Belgium – Court rules on case of minor choosing to reside in Belgium without his family

Wednesday, March 28, 2018

The Brussels Court of First Instance has ruled on the case of a minor who applied for asylum in Belgium, after his family had fled to Germany upon receiving a decision of transfer to Portugal.
The family had applied for asylum in Belgium but their application was rejected due to Portugal being the Member State responsible for examining their application. The family fled to Germany but the minor reported back to the Belgian authorities a month later, claiming that he decided to not follow his family. He was then registered as an unaccompanied minor and a guardian was assigned to him. The minor applied for asylum but was denied registration on the basis of the previous refusal and order to leave the country. The applicant sought interim measures before the Court, requesting that the administrative authorities register his asylum application.

First, the Court clarified that it did not doubt the applicant’s status as an unaccompanied minor, despite the irregular situation he had been found in, after choosing to stay in Belgium on his own. In this vein, it noted that the best interests of the child should be of primary consideration in this case, according to Article 6 of the Dublin III Regulation. That being so, Member States should consider, inter alia, the personal views of the minor, when conducting an assessment of those interests. Accordingly, the fact that the applicant chose not to follow his family cannot impact his status as an unaccompanied minor, or restrict the rights that follow from this status.
The Belgian government argued that the applicant had failed to use the residence procedure reserved for unaccompanied minors in domestic law, according to which their guardian files the application for residence permit on the minor’s behalf. While the Court concurred with this argument, it objected to a denial of registration of an asylum application on that basis, as being contrary to Article 3 of the Regulation, regarding access to procedures. Indeed, on the basis of a previous judgment of the Constitutional Court, the Court found that the absence of use of the specific procedure for unaccompanied minors does not exclude the applicant from the protection offered by minor-related legislation. Therefore, when the Immigration Office is assessing possible solutions for the unaccompanied minor’s situation, best interest considerations would prevail, even if they entail separation from the minor’s family. The Court further referred to the CJEU’s ruling in case C-648/11, where it was found that unaccompanied children who claim asylum in a Member State cannot be removed to another State.

The Court ordered the Belgian government to register the applicant’s asylum application and imposed a penalty by day of delay.
Based on an unofficial translation by the ELENA Weekly Legal Update. Many thanks to Roel Stynen, student at Ghent University, for helping us with the summary of the decision.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.



Best interest of the child
Unaccompanied minor