CJEU Judgment in case C-648/11, MA, BT and DA v Secretary of State of the Home Department, 6 June 2013

Friday, October 4, 2013

(Regulation (EC) No 343/2003 - Determining the Member State responsible - Unaccompanied minor - Successive applications for asylum lodged in two Member States - Absence of a member of the family of the minor in the territory of a Member State - Second paragraph of Article 6 of Regulation No 343/2003 - Transfer of the minor to the Member State in which he lodged his first application - Compatibility - Child's best interests - Article 24(2) of the Charter)

Facts of the case


The main proceedings concern three unaccompanied minors who applied for asylum in the United Kingdom after having previously lodged asylum applications in the Netherlands and Italy. None of them had family members legally present in the territory of those states. The British authorities decided first to send them back to those countries in application of the Dublin Regulation, but later they ruled that the UK would take responsibility for their applications under the sovereignty clause. Two of them have been granted asylum in the UK and the application of the third is being examined. However, the minors did not withdraw the appeals they had lodged against the initial decision to sent them back. In the context of those proceedings, the Court of Appeal (England and Wales) referred the following question to the CJEU for a preliminary ruling:

The question referred for a preliminary ruling

In [Council Regulation (EC) No 343/2003 of 18 February 2003] establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ [2005 L 50] p. I), where an applicant for asylum who is an unaccompanied minor with no member of his or her family legally present in another Member State has lodged claims for asylum in more than one Member State, which Member State does the second paragraph of Article 6 make responsible for determining the application for asylum?

Consideration of the question referred

The referring court asks whether Article 6(2) of the Dublin Regulation must 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 state responsible for examining the claim shall be that where the minor lodged his first application, or that where the minor lodged the most recent application and where they are still present. The Court concludes that the wording of Article 6(2), which merely refers to the state "where the minor has lodged his or her application for asylum", cannot be construed as meaning "the first Member State where the minor has lodged his or her application for asylum". If the legislator had intended to mean this, they would have expressly used the words "first Member State" as in Articles 5(2) and 13 of the Regulation. The Court also takes into consideration the objective of Article 6(2), which focuses particularly on unaccompanied minors as a particularly vulnerable category, and the objective of the Dublin Regulation, which is to guarantee effective access to an assessment of the applicant's refugee status. In light of this, the Court concludes that unaccompanied minors should not, as a rule, be transferred to another Member State in order to avoid prolongation of the procedure. The Court also argues that, according to Article 24(2) of the Charter of Fundamental Rights, the best interest of the child needs to be taken into consideration in all actions relating to children. Article 6(2) shall not disregard this fundamental right: the best interest of the child needs to be a primary consideration in all decisions adopted on the basis of that article. The Court concludes that such best interest requires that the Member State responsible be that in which the minor is present after having lodged an application there, as this avoids unnecessary prolongation of procedures and ensures prompt access to asylum procedures. Finally, the Court adds that the Member State which assumes responsibility for the application on the basis of this interpretation of Article 6(2) shall inform the Member State in which the first application was lodged.

Read the full judgmenton the website of the Court of Justice of the European Union.

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Dublin Transfer
Responsibility for examining application
Best interest of the child
Unaccompanied minor