Luxembourg - Administrative Tribunal, 21 April 2017, 2017-04-21_39131

Country of Decision:
Country of Applicant:
Date of Decision:
21-04-2017
Citation:
2017-04-21_39131
Court Name:
Administrative Tribunal
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Headnote: 

Where an asylum application is made by an unaccompanied child, the tribunal must take into consideration the best interests of the child in its examination (for example, education). The decision includes a presumption of minority that the tribunal must rebut in order to allow for the transfer of the applicant. 

Facts: 

On 20 December 2016, the applicant applied for asylum which was followed by a hearing. On 05 January 2017, another hearing was conducted in order to determine the State responsible for this application according to the Dublin Regulation.

On 07 February, the Ministry informed the application of his future transfer to Poland, a decision which the applicant subsequently appealed.

Decision & Reasoning: 

In its interpretation of Art. 8 Dublin III, the tribunal referred to the CJEU jurisprudence regarding Art. 6 of Regulation 343/2003, which found that it was in the best interest of the child to remain in the country in which he had applied for international protection. The responsible State is thus the one in which the unaccompanied child has applied for asylum. Thus, according to the Tribunal, the criteria under Article 8 prevail over Article 18.

Nevertheless, another State may be found responsible to examine this application in the event that the applicant is an adult (this must be reasonably to adduce from the evidence provided in the case).

Bone tests were conducted in order to establish the age of the applicant. These tests were not unanimous and the tribunal noted the differing results, which meant that the age of the applicant was not established beyond doubt. Because of this uncertainty, the tribunal established a presumption of minority (which is based on Art. 20-4 of the Law of 28  December 2015).

The judge further took into consideration that the transfer of the applicant would severely impair the pursuit of his education in Luxembourg. 

 

Outcome: 

The tribunal accepted the appeal and negated the decision of the Ministry.

Observations/Comments: 

As a result of this decision, the Ministry must now rebut the presumption of minority for asylum-seekers in the event that there is no conclusive evidence establishing their age.  

The best interest of the child may also include their ability to attend school, which is an argument that should be used for unaccompanied minors. 

The original version of this summary was written by Passerell a.s.b.l. The translation into English was completed by Jessica Pradille.