CYIL vol. 13 (2022)

VIOLETA VASILIAUSKIENĖ CYIL 13 ȍ2022Ȏ the border crossing points, where the authorities know that those persons may ask for asylum in Lithuania. In Lithuanian legislation it is indicated that the entry to Lithuania is regulated by the provisions of Regulation (EU) 2016/399 (the Schengen Borders Code) shall apply to aliens entering and leaving the Republic of Lithuania. 51 It is also indicated that “The presence of aliens who have applied for asylum at border control points, transit zones or shortly after the illegal crossing of the state border of the Republic of Lithuania in the places of temporary accommodation specified in Paragraph 6 of this Article shall not be considered as entering the territory of the Republic of Lithuania.” 52 Further rules on entry to Lithuania were indicated above. Summarizing the Lithuanian policy, which was discussed above, the border guard officers were empowered to apply the pushback policy, if the migrants were trying to cross the border in places not suited for crossing and to direct them to official border crossing points. Therefore, even if they physically crossed the border and found themselves in the border region (5 km from the border) their actions were not considered entry to Lithuania. The Convention on the Status of Refugees does not specify the exact concept of entry to the territory of the state. The only regulation closest to this question is Article 31, which states that “The Contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” 53 Several questions arise here. Can this Article be explained as to allowing this illegal entry also via non-designated crossing of the border? Is the pushback policy legal? And if the fence had already been built, would the evaluation be different? We can state that Convention does not explicitly answer those questions. “There is nothing in the Geneva Convention that would call into doubt the legitimacy of border control measures as understood, in particular, by the Schengen Borders Code. In fact, the Geneva Convention assumes that refugees have already crossed the relevant borders, as it initially referred to refugee situations.” 54 Firstly, the question about “coming directly from the territory where their life or freedom was threatened” is analysed by the UN Refugee Agency, which indicates that “Refugees are not required to have come directly from their country of origin. The intention, reflected in the practice of some States, appears to be that other countries or territories passed through should also have constituted actual or potential threats to life or freedom, or that onward flight may have been dictated by the refusal of other countries to grant protection or asylum, or by the operation of exclusionary provisions, such as those on safe third country, safe country of origin or time limits.” 55 51 Įstatymas dėl užsieniečių teisinės padėties [Law on the Status of Aliens] Valstybės žinios, 2004, Nr. 73-2539. Article 5(1). 52 Ibid, Article 5(2). 53 189 UNTS 137, Article 31. 54 ŠIMONÁK, V., SCHEU, H. Ch. ‘Back to Geneva: Reinterpreting Asylum in the EU’ (Wilfred Martens Centre for European Studies, 2021) accessed 31 May 2022. 55 GOODWIN-GILL, G. S. ‘Article 31 of the 1951 Convention relating to the Status of Refugees: Non-penalization,

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