Germany: Higher Administrative Court underlines that best interests of child is of primary importance in Dublin transfers

Friday, February 27, 2015

The case relates to the responsibility of processing an unaccompanied child’s asylum claim as well as the Saarland Administrative Court’s interpretation of the CJEU’s case in C-648/11 MA and Others v SSHD.

Relating to an application lodged by a an Iraqi Kurd child in Belgium and his subsequent asylum application in Germany, the Court confirms his status as an unaccompanied minor whilst referring to Article 2 (i)and (iii) of the Dublin Regulation. Referring specifically to MA and Others and the interpretation given to Article 6 of the Dublin Regulation, the Court states that the intention of the drafters is to confirm that the Member State where an asylum application is lodged, by an unaccompanied minor, is the responsible state. 

Furthermore with regards to Article 24(2) of the EU Charter of Fundamental Rights and the best interests of the child, as well as the fact that no child should be subject to a change of location when this can be avoided, the Court goes onto state that Article 25 of the Asylum Procedures Directive, relating to inadmissible applications, cannot be said to restrict the application of Article 6 (2) of Dublin and has no influence on the designation of the responsible Member State for an asylum application.

Notwithstanding that Belgium had agreed to a take back request, the Court goes onto highlight that nowhere in the Dublin Regulation does it state that the responsibility for an asylum claim is transferred to a Member State simply because of their acceptance of the take back request. According to the Court this is because acceptance of the application is not tantamount to the exercise of the sovereignty clause. Indeed, the Court underlines that the most important aspect of a claim concerning a unaccompanied asylum-seeking child is the best interests of the child as detailed in Articles 6 (2) and 15 of the Dublin Regulation as well as Article 24 (2) of the Charter. In light of the specific circumstances of the case, notably that the applicant had been in Germany for 11 months, that he had been in regular contact with his brother who resided in Germany and who had subsequently become the child’s legal guardian after the child’s asylum application, the Court surmises that Germany is the responsible Member State for his asylum application.

The ELENA Weekly Legal Update would like to thank David Watt for providing the translation for this decision.

27 February 2015
This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. 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, the IRC or its partners.



Dublin Transfer
First country of asylum
Personal circumstances of applicant
Unaccompanied minor