyers.

1. whether the Commission considers that the state of emergency imposed in the respective countries, the legislative amendments and the subsequent measures taken by Poland, Latvia and Lithuania comply with the Schengen acquis and EU asylum law, and in particular with the provisions requiring Member States to grant access to asylum procedures, including at the border?

2. what action the Commission has taken following the interim measures, in particular with regard to the deportation of persons by the Lithuanian authorities on 9 September 2021?

3. whether the Commission has examined whether the presence of EU agencies in Latvia and Lithuania is compatible with the legal frameworks under which the agencies must operate?

Answer given by Ylva Johansson on behalf of the European Commission on 3.12.2021:

The Commission strongly condemns the instrumentalisation of migrants for political purposes by Belarus. It is in continuous dialogue with the national authorities of Lithuania, Latvia and Poland, including on national emergency laws and their compatibility with EU law.

The Commission is aware of various interim measures adopted by the European Court of Human Rights in relation to the exceptional situation at the border with Belarus in several cases against Lithuania, Latvia and Poland.

The Commission does not have the power to enforce interim measures of the European Court of Human Rights. In the management of external borders and in the application of the provisions of the Schengen Borders Code[1] Member States are obliged to guarantee the right of access to an international protection procedure and to respect the principle of non-refoulement in line with the Union acquis on asylum and the Charter of Fundamental Rights of the European Union.

The Commission is also in close contact with international human rights organisations and the EU agencies to ensure that each agency provides the necessary assistance to the Member States concerned within its respective mandate.

[1] Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L77, 23.3.2016, p.1).