The Netherlands: Suspension of Dublin transfer of unaccompanied child and brother to Romania

Date: 
Tuesday, August 20, 2019

On 20 August 2019, the District Court of the Hague ruled to suspend the transfer to Romania of an unaccompanied child and his adult brother under the Dublin III Regulation 604/2013 (the Dublin Regulation) until an examination of the best interests of the child is carried out.

The applicants, a minor and his adult brother from Iraq, travelled to Romania in 2018 where they were held in detention for three days. In detention, they faced abused and were deprived of basic needs, such as food and water, as well as access to a bathroom. After their release, they travelled to the Netherlands where they applied for asylum. The Netherlands subsequently sent a take back request to Romania under Article 18(1)(b) of the Dublin Regulation. The Dutch Immigration and Naturalisation Service (IND) held that the unaccompanied child could join his adult brother under Article 8 (1), as the brother would be “legally present” in Romania. The applicants appealed this transfer decision on the grounds that the adult brother was now legally present in the Netherlands and it was in the best interests of the child to stay in the State. 

The Court held that, in the present case, Article 8 (1) cannot be invoked in relation to the adult brother neither in Romania nor in the Netherlands because the definition of a family member being “legally present” in a Member State refers only to residence based on a residence permit or a visa, and not to applicants of international protection.

Instead, the Court ruled that Article 8 (4), which protects the best interests of the child, was applicable. Referencing the ruling of the CJEU in H. and R. v. the Netherlands, the Court held that while in principle the applicants cannot contest the interpretation of criteria to establish responsibility, the best interests of the child must be taken into consideration.

The Court therefore annulled the transfer decisions and ordered the Secretary of Justice to take new decisions in respect of the applicants, taking into consideration the best interests of the child as established in Articles 6(3) and 8(4) of the Dublin Regulation. It highlighted that should the Netherlands find itself responsible for the processing of the child’s application, the State must also process the application of the adult brother, as the separation of siblings is not possible.

Based on an unofficial translation by the EWLU team.

Photo: Dan Nevill, May 2008, Flickr (CC)


This item was reproduced with the permission of ECRE from the ELENA Weekly 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 pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.

 

 

Keywords: 
Dublin Transfer
Effective remedy (right to)
Request to take back