Unaccompanied minor asylum-seekers: a step in the right direction?

Steve Peers

The EU’s Dublin system on the allocation of responsibility for asylum-seekers, which sets out rules determining which single Member State has responsibility for considering an asylum-seeker’s application, has long been decried as unworkable and an infringement of human rights. These broader arguments will be addressed in a future post on this blog, but for the moment it’s a good time to have a look at yesterday’s proposal from the Commission to ameliorate the Dublin system’s effects a little.

The proposal only covers applications by unaccompanied minors, who make up a small proportion of the total number of asylum-seekers. Nevertheless, they constitute a particularly vulnerable group. Currently, the Dublin III Regulation states that the Member State responsible for an unaccompanied minor asylum-seeker is the Member State where a family member or sibling of the minor is legally present, if that is in the best interests of the child. A ‘family member’ is defined as a spouse, parent or guardian (if the minor is unmarried), or child of the asylum-seeker, if the family already existed in the country of origin. If the minor is married but his or her spouse is not in the EU, then the Member State where his or parents are legally present is responsible.

If there are no such persons on the territory of a Member State, then the Member State where a ‘relative’ of the unaccompanied minor is legally present is responsible, if that relative can take care of him or her.  A ‘relative’ is defined as an aunt, uncle or grandparent.

If there are family members, siblings or relatives in multiple Member States, then the responsible Member State is decided on the basis of the best interests of the child.

Finally, if no such persons can be found, the ‘default’ rule is that the Member State responsible is the State where the unaccompanied minor has applied for asylum, if that is in his or her best interests. But the legislation does not expressly address how this rule applies if the minor applies for asylum in more than one Member State.

When the Dublin III Regulation was negotiated in 2012, these provisions were hotly disputed between the European Parliament and the Council. The two institutions finally agreed to leave the default rule untouched, since there was a pending case on the interpretation of that rule before the CJEU. However, they adopted a joint declaration calling on the Commission to consider making a proposal to amend the legislation as regards that issue once the Court had delivered its ruling.

The Court gave its ruling in that case (MA) in June 2013, and the Commission has now presented its proposal. According to the Court, where an unaccompanied minor has already made an application for asylum in one Member State, and then proceeds to make an application in another one, the default rule should be interpreted to mean that the Member State where the most recent application was made is responsible for the application.

In the Court’s view, this interpretation was necessary first of all for literal reasons, as the legislation does not refer to the first Member State where the application was made. Secondly, unaccompanied minors were vulnerable persons, so the procedure to apply the Dublin rules should be as short as possible. Finally, this interpretation was most consistent with the ‘best interest of the child’, as required by Article 24 of the EU Charter of Fundamental Rights.

Yesterday’s proposal would first of all entrench the Court’s interpretation as an express rule in the Dublin Regulation, covering all cases where the asylum-seeker had applied in multiple Member States. This is the interpretation that the EP favoured, and had tried to fight for as an express rule back in 2012.

It would also set out a new rule which would apply when the unaccompanied minor has made an asylum application in one Member State, and is present in a second Member State, but has not made an application in the second Member State.  In that case, the second Member State should ‘inform’ the child of the possibility of applying for asylum there, and give him or her an ‘effective opportunity’ to apply.

If the minor takes up the opportunity to apply for asylum in the second Member State, that Member State becomes responsible for the application. If he or she does not apply, then the Member State where he or she has most recently applied is responsible.

The new proposal also specifies that the Member States concerned shall cooperate to establish what the best interests of the child are. Finally, it sets out an express rule on Member States informing each other of their decisions; the CJEU had already established such an obligation in the MA judgment.

Comments

In principle this proposal is very welcome, given that it exempts unaccompanied minors from the full rigour of the Dublin rules. While this might reduce the pressure to reform those rules, there is little prospect of a fundamental change in those rules (at least at the EU legislature's behest; the courts may be a different matter). So at least one category of vulnerable persons can escape from them. 

More particularly, the proposal both confirms the ‘applicant’s choice’ rule for unaccompanied minors without family members first established by last year’s judgment, and also extends that rule to more situations. However, there are certain limits on the proposal, and flaws which could be improved.

First of all, it should be noted that the proposal does not cover the position of those whose application for asylum has already been rejected in another Member State. But the Court of Justice referred to that issue in its MA judgment, noting that in such cases the second Member State has the option to treat the application as inadmissible in accordance with the EU’s asylum procedures rules. Presumably that rule would continue to apply here.

On this point, however, in principle there should not be many fast-track refusals of applications by unaccompanied minors, given the convoluted exceptions from some of the fast-track rules set out in the second-phase Directive on asylum procedures.

Secondly, the new amendment would not clarify what is meant by the obligation to ‘inform’ the child about applying for asylum and give him or her an ‘effective opportunity’ to apply for asylum. Although there is a rule in the Regulation already spelling out an obligation to inform asylum-seekers about Dublin rules, it only applies once the person concerned has applied for asylum. So it doesn’t cover the position of those who haven’t applied yet. There should be express rules on this issue, in order to ensure that the child is made fully aware of the choice of making a fresh application.

As for the effective opportunity to apply for asylum, there is a (rather vague) rule on this issue in the second-phase Directive on asylum procedures. But it isn’t clear if the proposed new rules in the Dublin Regulation would confer less, more or the same degree of protection than the rules in the Directive.

Thirdly, the prospect of Member States deciding between themselves on what is in the best interests of the child is problematic. Surely, in accordance with the EU Charter, the child has a right to express a view on this issue, especially since EU asylum law guarantees him or her the right to a representative for this very purpose? So the legislation should guarantee that any decision which Member States take which is purportedly in the best interests of the child should be open to challenge, following a prior right to a hearing and the disclosure of relevant information on this subject.

Next, the proposal may mean that more Member States in practice embark on the controversial practice of trying to determine the age of teenagers who claim to be 'minors' (the EU legislation defines this as being under 18). The asylum procedures Directive has rules on this issue, but there are no rules on what happens if the person turns 18 during the procedure.  

Finally, it must be noted that the rules will only be relevant for those minors who have the effective possibility of moving between Member States. They will need some knowledge of which Member States they might wish to apply to, and how to get there, as well as the money to arrange for their travel. Furthermore, they will obviously not be able to move to another Member State in order to apply there if they are in detention. On this point, it should be noted that the revised reception conditions Directive provides that unaccompanied minors can only be detained in ‘exceptional circumstances’.

Given the freedom of unaccompanied minors to make applications in another Member State, it cannot be argued that this possibility justifies their detention. In fact, the grounds for detention in the reception conditions Directive do not provide for such a case. Similarly, while the Dublin rules do allow detention if there is a ‘significant risk of absconding’, it is difficult to see how that ground for detention can apply to unaccompanied minors in light of these rules.  

Barnard & Peers: chapter 9, chapter 26