The Netherlands – District Court rules that the minor’s views were not respected in a case of Dublin transfer

Thursday, February 7, 2019

On 7 February, the District Court of The Hague published a judgment on the Dutch authorities’ failure to act in accordance with the best interests of the child and to respect the child’s views in a decision under the Dublin Regulation.

The applicant, an Eritrean national, had lodged an asylum application in the Netherlands but the Dutch authorities sent a take back request to Switzerland, as the applicant had spent 9 months there and her older sister was still living there. After the take back request was accepted, the State Secretary rejected the child’s application. On appeal, the applicant argued that it was not in her best interests to be transferred since she had never been a part of her sister’s family and she is receiving better care in the Netherlands, as she is in a foster family with another Eritrean girl.

The Court first noted that the State Secretary was bound by Article 6 (3) of the Dublin Regulation to determine the best interests of the unaccompanied minor. In particular, the Dutch authorities had to take into account, inter alia, the minor's well-being and social development and the minor's own views in accordance with her age. Since the file showed that the applicant did not have a relationship with her sister's family, the Court held that there was no possibility of family reunification. With regard to the welfare and social development of the applicant in Switzerland, the State Secretary had not explained the reasons why that would be as much guaranteed there as it was in the Netherlands. The Court also observed that it was not concretely established that, in the event of equal opportunities for social development in both States, the applicant's interest would be better served by a transfer to Switzerland.

Moreover, the Court emphasised that the applicant was 15 years old and had taken a clear standpoint on where her best interests lied. In this respect, the authorities did not clearly explain why the child’s opinion was incorrect or why it should not bear decisive weight. In the same context, the Court also found that the State Secretary had wrongly dismissed the position adopted by the Nidos guardianship foundation, which also objected to the applicant’s transfer to Switzerland. Although the authorities did provide the reasons on why the Nidos position should not be followed, they failed to substantiate their view on the basis of specific child-related expertise, in contrast with the argumentation provided by the Foundation.

The Court held that the Netherlands was responsible for the minor’s asylum application and ordered the State Secretary to decide on the case within four weeks from the publication of the judgment.

Based on an unofficial translation by the ELENA Weekly Legal Update.

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
Dublin Transfer
Procedural guarantees
Unaccompanied minor