Suspensive Effect of Appeals before Administrative Courts of the Republic of Lithuania in Removal Cases

Dr. Jur. Irmantas Jarukaitis,
Vice-president of the Supreme Administrative Court of Lithuania; Agnė Kalinauskaitė, LL. M., Legal Consultant of the Legal Analysis and Information Department of the Supreme Administrative Court of Lithuania

Removal of foreigners from the territory of the Republic of Lithuania is governed by the Law on the Legal Status of Foreigners (which transposes, among other things, Directive 2008/115/EC1 ) and usually follows two stages. First, a decision to return a foreigner is taken on the grounds set out in the aforementioned Law, wherein a period for voluntary departure is set (usually from 7 to 30 days). Second, in cases where the foreigner does not voluntarily depart, a decision to remove the foreigner is adopted and enforced.

It should be noted that legal provisions concerning suspension of returnees’ removal pending court proceedings in Lithuania have undergone some changes recently.

Until 1 December 2015, the Law on the Legal Status of Foreigners (Article 128 para 2(1) provided for automatic suspensive effect of appeals against a removal decision, except for in cases when foreigners had to be removed because they posed a threat to public security or public order. Thus, in this type of situation there was no necessity to apply interim measures and suspend a removal decision 2.

However, there have been several court cases concerning suspension of return decisions, and that is because persons subject to a return decision, wherein a period for voluntary departure is set, would appeal against this decision, and ask the court to apply interim measures. Even though a decision to set a period for voluntary departure is not enforceable, the Supreme Administrative Court of Lithuania has decided on several occasions that this had not precluded the application of interim measures because, in the event that the applicant fails to voluntarily depart from the country, an enforceable decision to remove the applicant is adopted. Thus in cases where an applicant has requested an administrative court to apply interim measures suspending the decision which sets out a term for voluntary departure from Lithuania, the court would consider whether to apply interim measures based on the general norms governing application of interim measures that are laid down in Article 71 of the Law on Administrative Proceedings (Article 70 after amendments of the Law, which entered into force as of 1 July 2016). In these types of situation the burden of proof of existence of grounds laid down in Article 71 of the Law on Administrative Proceedings rested on the applicant3.

From 1 December 2015 onwards, the Law on the Legal Status of Foreigners does not provide for automatic suspensive effect of appeals against a removal decision anymore, and suspension of a removal decision is only granted when an administrative court applies interim measures suspending removal of the applicant, except for in cases when foreigners must be removed because they pose threat to public security or public order (Article 128 para 2(1) of the Law).

Until 1 July 2016, Article 71 of the Law on Administrative Proceedings specified that interim measures can be applied at any stage of the proceedings if non-application of interim measures would render enforcement of the court decision difficult or impossible.

In its case-law concerning application of interim measures suspending return decisions, the Supreme Administrative Court of Lithuania has held that, when deciding whether to apply interim measures, the court must assess whether there was a real threat that, failing to apply interim measures, the enforcement of the court decision would become more difficult or impossible, i.e. that should the court decide to annul the disputed act, reinstatement of the situation existing prior to its adoption would become more difficult or impossible. Real and effective reinstatement of the situation existing prior to its adoption, restoration and protection of infringed rights and lawful interests of the applicant, and effective enforcement of the court decision would become more difficult or impossible if the act that is disputed in the court proceedings would (likely) cause such negative consequences, the elimination of which, in case of a court decision favourable to the applicant, would become impossible or difficult.4

The Supreme Administrative Court of Lithuania has also noted that, even where possible difficulties in enforcing the court decision are established, the following circumstances must be taken into account:

  • Nature of the claim in the main proceedings;
  • Factual basis of the claim;
  • Rights granted by the disputed act, possible implementation of those rights and their influence on other persons;
  • Whether application of the interim measures according to the established circumstances would be in conformity with the pursued aim, would not infringe the principle of proportionality, the balance between the interests of the parties to the proceedings, and the public interest.5

Thus, a decision on whether to apply interim measures depended on the circumstances established in each case. The following examples could be mentioned as reflecting the main types of situations wherein interim measures had been applied in cases concerning returnees’ removal.

In a ruling of 9 October 20136 the Supreme Administrative Court of Lithuania was deciding whether to apply interim measures suspending a decision to remove the applicant wherein a period for voluntary departure was set. The applicant in the case had been living in Lithuania since 1995,when he arrived to Lithuania at the age of 5, together with his parents. He had graduated from high-school and college in Lithuania and had been working in a company that he had established in Lithuania in 2013. When considering whether to apply interim measures, the Supreme Administrative Court of Lithuania pointed out that the applicant had been living in Lithuania for a long time, had social and economic ties to Lithuania, and had his business in the country. The parents of the applicant had been living in Lithuania, the applicant could speak only Lithuanian and could not speak the language of the country of his origin, he had been raised according to Lithuanian customs and traditions, and thus he had no economic, social or family ties to his country of origin (the Republic of Azerbaijan). Furthermore, the administrative offences committed by the applicant were not particularly serious; therefore the Court did not consider that temporary suspension of the disputed decision would infringe the principle of proportionality, the balance between the interests of the parties or the public interest. The Court decided to apply interim measures as requested by the applicant.

In another ruling of 23 September 20147 concerning the application of interim measures suspending a return decision, the applicant was a director and owner of a company established and active in Lithuania. The Court noted that the applicant had social and economic ties to Lithuania, and had his business in the country. The applicant had explained that, in the event of removal, it might become difficult for the company to operate; the company had many outstanding commitments which could become difficult to meet if he was removed. The Court took into account the fact that if the applicant did not comply with the obligation to depart from the country, an enforceable decision to remove him would be adopted, and that would affect his legal status and possibility to enjoy his rights, furthermore, application of interim measures would allow the applicant to participate in the administrative proceedings wherein the decision to remove him had been challenged. The Court further pointed out that there was no basis to claim that application of interim measures in this case would infringe the principle of proportionality, balance of interests of the parties to the case or public interest, the respondent in the case also agreed to this position, and the Court applied interim measures suspending the decision to return the applicant. Interim measures were also applied in other similar cases, based on the facts that the applicants owned operating businesses in Lithuania8, and their removal would prevent them from personally participating in the administrative proceedings, wherein the decision to return them was challenged.9

In another ruling, adopted on 13 January 201210, the Supreme Administrative Court of Lithuania considered family ties to be of crucial importance. The applicant in the case had a husband and a child in Lithuania, and reasoned that, due to a conflict situation with her husband, she could not take the child abroad with her, because her husband would not consent to that. The Court noted that the applicant had filed for divorce, thus there was no reason to doubt the applicant’s statements that there was a conflict between the applicant and her husband, and that she could not take her son abroad. If interim measures were not applied, the interests of the child would be infringed; therefore the Court decided to apply interim measures and suspend the decision according to which she was obliged to leave Lithuania within 15 days.

From 1 July 2016 onwards, the provisions governing interim measures in the Law on Administrative Proceedings were amended, and now Article 70 of the Law provides that interim measures may be applied at any stage of the proceedings, if the participant to the proceedings substantiates the likely validity of the claim, and non-application of interim measures could cause serious harm that is irreparable or difficult to repair.

In decisions applying the recast law, the Supreme Administrative Court of Lithuania, when assessing the potential harm that could be caused by non-application of interim measures, also took into account the social and economic ties of the applicant. For example, in a ruling of 24 August 201611, the applicant was a CEO of a Lithuanian company, her under-18 children and husband had temporary residence permits, her son was ill, there was no evidence that the applicant would be causing any threat to public order and public security. The Court took those circumstances into account, as well as the fact that application of interim measures would provide the possibility for the applicant to personally take part in the administrative proceedings where the decisions to return the applicant to the Republic of Azerbaijan were challenged, and decided to apply interim measures.

On the other hand, there are some examples of the case-law where the mere fact of owning a company established in Lithuania and the fact that the applicant would not be able to personally participate in the administrative proceedings challenging the decision to return them, without furnishing sufficient proof of having social and economic ties to Lithuania, were held not to be a sufficient basis for the application of interim measures12.

To sum up, when deciding whether to apply interim measures in cases concerning the removal of foreigners, administrative courts in Lithuania assess the evidence provided by applicants, and consider the specific circumstances in each particular case. Operating businesses, existing family ties, and, in particular, the best interests of the child are taken into account, as well as the possibility for the applicant to take part in the proceedings challenging the decision to remove them (even though the latter circumstance alone does not seem to be decisive). In the majority of cases where the applicant relies on the above mentioned circumstances, interim measures are applied.

1. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals.
2. See, for example, Supreme Administrative Court of Lithuania, case No. AS2-273/2007 of 10 May 2007, where the Court rejected the request for interim measures by noting that the Law on the Legal Status of Foreigners provided for automatic suspension of a removal decision, thus, there was no point to decide on the issue of interim measures under the Law on Administrative Proceedings.
3. See, for example, Supreme Administrative Court of Lithuania, case No. AS63-277/2008 of 24 April 2008.
4. E.g. Supreme Administrative Court of Lithuania, case No. AS602-73/2012, 13 January 2012; case No. AS858-979/2014, 23 September 2014; case No. AS822-768/2013, 9 October 2013.
5. Ibidem.
6. Supreme Administrative Court of Lithuania, case No. AS822-768/2013, 9 October 2013.
7. Supreme Administrative Court of Lithuania, case No. AS858-979/2014, 23 September 2014.
8. Supreme Administrative Court of Lithuania, Case No. AS662-839/2014, 23 July 2014
9. Supreme Administrative Court of Lithuania, Case No. eAS-661-822/2016, 29 June 2016.
10. Supreme Administrative Court of Lithuania, Case No. AS602-73/2012, 13 January 2012.
11. Supreme Administrative Court of Lithuania, Case No. eAS-814-822/2016, 24 August 2016.
12. Supreme Administrative Court of Lithuania, Case No. AS-845-756/2016, 15 September 2016.

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