May a Member State transfer an unaccompanied minor who applies for asylum to another Member State? This seems to be a recurring question in EU asylum law. The Dublin III Regulation – there have already been three major revisions – provides a hierarchy of norms to establish which Member State is responsible for handling an asylum request. In this hierarchy, the existence of family ties is at the top of the pyramid. The criteria that is most applied in practice is that the Member State of first entry is responsible for the asylum request. The question is how Member States should deal with unaccompanied children, who are in a particularly vulnerable position because they are in the Member State without their parents or other family members.
In MA, the Court of Justice of the European Union decided that it would not be in the best interests of the child if he would be transferred to another Member State. Based on this ruling, the Member State in which a minor asylum seeker applies for asylum is responsible for handling the asylum request, even if that minor asylum seeker has entered the EU through another Member State or has made a request for asylum in another Member State. Only if another Member State had examined the asylum request and denied it may a minor be transferred to another Member State.
This ruling of the Court, in which it referred explicitly to the best interests of the child concept as laid down in Article 24(2) of the Charter of Fundamental Rights of the EU and Article 3(1) of the UN Convention on the Rights of the Child, was later codified – note that this was at the initiative of the European Commission – by the European Parliament and the Council in Article 8(4) of the Dublin III Regulation. All’s well that ends well?
Not quite. In the wake of the refugee crisis, the European Commission is once again proposing a recast of the Dublin Regulation. In the newly proposed Article 10(5), the Commission proposes that the country in which the unaccompanied minor first applied for asylum is responsible for handling the asylum request, unless it is demonstrated that this is not in the best interests of the minor. This means that, if this new proposal is adopted, the Member State where the minor applies for asylum for the first time will be responsible for handling the asylum request. This would go directly against the ruling in MA and its codification of Article 8(4) of the Dublin III Regulation. In a proposal in which the Commission argues that it is fully in conformity with fundamental rights and children’s rights, it is odd that the Commission takes this backward step.
Already in 2006, the Commission presented EU strategy on the rights of the child, in which it argued that “children’s rights are still far from being generally respected”. We are now ten years on and it seems that the Commission is proposing to take a step backwards in the protection of children’s rights. According to preamble 20 of the proposed Dublin IV Regulation, the objective of this move is to discourage secondary movements of unaccompanied minors. In the negotiations on the Recast of the Dublin Regulation by the European Parliament and the Council, it would be wise if the negotiators took a close look at Article 3(1) of the UN Convention on the Rights of the Child. This provision states that in all actions concerning children, the best interests of the child shall be a primary consideration. The provision explicitly mentions that it also applies to legislative bodies. Sacrificing children’s rights for the purpose of a more efficient management of EU asylum law does not seem to be in the best interests of children.