On December 5th, 2016 the Supreme Administrative Court of Lithuania ruled that the case regarding the Lithuanian Migration Department‘s refusal to issue a temporary residence permit to a Belarusian man, who is married to his Lithuanian same-sex partner under the Danish law, will be referred to the Constitutional Court of the Republic of Lithuania. The investigation of the case will be suspended until the judgement of the Constitutional Court is being delivered.
The Lithuanian Migration Department refused to issue a temporary residence permit to a Belarusian man, who is married to his Lithuanian same-sex partner under the Danish law, on January 22nd, 2016. The couple appealed the Migration Department’s decision to Vilnius Regional Administrative Court and subsequently to the Supreme Administrative Court of Lithuania.
The Supreme Administrative Court of Lithuania has ruled that the investigation of the case should be renewed. The Court also ordered a referral to the Constitutional Court with a request to clarify whether the Lithuanian Law on Legal Status of Foreigners is synchronized with the Constitution of the Republic of Lithuania.
In its judgement, the Supreme Administrative Court of Lithuania stressed that under the Lithuanian Law on Legal Status of Foreigners, a temporary residence permit may not be issued to a foreigner on the basis of family reunification when a Lithuanian citizen registers same-sex marriage abroad, due to an imperative ban on same-sex marriages in Lithuania.
Furthermore, the judgement by the Supreme Administrative Court of Lithuania notes that same-sex relationships in its essence are consistent with the concept of family. “We commend the progressive decision by the Supreme Administrative Court of Lithuania. “It gives us hope that the status of same-sex couples as a family will not be question in Lithuania at some point in the future,” commented Vladimir Simonko, Executive Director of the National LGBT* rights organization LGL.
Under the Law on Legal Status of Foreigners, foreign nationals can apply for a residence permit on the basis of family reunification.
However, at the moment Lithuania, along with other 6 Member States of the EU, does not legally recognize same-sex partnerships. The legal status of cohabitating same-sex couples is not defined and they cannot make use of opportunities available for married couples, ranging from inheritance rights to receiving information about their partner’s health condition at medical establishments in case of an illness.
Nevertheless, the provisions governing free movement of persons are laid down in Directive 2004/38/EC on the right of EU citizens and their family members to move and reside freely within the territory of the Member States.
Family includes people married to EU citizens or registered partners, as well as their children. The marriage does not have to have been conducted in Lithuania, but this is the first, yet presumably not the last case where Lithuanian institutions have had to consider a same-sex marriage.