Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The Court determined the Member State responsible for examining an asylum application lodged by an unaccompanied minor with reference to article 24 of the Charter. Specifically, by interpreting article 6 of the Dublin Regulation in light of the best interests of the child, it found that, in principle, that state would be the Member State where the unaccompanied minor is physically present at the time of the proceedings, having lodged an application there, regardless of whether or not they have previously lodged an application in another Member State.
The applicants arrived in the United Kingdom as unaccompanied minors and lodged applications for asylum on arrival or shortly after. Having established that they had already lodged an application for asylum in other Member States (Italy and the Netherlands), the United Kingdom authorities requested the authorities in those Member States to take them back in accordance with the relevant provisions of Regulation No 343/2003 (Dublin Regulation), which they agreed to do. However, MA’s and DA’s transfers were not carried out, and, while BT did end up being transferred to Italy, she was then able to return to the United Kingdom following a decision by the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court). They all brought actions before the High Court to challenge the legality of their transfers. In the meantime, the Secretary of State decided to, nevertheless, examine their asylum applications pursuant to Article 3(2) of the Dublin Regulation and had already granted MA and BT refugee status at the time the case was referred to the CJEU. He subsequently invited the applicants to withdraw their actions against the state, which all they declined to do.
The High Court ended up dismissing their claims in the main proceedings and held that an unaccompanied minor claiming asylum and having no family member legally present in the territory of one of the Member States is liable to be removed to the Member State where he first made an asylum application. MA, BT and DA appealed against that judgment to the Court of Appeal (England and Wales) (Civil Division), which in turn referred a request for a preliminary ruling to the CJEU.
Is the second paragraph of Article 6 of Regulation No 343/2003 to be interpreted as meaning that, where an unaccompanied minor with no member of his family legally present in the territory of a Member State has lodged asylum applications in more than one Member State, the Member State to be designated the ‘Member State responsible’ is that with which that minor lodged his first application, or that in which the minor is present after having lodged his most recent asylum application there?
The Court noted that the second paragraph of Article 6 of the Dublin Regulation must be interpreted in the light of its objective, which is to focus particularly on unaccompanied minors, as well as in the light of the main objective of the regulation, which, as stated in recitals 3 and 4 in the preamble thereto, is to guarantee effective access to an assessment of the applicant’s refugee status. Since unaccompanied minors form a category of particularly vulnerable persons, it is important not to prolong more than is strictly necessary the procedure for determining the Member State responsible, which means that, as a rule, unaccompanied minors should not be transferred to another Member State.
Furthermore, the Court recalled that the regulation must observe the fundamental rights and principles which are acknowledged in particular in the EU Charter of Fundamental Rights (preamble, recital 15), and that, according to article 24(2) of the Charter, in all actions relating to children the child’s best interests are to be a primary consideration. Thus, article 6 of the Dublin Regulation cannot be interpreted in such a way that it disregards that fundamental right. In particular, the Court found that, in the interest of unaccompanied minors, it is important not to prolong unnecessarily the procedure for determining the Member State responsible, and to ensure that unaccompanied minors have prompt access to the procedures for determining refugee status.
In the light of the above considerations, the Court answered the question referred to it as follows: the second paragraph of Article 6 of Regulation No 343/2003 must be interpreted as meaning that, in circumstances where an unaccompanied minor with no member of his family legally present in the territory of a Member State has lodged asylum applications in more than one Member State, the Member State in which that minor is present after having lodged an asylum application there is to be designated the ‘Member State responsible’ (paras 54-61, 66).
Asylum Procedures Directive 2005/85/EC
The application of the EU Charter of Fundamental Rights to asylum procedural law
Handbook on European law relating to asylum, borders and immigration
Case Study - Dublin transfer of unaccompanied minors