by Federica VIGNALE (Free Group Trainee)
Unaccompanied minors are “third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person […][i]. In the last years Europe has been facing massive flows of this particular category of migrants; in the whole 2014, on the basis of data provided to Eurostat[ii] by the Ministries of Interior and official agencies, a total of 16,265 unaccompanied children has been registered as asylum applicants in the countries applying the EU Regulation No 604/2013[iii] – the 28 EU Member States, as well as the four third-countries participating in Schengen (Iceland, Norway, Switzerland and Denmark). These figures, however, could be not representative of the real situation because many of unaccompanied minors “do not register with the authorities either because they are unable or afraid to do so or because they have been advised by family members, peers or smugglers to keep on the move to another destination”[iv]. Furthermore, “others are not able to contact the authorities because they are being controlled by their traffickers and are destined for sexual, labour or other exploitation in Europe”[v].
Given the specific vulnerability of children and their great exposure to risks – trafficking, sexual exploitation, slavery or servitude – stronger efforts shall be made to assure adequate protection of unaccompanied minors, especially in the early stages of the asylum procedure. In this respect, UNHCR highlighted that the serious problems encountered in the past were attributable to transfers between Member States: children became homeless or destitute because of the lack of accommodations following transfers, accommodation of children in facilities for adults or in detention due to the lack of mutual recognition of age assessment outcomes, delays in accessing the asylum procedure following the delays in the appointment of a guardian in the receiving MS[vi]. These transfers are linked to the determination of the Member State responsible for examining the application for international protection. In the case of unaccompanied minors, such rule is contained in article 8(4)[vii] of Dublin III Regulation – mentioned before – which provides that “[i]n the absence of a family member, a sibling or a relative as referred to in paragraphs 1 and 2, the Member State responsible shall be that where the unaccompanied minor has lodged his or her application for international protection, provided that it is in the best interest of the minor“. This disposition has, however, some gaps and ambiguities because there is no legal certainty in respect of responsibility for examining an unaccompanied minor´s application, and currently it is object of an amending proposal that could lead to meet the need of fewer transfers.
When, in June 2013, Dublin III Regulation was adopted, there was already at European level the awareness of the ambiguity of the disposition related to minors. The co-legislators, however, expressed in that occasion their intention to clarify that ambiguity once the CJEU had ruled on case C-648/11[viii], which concerned the interpretation of Article 6(2) of Regulation 343/2003[ix] – Dublin II – that corresponds to the current article 8(4) of Dublin III. On 6 June 2013 the Court of Justice ruled that:
“The second paragraph of Article 6 of Council Regulation (EC) N° 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national must be interpreted as meaning that, in circumstances such as those of the main proceedings, 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”.”
Therefore and in compliance with the Declaration of the European Parliament and of the Council attached to the Regulation[x], on the 26th June 2014 the European Commission presented an amending proposal[xi] “aimed at addressing the current ambiguity of the provision on unaccompanied minors who have no family, siblings or relatives on the territory of the Member States, by providing legal certainty in respect of responsibility for examining the application for international protection in such cases”.
The Commission proposal
The amending proposal of the European Commission aims to replace Article 8(4) with four subparagraphs, outlining more scenarios than those covered by the text currently in force.
Paragraph 4a reflects the above mentioned CJEU judgment and therefore it covers the case of multiple asylum applications: the Member State responsible shall be the one where the unaccompanied minor has lodged an application for international protection and is present, provided that this is in the best interests of the minor.
According to paragraph 4b, in the case of a minor who has lodged an application in a Member State and is present in the territory of another Member State – without requesting international protection – this latter shall inform the unaccompanied minor of the right to make an application and give him or her an effective opportunity to lodge an application in that Member State. The minor has therefore two possibilities:
- apply for international protection in that Member State, which become responsible for examining that application, provided this is in the best interest of the minor (in such case reference must be made to paragraph 4a)
- not to lodge a new application in that Member State, so the State responsible will be the MS where the unaccompanied minor has lodged his or her most recent application, unless this is not in the best interests of the minor.
Paragraph 4c underline the need of cooperation between the requested and the requesting Member States in the case of transfers, with the aim of guarantee the best interests of the minor and also to avoid conflicts of interest.
Paragraph 4d, lastly, contains an obligation – on the Member State responsible ex paragraph 4a – to provide information to:
- the Member State previously responsible;
- the Member State conducting a procedure for determining the Member State responsible;
- the Member State which has been requested to take charge of the unaccompanied minor;
- the Member State which has been requested to take back the unaccompanied minor[xii].
On February 2015 the UN High Commissioner for Refugees published its comments[xiii] on the amending proposal, which highly welcomes because it is not only in line with the judgment of the CJEU but it “is broader so that other scenarios […] are also clarified” and because of the primary role accorded to the best interests of the minor.
More specifically, UNHCR particularly appreciated the changes made by paragraph 4a for three sets of reasons:
- Transfers between Member States will be significantly reduced and limited to cases in which they are in the best interests of the child. This is possible thanks to the clarity and predictability introduced by the proposal –“not only for the unaccompanied child but also for the concerned Member State(s) on which Member State is responsible for examining the application for international protection”;
- The stage of the procedure is not the determining factor. UNHCR believes that “distinguishing between stages of the procedure may be at variance with the best interests of the child. […] [It] is thus of the opinion that the stage where the procedure was left at in the Member State where the child first lodged an application should not form the paramount criterion for deciding the Member State responsible once a child moves to another Member State and lodges an application there”;
- A multidisciplinary age assessment procedure could avoid the risks that a child falsely claims to be under the age of 18
As regards paragraph 4b, the UNHCR welcomes the explicit obligation to provide information to the child because this is in his or her best interest[xiv], while the provision contained in the third part of this sub-paragraph ensure that the minor “is not left without protection or in a legal limbo”.
The UN High Commissioner for Refugees welcomes the obligation of cooperation between Member States in assessing the best interest of the child and relevant criteria (paragraph 4c). It also underlines that:
- Uniform conditions for the consultation and the timely exchange of information could be assured by implementing acts, as required by Article 8(6) of Dublin III[xv].
- “[A] best interests assessment (BIA) should always precede the decision on which Member State is responsible for examining the asylum application. Such BIAs should, at a minimum, consider the factors outlined in Article 6(3) of the Dublin III Regulation, in particular, the child’s well-being and social development, safety and security considerations, especially where there is a risk of the child being a victim of human trafficking; and the views of the child, in accordance with his or her age and maturity”.
Lastly UNHCR supports the proposed paragraph 4d because “it contributes to the clarity introduced by the proposed Article 8(4)(a) and prevents abuse of the system, where the child moves on to another Member State for no other reason than to prolong his or her stay on EU territory”.
The Proposal of the European Commission to amend Dublin III Regulation was analysed also by the Meijers Committee[xvi] that, in December 2014, published its note[xvii] not only on the amending proposal but also on the Council Presidency compromise text.
First of all, the Committee particularly welcomes the fact that the Commission proposal is conform with the Case C-648/11 and it refutes the criticisms according to which there was no need of such implementation. Those criticisms emphasise that the case concerned Article 6 of the old Dublin II Regulation but the Committee argued that “[t]he Court took into account the objectives of Article 6 (i.e. to make separate provisions for unaccompanied minors) and the Dublin II regulation as a whole (i.e. to guarantee effective access to an assessment of the applicant’s refugee status). The Court held that ‘[s]ince unaccompanied minors form a category of particularly vulnerable persons, it is important not to prolong more than is strictly necessary the procedure for determining the Member State responsible, which means that, as a rule, unaccompanied minors should not be transferred to another Member State’. The protection of (unaccompanied) minors and effective access to procedures for granting international protection are also important objectives of the Dublin III regulation”. Furthermore, the need of this implementation is justified also in the light of Article 24 paragraph 2 of the Charter of Fundamental Rights of the European Union, which rules that in all action relating to children, […] the child’s best interests must be a primary consideration. This implies that Article 8(4) currently in force should be conform also to Article 24(2) of the Charter and therefore it should be amended in order to prevent minors’ transfers.
The Meijers Committee is of the opinion that the original proposal is conform to the above-mentioned principles (especially as regards the paragraph 4a, which reflects the judgment of the Court), differently from the Presidency compromise text of 20 November 2014[xviii], which paragraphs 4b and c should be deleted in their entirety. Paragraph 4b, in fact, rules that by way of derogation from paragraph 4a, the Member State responsible shall be the one that has already taken a decision at first instance regarding the substance of the application for international protection[…]. This seems firstly to go against the judgment of the Court, which in paragraph 53 rules that the expression “the Member State… where the minor has lodged his or her application for asylum”, cannot be construed as meaning “the first Member State where the minor has lodged his or her application for asylum”, but more important the stage of the procedure should not form a determining factor. In this regard, in fact, the Meijers Committee underlined that “[t]he question whether [a minor] still have an asylum procedure pending or completed in another Member State was irrelevant to the Court”. Furthermore, paragraph 4c of the compromise text provides that [W]here a Member State with which an application for international protection has been lodged by an unaccompanied minor and where the minor is present considers that the Member State responsible is, in application of paragraph 4b of this Article, the Member State which has already taken a decision at first instance regarding the substance of the application for international protection, the period for submitting a take back request shall not exceed one month from the lodging of the application for international protection […]. However, paragraphs 55 and 61 of the judgment underline the importance to use transfers only when they are strictly necessary, to not prolong the procedure for determining the MS responsible and to guarantee prompt access to the Dublin procedure. Also paragraph 4c is therefore not in line with the requirement following from the Court judgment – as well as with Article 24(2) of the Charter – even because, as highlighted by the Meijers Committee, “it may still take several months (six weeks for the decision in first instance and the time necessary to lodge an effective remedy and obtain a Court decision) before the unaccompanied minor will be transferred”.
As regards unaccompanied minors who have not claimed asylum, both the Commission proposal and the Presidency compromise text (respectively Articles 84b and 84d) provide in this case, and unless it is not in minor’s best interest, the Member State responsible shall be the one where the unaccompanied minor has lodged his or her most recent application. The Meijers Committee is of the opinion that even when there is not a request of asylum, the rule ex Article 24(2) of the Charter should apply. The sentence “unless [the transfer] is not in the best interest of the minor”, however, could be interpreted – according to the Committee – as meaning to place on the minor the burden to prove that it is not in his or her interest. It should instead be the Member State to perform, before a transfer decision – a full best-interest determination. Furthermore, another problem at which could lead Article 8(4b) of the Proposal is that the minor may be encouraged to lodge an application only to avoid the transfer to another MS, even if the application has no chance of success and if it is not in her or his interest. According to the Meijers Committee, in the light of the above, “when the unaccompanied minor makes an informed decision not to apply for asylum, the Member State in which he [or she] is present shall perform a best interest determination before taking a decision on his transfer to another Member State. The duty to perform such a best interest determination should be included in Article 8(4b) of the proposal. The rule that the minor should be transferred to the Member State where he [or she] has lodged his [or her] most recent asylum claim should be deleted”.
Finally, the Meijers Committee highlighted another anomaly in Dublin III Regulation as regards the legal protection in the decisions not to transfer. Article 27 rules, in fact, that [t]he applicant or another person as referred to in Article 18(1)(c) or (d) shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal. According to the Committee, this disposition covers only the case of transfer decisions, while “decisions not to transfer an applicant cannot be challenged before a court pursuant to the Regulation” and it emerges that it is up to the Member States to solve this matter between themselves. However, this would go against Article 47 of the Charter, under which everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy […]. As the current Article 27(1) of the Regulation constitutes a barrier to minors’ full enjoyment of the right to an effective remedy, the Meijers Committee suggests to replace the last two sentences – against a transfer decision, before a court or tribunal – as follows: “before a court or tribunal, against a transfer decision, a failure to submit a take-charge or take-back request as referred to in Articles 21,23 and 24, or a decision on the request to take charge or to take back as referred to in Articles 22 and 25]”.
The European Parliament position and the current situation
At the beginning of February the LIBE Committee, responsible for this matter, presented its amendments[xix]. As the Rapporteur Cecilia Wikström underlined in the explanatory statement[xx] attached to the draft report, the European Parliament highly welcomes the Commission Proposal. However, several Recitals have been clarified and some amendments have been proposed but without questioning the substance of the Proposal. These amendments seem indeed to meet the observations raised by the Meijers Committee as concern, for example, the problem of the burden of the proof concerning the Best Interest Assessment and that one related to the lack of effective remedies in the case of decisions not to transfer. At present a decision of the Committee is being awaited and it will have to find the support of the Council. After the judgment of the Court, some States have blocked minors’ transfers while others has only transferred minors with a decision in first instance pending. However, it is desirable that such agreement is reached in a short time, in order to put an end to the current legal vacuum and to guarantee the fundamental rights of the minors.
[iii] Regulation (EU) N° 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast).
[iv] See page 7 of the joint UNHCR UNICEF publication Safe and sound. What States can do to ensure respect for the best interests of unaccompanied and separated children in Europe.
[vi] See page 4 of the UNHCR report on Protecting the best interest of the child in Dublin Procedures
[vii] [C]oncerning the criteria for determining the Member State responsible for examining an application for international protection in the case of unaccompanied minors.
[viii] Case C-648/11 MA and Others vs. Secretary of State for the Home department
[ix] Council regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.
[x] “The Council and the European Parliament invite the Commission to consider, without prejudice to its right of initiative, a revision of Article 8(4) of the Recast of the Dublin Regulation once the Court of Justice rules on case C-648/11 […]. The European Parliament and the Council will then both exercise their legislative competences, taking into account the best interest of the child”.
[xi] Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) N° 604/2013.
[xii] See pp. 7 and 8 of the European Commission Proposal.
[xiii] UNHCR, Protecting the best interests of the child in Dublin Procedures.
[xiv] Read the UNHCR Report Safe and Sound: what States can do to ensure respect for the best interests of unaccompanied and separated children in Europe
[xv] “The Commission shall, by means of implementing acts, establish uniform conditions for the consultation and the exchange of information between Member States. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44(2).”
[xvi] Standing Committee of Experts on International Immigration, Refugee and Criminal Law. “The Meijers Committee is an independent group of legal scholars, judges and lawyers that advises on European and International Migration, Refugee, Criminal, Privacy, Anti-discrimination and Institutional Law. The Committee aims to promote the protection of fundamental rights, access to judicial remedies and democratic decision-making in EU legislation”.
[xvii] Note on the proposal of the European Commission of 26 June 2014 to amend Regulation (EU) 604/2013 (the Dublin III Regulation).
[xviii] Compromise text of the Council of the European Union
[xix] See the Amendments tabled in committee.
[xx] Read the Explanatory statement at page 10 of the Committee draft report