Netherlands, Council of State, 27 May 2020, no. 201906353/1/V3. ECLI:NL:RVS:2020:1281

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Headnote: 

The Dutch Council of State does not consider ‘the best interest of the child’-criteriοn automatically fulfilled, in the context of a Dublin transfer, when an unaccompanied minor can be transferred to an adult family member in another MS. In turn, it considers that the authorities have to substantially and individually investigate whether the best interest of the child is respected when transferring. 

Facts: 

The applicant submitted an asylum application on 26 April 2018 in the Netherlands, at the age of 15. She is an unaccompanied minor (Article 2(j) Dublin III).

The applicant has an adult brother who legally resides in Sweden. The Dutch authorities dismissed her application and asked the Swedish authorities to take charge of the applicant (Article 8(1) Dublin III).
 
The question is whether the State Secretary has correctly applied Article 6(3) Dublin III (best interest of the child) and Article 8(1) Dublin (examination whether reunification of unaccompanied minor with family member is in the minor’s best interest).
 
Decision & Reasoning: 

The applicant argued that her personal statement regarding the intended reunification with her brother had not sufficiently been taken into account, including the fact that she has no connection to her brother. She lives with her niece and considers her as her sister. Therefore, her development would be interrupted if she would be deported from the Netherlands.

The State Secretary, on the other hand, argued that Article 8(1) Dublin III should be interpreted as stating that, in principle, it is always in the best interest of the unaccompanied minor to be reunited with an (adult) family member. However, this presumption is, on rare occasions, rebuttable. Furthermore, he added that, on the basis of mutual trust, he can assume that the Swedish authorities have fulfilled their obligation to take the interests of minor asylum seekers into account when applying the Dublin Regulation. 
 
The Council of State highlighted Recital 13 Dublin III that refers to Article 24 of the Charter and Article 6(1)(3) and 8(1) Dublin III and underlines that the best interest of the child, when applying Dublin, must always come first. Furthermore, it underlines that Article 8 and Recital 16 Dublin III attach great importance to the possibility of family reunification, but do not justify disregarding additional arguments. Indeed, the Council  asserts that it is up to the State Secretary to gather all relevant facts and circumstances in an individual case and weigh these facts up against the presumption that the best interest of the child requires a reunification with an adult family member.
 
Contrary to the Court of the Hague, the Council of State considers that the State Secretary has not sufficiently motivated why it is in the best interest of the applicant to be reunited with her brother. 
 
Furthermore, the Council considers that the State Secretary may rely on the presumption of mutual trust. However, this does not mean that he can abstain from further investigating the applicant’s claim and leave the ‘best interest’-assessment to the Swedish authorities. Indeed, Dublin III does not impose an obligation on the country that takes charge of an applicant, to investigate the applicant’s considerations when accepting a take-charge request. Moreover, the principle of loyal cooperation, Article 4(3) TEU, requires the Dutch authorities to question the Swedish authorities on the situation of the applicant’s brother. More specifically, the Dutch authorities are required to question the Swedish authorities on the brother’s ability to take care of the applicant (Article 6(3) Dublin III).
 The Council considers the appeal to be well-founded and annuls the Secretary’s decision. Finally, it orders the State Secretary to adopt a new decision, taking into consideration the findings of the Council.  
 
Outcome: 

Appeal granted.

Other sources cited: 

Council of State, Judgments of 21 February 2019, ECLI: NL: RVS: 2019: 565, and 18 January 2012, ECLI: NL: RVS: 2012: BV1586