Luxembourg - Administrative Tribunal, 36547, 15 July 2015

Country of Decision:
Country of Applicant:
Date of Decision:
15-07-2015
Citation:
36547
Court Name:
Administrative Tribunal, Second Chamber
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Headnote: 

In order to justify detention, the Ministry must establish that there is a real risk that the applicant will abscond and that this is not simply a presumption. The results of the bone tests can be put to the side if the judge believes that it is impossible to determine the age of the applicant in this manner. 

Facts: 

On 06 September 2015, the applicant applied for international protection in Luxembourg. On 01 July 2015, the Minister informed the applicant that, according to the Dublin Regulation, Luxemburg wasn’t competent to examine the applicant’s request but that Spain was. The applicant was placed into administrative detention that same day. On 06 July 2015, the applicant appealed the Ministry’s decision to transfer them to Spain. 

Decision & Reasoning: 

The tribunal noted that a Member State is responsible for an unaccompanied minor’s application if it is in the child’s best interest. 

The tribunal decided that bone testing could not determine, beyond doubt, the age of the applicant, it therefore decided to dismiss it and to only base itself on the applicant’s birth certificate to establish the applicant’s minority.

According to the judge, administrative detention is only justifiable on the condition that the applicant is at a real risk of absconding. Even though this measure cannot be explicitly found in the law of 05 May 2016, it may be deduced from Article 10 § 1 d) of that law, thus applying administrative court jurisprudence.

The judge listed the number of cases where there was a real risk of absconding on the part of the applicant, on the basis of articles 111 of the law of 2008 and 10 of the law of 2006.

On the basis of article 28 of the Dublin Regulation, the Ministry must establish in what manner the applicant is at real risk of absconding. In other words, it must establish to a higher degree than simple presumption how the applicant is likely to abscond, which the Ministry was unable to do.

 

Outcome: 

The tribunal found that the appeal was not manifestly unfounded. 

Observations/Comments: 

Even though there are cases where the risk of absconding is presumed, this does not relieve the Ministry from its obligation to establish how this risk is stronger than a mere presumption. Furthermore, with regards to the bone test, the judge may decide to discard this document if he feels that it does not determine beyond doubt the age of the applicant.

The original version of this summary was written by Passerell a.s.b.l. and the translation compelted by Jessica Pradille.