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Children arriving at the external borders of the European Union unaccompanied face significant risks of systematic violations of their rights. In particular the child’s right to have his best interests taken as a primary consideration in all decisions concerning him which is laid down in Article 3(1) of the Convention on the Rights of the Child. The Dublin system normally places responsibility for the asylum claim on the Member State of first application. However, in 2013, in the case of MA and others v. Secretary of State, the European Court of Justice ruled that this general rule does not apply when it concerns an unaccompanied minor asylum seeker who has no family members residing within the Union and has lodged more than one claim for international protection in different Member States. Considering the vulnerable position of such children, their procedure should not be prolonged more than strictly necessary which means that they should not be subject to a Dublin transfer to another Member State. Since the best interests of a child must be a primary consideration in all decisions adopted by Member States, Article 6(2) should be interpreted as designating the responsible Member State in which the minor is present after having lodged an asylum application. Transferring the minor to the Member State of first application would unnecessarily prolong the asylum application, which is not in his best interests. As the minor’s cooperation is necessary, the Member State where the minor is present is in most cases best placed to ascertain his best interests. It is inappropriate to force unaccompanied children to engage in travel that could otherwise have been avoided (see also the Opinion of A-G Cruz Villalón).
This blog discusses the proposal for the Dublin IV Regulation as it contradicts the Court’s ruling in MA. Other aspects of this proposal raise concerns too in the context of protecting unaccompanied children, for example the application of the concept of a safe third country of origin when examining the admissibility of a minor’s application (see Amnesty International Position Paper). This discussion however focusses on the allocation of responsibility for asylum applications of unaccompanied minor asylum seekers.
A legislative response
In order to adjust the Dublin III Regulation in accordance with the decision of the Court in the MA case, the Commission introduced in 2014 a proposal to revise Article 8(4) of the Dublin Regulation. A new paragraph 4(a) would render the Member State in which a minor asylum seeker is present and has lodged an application for international protection responsible, provided that this is in his or her best interests. Even though not fully implementing the Court’s ruling in MA (see S Peers 2014), this precedent would ensure that the determination of the State responsible is not unnecessarily prolonged and that the minor has prompt access to the procedures. In the end, the proposal was not adopted. While it is unclear why the negotiations stranded, it is known that Article 8(4) of the Dublin III Regulation was a compromise between the European co-legislators. The Parliament supported the Commission position, whilst the Council was of the opinion that a minor should be sent back to the Member State of first application. In the Council, there was broad support for allowing unaccompanied minor applicants to be transferred to the Member State of first application, provided that this is could be considered to be in his best interests; for example if it would result in earlier certainty about his or her right to international protection. In its more recent approach for the Dublin IV proposal, the Commission followed the Council’s position.
Proposal for the Dublin IV Regulation
Although the drafters of the proposal claim to strengthen the rights of unaccompanied minors by better defining the principle of best interests of the child, Dublin IV in fact violates this principle as the responsibility criteria remain focussed on the first application. The proposal holds that the Member State responsible shall be that where the unaccompanied minor first lodged an application for international protection, unless it is demonstrated that this is not in the best interests of the minor. Not only does this disregard the interpretation of MA that the Member State where the minor is present should be responsible, it also ignores the precedent that as a rule, unaccompanied minors should not be transferred to another Member State following from that case. Instead of assuming that transferring the unaccompanied minor to the Member State of first application is against his best interests, the minor will instead be transferred unless he shows that this is not in his best interests. The Commission reverses the presumption that the Court of Justice has given and with that it places a disproportionate burden on the child to show that a transfer is not in his best interests (see also ECRE comments on the proposal). Moreover, taking the transfer as a starting point prolongs the minor’s asylum process, which was explicitly held to be contrary to the best interests of the child in the MA case.
More importantly, Dublin VI will narrow the time limit and the scope of the possibility to appeal against a transfer decision, which will make it even harder for the unaccompanied minor to substantiate his interests (see also S Peers 2016). On top of that, only the responsible Member State is obliged to appoint a guardian, whereas the transferring state is not (Article 8(2) of the Dublin IV proposal).
Unaccompanied minors will be moved around within the territory of the European Union and beyond. In MA, the Court of Justice specifically ruled that such a transfer will prolong the minor’s asylum application, which is not in his best interests. It follows that the proposed Dublin IV Regulation violates the principle of best interests for unaccompanied minor asylum seekers as interpreted by the Court in the MA case. If adopted, this Regulation will unnecessarily prolong children’s asylum applications as a result of the systematic relocation of these particularly vulnerable individuals without providing an appropriate opportunity to appeal. The idea that in certain circumstances a Dublin transfer could actually be in the minor’s best interests since it could result in earlier certainty about the right to international protection, contradicts the Court’s ruling that a transfer is never in the best interest of the unaccompanied minor. The proposed Dublin IV Regulation therefore will be a step backwards, rather than forwards, in the protection of the best interests of unaccompanied minor asylum seekers.