“The decision is to refuse a permit to temporarily reside in Lithuania on the basis provided,” Tomas Berčinskas, an adviser to the Interior Minister, told BNS.
The Migration Department’s decision can be appealed within 14 days at Vilnius Regional Administrative Court.
Evelina Gudžinskaitė, acting head of the Migration Department, said the decision was made in accordance with the position of the Ministry of the Interior.
“Since this case was the first of its kind and it is setting a precedent, we turned to the Ministry of the Interior for an opinion, as this institution is responsible for migration policy,” she said.
“The Ministry of the Interior responded that same-sex marriages are not allowed in Lithuania and such a marriage is not recognized in Lithuania,” she said.
Under the law concerning the legal status of foreigners, foreign nationals can apply for a residence permit on the basis of family reunification.
Family includes people married to EU citizens or registered partners, as well as their children. The marriage does not have to been conducted in Lithuania, but this was the first case where Lithuanian institutions had to consider a same-sex marriage. According to Lrytas.lt, the gay couple got married in the Netherlands.
Possible violation of free movement rules
Before making the decision on issuing the residence permit, the Migration Department consulted the European Law Department under the Ministry of Justice, which said that there were no obstacles to satisfying the application.
Although EU laws do not put member-states under the obligation of recognize same-sex marriages, denying residence permits does not make sense, as such right is guaranteed to all family members, the European Law Department said in its conclusion.
“(…) it does not make sense to reject the right to residence to a spouse of an EU citizen, when the marriage was concluded in line with the rules of a specific member-state and is acknowledged by 13 European countries,” reads the document signed by the department’s chief Deividas Kriaučiūnas.
According to the document, the denying residence for a spouse in a same-sex marriage may violate the free movement of people guaranteed by the EU.
“(…) if a person is not allowed to accompany his same-sex spouse he married in another member-state on a trip to a host country, in certain cases this can be deemed a restriction on the free movement of persons guaranteed by the EU primary law,” reads the conclusion drafted at the request of the Migration Department.
However, the Migration Department gave more credence to an opinion from the Ministry of the Interior.
The ministry said in its finding that by satisfying the Belarusian man’s application, Lithuania would recognize a same-sex marriage, which would put the government in a controversial situation “amid the current stance of the majority of Lithuanian citizens and the resultant will of legislators”.