In the recent case M.A. v Valstybės sienos apsaugos tarnyba (C-72/22 PPU) the Court of Justice of the EU (CJEU) was called upon to assess the compatibility of national emergency legislation adopted to tackle the consequences of the mass influx of migrant population with EU law. It ruled that, in principle, even in the state of emergency, the national authorities are obliged to ensure access to asylum proceedings to foreign nationals and cannot impose detention measures on the grounds different from those foreseen in the EU instruments.
On 2 July 2021 a national emergency has been declared in Lithuania due to a mass influx of foreigners. Under the legislation applicable during the state of emergency, foreign nationals who have entered the Lithuanian territory in an unlawful manner could not make an application for asylum. Further, the legislation provided for a possibility to detain a third country national merely because he or she had entered Lithuania unlawfully. In the case at hand, M.A., a foreign national, was detained by Polish border guards when he was travelling with other third country nationals from Lithuania to Poland. He was handed over to Lithuanian authorities and placed in detention. During judicial proceedings, M.A. applied for international protection. The application was returned by the national authorities. The Lithuanian jurisdiction called upon to adjudicate upon the lawfulness of the M.A.’s detention decided to address two preliminary question to the CJUE. First, the Lithuanian judge wondered whether the legislation prohibiting a third country national who has entered and remains unlawfully in the territory of a Member State to lodge an application for international protection is compatible with Article 7(1) of directive 2013/32 (the “Asylum Procedures Directive”) read in conjunction with Article 4(1) of directive 2011/95 (the “Qualification Directive”). Secondly, the judge wanted to know whether under directive 2013/33 (the “Reception Conditions Directive”) an asylum applicant may be detained merely because he or she entered the territory of a Member State unlawfully.
First of all, the Court put emphasis on the distinction drawn by Article 6 of the Asylum Procedures Directive between the act of “making” (présenter) and “lodging” (introduire) the application for international protection. Only the act of “lodging” the application may be subject to formal requirements. According to Article 7(1) of the Asylum Procedures Directive “each adult with legal capacity has the right to make an application for international protection on his or her own behalf.” The Court recalled that the Asylum Procedures Directive pursues the objective of guaranteeing effective access to the procedure for granting international protection. It then underlined that the right to make an application for international protection constitutes the prerequisite of effectiveness of the fundamental right to asylum, as guaranteed by Article 18 of the Charter (paragraph 61). It observed that the legislation that does not allow a foreigner who has entered and remains unlawfully in the territory of a Member State to make and to lodge an application for asylum prevents him or her from actually benefiting (jouir effectivement) from the right enshrined in Article 18 of the Charter.
The Court then responded to the argument raised by the Lithuanian government according to which the restriction of the right to apply for international protection could be justified on the grounds of public order or internal security. Article 72 TFEU indeed specifies that the rules governing the Area of Freedom, Security and Justice (including those relating to asylum and migration) “shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.” Yet, the derogation foreseen in this provision shall be subject to strict interpretation. The mere invocation of the concerns for public order and internal security in general terms does not exempt the Member States from the obligations resulting from EU law. In the case at hand, the Lithuanian authorities did not explain how the restriction of the right to lodge an application for asylum guaranteed protection of public order and internal security.
Moving to the second preliminary question, the Court observed that pursuant to Article 8(2) of directive 2013/33 (the “Reception Conditions Directive”) “an applicant for international protection may be held in detention only where, following an assessment carried out on a case-by-case basis, that is necessary and where other less coercive measures cannot be applied effectively.” Moreover, Article 8(3) lists exhaustively the various grounds which may justify recourse to detention. Importantly, the unlawful residence of an asylum seeker in the territory of the Member state does not appear in this list. It was yet necessary to verify whether the detention measure at hand could be justified under Article 8(3), point (e) of the Reception Conditions Directive providing that” (a)n applicant may be detained […] when protection of national security or public order so requires”. The Court recalled that the national authorities could rely on the presence of threat to national security or public order “only if the applicant’s individual conduct represents a genuine, present and sufficiently serious threat, affecting a fundamental interest of society or the internal or external security of the Member State concerned” (paragraph 89). Such a threat did not arise from the circumstance that the asylum seeker entered and resided in Lithuania unlawfully. The Court concluded that Lithuanian legislation was incompatible with Article 8(2) and (3) of the Reception Conditions Directive.
M.A. is one of the rare cases in which the Court has referred explicitly to effectiveness (effet utile) of fundamental right to asylum guaranteed by Article 18 of the Charter. In the judgement, the Court relied extensively on the effectiveness-based method of interpretation (paragraphs 61-65) to put emphasis on the prominent role of the access to asylum procedures in guaranteeing adequate protection of this right. The Lithuanian legislation limiting the possibility to make an application for international protection constituted a direct threat to the right to asylum. Moreover, the Court significantly circumscribed the possibility for the Member States to invoke the reasons of public order in the area of asylum and migration. The recourse to Article 72 TFEU and to derogations foreseen in the secondary law instruments must be duly justified and based on the individual, case-by-case assessment. The limitation of discretion of State authorities in this regard is understandable given the consequences the application of the derogatory regimes may have on the protection of fundamental rights of the most vulnerable groups.
Alicja Słowik, Effectiveness of the right to asylum: clarifications on the application of EU asylum rules in the situations of emergency, actualité du CEJE n°19/2022, 2 août 2022, disponible sur www.ceje.ch
 See also the cases Országos (C‑924/19 PPU and C‑925/19 PPU), paragraphs 192 and 196 and Commission v. Hungary (C‑808/18), paragraph 102.