A sudden influx of migrants at the EU’s eastern borders during 2021 added pressure on national asylum systems, especially in countries which had never experienced such high numbers of third-country nationals trying to enter their territory. The European Commission proposed temporary asylum and return measures to assist Latvia, Lithuania and Poland to manage the emergency situation and adequately react to a hybrid attack by Belarus in instrumentalising asylum seekers (see Section 2).901 During the escalations on the borders of Belarus, there were reports of hindered access to procedures (see Section 4.1) and access to legal information and assistance in Lithuania and Poland. Since August 2021, civil society organisations, international organisations and European institutions continuously called on these two countries to respect the right to asylum and to grant lawyers and other stakeholders access to the border and transit zones (see Section 4.1).902  

In an effort to address the growing concern, the ECtHR adopted interim measures between 20 August and 3 December 2021 in cases submitted by asylum applicants against Poland and Lithuania.903  In one application against Poland, the ECtHR indicated to the authorities to allow direct contact between lawyers and applicants when the applicants were physically present on Polish territory or to grant access to the applicant’s lawyer to the Polish border zone. In other cases, interim measures were lifted or not extended because representatives lost contact with the applicants or failed to respond to court requests. 

The Law on the Legal Status of Aliens, Article 71(1) was modified in Lithuania in July 2021,904  allowing restrictions to be placed on contact between legal service providers and asylum applicants during a state of emergency. The legislative amendment received high criticism from national and international actors for breaching fundamental procedural safeguards defined in international and EU laws by making it excessively difficult for third-country nationals to access the asylum procedure.905  ECRE highlighted that these restrictions interfere with the provision of legal aid and limit the ability of an asylum applicant to properly prepare and cooperate with the authorities.906  In addition, UNHCR commented on other amendments, namely the shorter appeal deadline against a negative decision, affecting access to an effective remedy and access to legal aid. It recommended an extension to 15 days for an appeal to allow applicants enough time to seek qualified legal counselling (see Section 4.5).907  However, this article was repealed on 1 January 2022.

Similarly in Poland, international and civil society organisations denounced restrictions on accessing the border and transit zones, which were put in place through legislative amendments in August 2021.908  The Council of Europe’s Commissioner for Human Rights reiterated concerns over the lack of explicit guarantees on accessing lawyers at the border zones,909  while UNHCR noted that the legislative changes meant that third-country nationals would be subject to the return procedure without receiving free legal aid to appeal a return decision.910  The National Bar Association in Poland condemned the practice of the Border Guard officers who hinder access to legal assistance and the right to an effective remedy by conducting, for example, unnecessary verifications on the validity of power of attorneys.911

The Polish Border Guard underlined that during this time there were many attempts to cross the border by force and with the use of dangerous items. There were also provocations by the Belarusian special services which were addressed to the Polish Border Guard officers and Polish Armed Forces. The provocations included: incidents of Belarusian officers aiming weapons at people on the Polish side, marked shooting or firing likely with the use of blank ammunition and the use of pyrotechnics.

Earlier in the year, an amendment to the Law on the Legal Status of Aliens entered into force in Lithuania in March 2021, clarifying the scope of free legal assistance as covering solely asylum procedures at the national level and thus excluding cases submitted before European courts. In practice, in a recent report following a visit to the Kybartai Foreigners Registration Centre, the Lithuanian Ombudsperson noted unclarities and a lack of information on the appointment of state-funded lawyers and reiterated that the right to receive free legal aid must be put into practice.912

In Latvia, a reception centre was placed under quarantine in the context of COVID-19 measures, hindering the access of legal counsellors and interpreters to the facility and to applicants. They could resume their work as soon as the pandemic allowed.913