VU Law Professor: Migration at the Border of Belarus is Neither Legal nor Illegal

Migrants entering Lithuania from Belarus are subject to lower standards, which may also lead to disregarding the rights of other vulnerable groups by labeling them as a threat, says Aurelijus Gutauskas, professor at the Faculty of Law of Vilnius University and judge at the Supreme Court of Lithuania. In the VU podcast „Science without Sermons“, he evaluated Lithuania's migrant turnback policy and asylum application procedure from a legal perspective.

According to Professor Gutauskas, the migration crisis that began last spring, during which over 4,000 migrants entered Lithuania from Belarus and thousands more were turned back, has widened the range of terms: it is not only illegal migration that is being referred to, but also refugees, asylum-seekers, and those who have illegally entered and are illegally staying on the territory of Lithuania.

„In legal terms, when we talk about people entering another country illegally, we talk about illegal migration, and the process is defined as follows: there is legal migration and there is illegal migration“, says the professor.

He explains that legal migration takes place when people try to enter another country on a work or residence visa „in search of a better life and then appeal for asylum“.

Assessing the situation on the Lithuania–Belarus border, Professor Gutauskas says that it is „neither legal nor illegal migration“, since the regime in Belarus uses migrants as a political tool, forcing them to violate the established border crossing procedure.

The professor points out that migrants are considered vulnerable from a legal perspective: „Because they don't speak the language, they don't have any documents, and they are subjected to physical violence when they find themselves in a foreign country. We are talking about vulnerability in the context close to human trafficking. They are committing a crime and at the same time become vulnerable. It is therefore very difficult to talk about legal or illegal migration here.“

According to Professor Gutauskas, there have been many cases where individuals crossing the border in an unauthorized place are prosecuted.
„But cases where people cross the border in an unauthorized place and immediately apply for asylum, are an exception. This situation is dealt with by accommodating them in foreigners' registration centers and then processing their asylum applications,“ he says.
The professor explains, that currently migrants are not identified when being turned back, and perhaps individual interviews could shed light on their true motives.

„We can write them off as economic migrants and say they are not asylum seekers. Yet there may be vulnerable people among them, who are in need of humanitarian aid and whose asylum application complies with the provisions of the Geneva Convention,“ assures the judge of the Supreme Court of Lithuania.

Threats to other vulnerable groups

The migrant turnback policy introduced in Lithuania in August 2021 has been a subject of much debate. Professor Gutauskas argues that in this case we are faced with a dilemma between the state security interests and the violation of human rights: „People who are forcibly pushed into our territory are pushed back and sent to nowhere.“

According to Professor Gutauskas, measures are taken by the authorities, such as arrest and detention without trial, are becoming tolerated by society. Migrants are said to be criminals, terrorists, full of diseases and a threat.

„Illegal migrants are treated at a lower standard than other people whose rights we must guarantee. It increases the likelihood that other social groups, such as convicts, can also be treated without regard for their human rights when they are identified as a security threat,“ he says.

The lawyer describes the situation of migrants detained in Lithuania as poor. They live in the uncertainty of asylum, and most of their applications are rejected. Translators are not easy to find, thus their right to information is violated. Also, previously, men and women were accommodated together, and there have been media reports of conflicts and cases of physical and sexual abuse.

"Of course, until we have the decisions of the European Court of Human Rights as to whether or not there has been a substantial violation of human rights, we can only speak in assumptions about whether the policy of turning back and detaining people without trial has been justifiable," says Professor Gutauskas.

However, he argues that the decision to turn the migrants back is legally imperfect, but acceptable to control the situation in such exceptional circumstances.

To prove guilt is hard to do

The lawyer argues that it is clear that the regime in Belarus is using migrants as a political tool: according to data from the European Police Office and the European Border and Coastguard Agency Frontex, after Lithuania refused to allow migrants from Iraq to enter the country, Minsk began to negotiate with the authorities of Pakistan, Syria, and Afghanistan: „We can expect another flow of migrants.“

Professor Gutauskas says that most of the migrant smuggling is carried out by criminals, but it is also possible to talk about the involvement of Belarusian officials in the process. They push migrants into the territory of Lithuania and do not allow them to return to their countries of origin.
According to the law professor, it is often difficult to prove the guilt of those smuggling the migrants, as they claim to be providing transportation services. And although the trafficking of humans is punishable by up to 10 years' imprisonment, „it is most likely that these people are motivated to do so by low risk and high money“.

The migration crisis in Lithuania has led to many initiatives to change legislation, notes Professor Gutauskas. „Talking about amendments to the Law on the Legal Status of Foreigners, asylum application procedures have been shortened. However, it is not so easy to analyze the individual situation of an asylum seeker. It takes time to assess the situation in their country, their own interests, and whether they are really under threat“, he says.
The professor adds that he was surprised by the authorities' decision not to allow the media to observe the turnback process.

„If journalists could see the whole process and publicize it to the society, perhaps the attitudes towards migrants would change. And the authorities would show that here we are – each case is treated individually, there are no elements of violence, no violation of human rights.

But there is no clear procedure. It is not clear how long each individual asylum case takes to be examined, and what criteria are used. Decisions not to grant asylum do not create precedents. This means referring to the presence of an economic migrant in a country without looking for a link to the conventional provisions that a person qualifies as an asylum seeker", he says.