Best interests of the child and the Dublin System (C-648/11)

On 6 June 2013, the Court issued an important ruling in the case of MA & Others v UK (C-648/11) on the position of unaccompanied children subject to the Dublin II Regulation. The case concerned three children who claimed asylum in the UK after having previously lodged asylum claims in the Netherlands and Italy. Due to ambiguity as to its meaning, the UK Court of Appeal submitted a preliminary reference question on Article 6 of the Regulation, the rule applicable to determining the Member State which must examine the asylum application lodged by a child. In essence, the Court was asked to identify which State was responsible for a child’s asylum claim in situations where the child in question has lodged claims in more than one Member State and has no family members present in the territories of Member States.[1]

The Court confirmed the Advocate General’s Opinion in holding that the child’s best interest must be a primary consideration[PB1]  in all decisions under the Dublin II Regulation in accordance with Article 24 of the Charter of Fundamental Rights. Unaccompanied children form a category of particularly vulnerable persons and prompt access to an asylum procedure and the prevention of unnecessary delays in the Dublin procedure are central to their best interests (Para. 61). With that in mind, the Court concluded that:

Where an unaccompanied minor with no member of his family legally present in the territory of a Member State has lodged asylum applications in more than one Member State, the Member State in which that minor is present after having lodged an asylum application there is to be designated the Member State responsible.

This ruling means that unaccompanied children who claim asylum in a Member State cannot be removed to another State pursuant to the Dublin Regulation. In effect, Dublin is not applicable for such children. This ruling also marks the first time that the Court has interpreted secondary EU law in light of Article 24 of the Charter since it became a legally binding instrument under the Lisbon Treaty. The Court brings much needed clarity to State practice which previously lacked uniformity in the interpretation of Article 6 and left children in a precarious situation depending on where they claimed asylum.[2] As to the submission made by some Member States that this may result in ‘forum shopping’ by children, Advocate General Cruz Villalon stated the potential risk of that was sufficiently justified by the fact that the best interest of the child was a primary consideration. The Court held that if an unaccompanied child’s asylum claim was substantively rejected in one Member State then he or she could not subsequently compel another Member State to examine their asylum claim again.[3] What is clear is that the Dublin II Regulation can only be applied in a manner which safeguards the rights of the child under primary EU law. As per the Court’s ruling in C-277/11 M.M. v Minister for Justice, Equality and Law Reform and the UN Convention on the Rights of the Child, this will also require ensuring that the child’s right to be heard is respected in accordance with their age and maturity and the right to good administration under Article 41 of the Charter.

As this ruling was pending during the negotiations for a recast of the Dublin II Regulation, the final recast regulation includes a statement inviting the Commission to revise the equivalent Article 8(4) for unaccompanied children upon the publication of the Court’s decision. Irrespective of this potential future development, States remain bound by this judgment of the Court.

[1] Regulation 343/2003 is binding on all EU Member States as well as Iceland, Switzerland, Norway and Liechtenstein.

[2] For further information on the application of the Dublin II Regulation with respect to unaccompanied children see the Dublin Transnational Network Project comparative report The Dublin II Regulation Lives on Hold, February 2013.

[3] In doing so, the Court made a link to inadmissible applications under Article 25(2)(f) the Asylum Procedures Directive.