18 Unaccompanied minors seeking asylum
| Committee's assessment
| Politically important |
| Committee's decision | Not cleared from scrutiny; further information requested
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| Document details | Draft Regulation amending Regulation (EU) No. 604/2013 as regards determining the Member State responsible for examining the application for international protection of unaccompanied minors with no family member, sibling or relative legally present in a Member State (36231), 11864/14, COM(14) 382
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| Legal base | Article 78(2)(e) TFEU, co-decision; QMV
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| Department | Home Office
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Summary and Committee's conclusions
18.1 The "Dublin III Regulation", adopted
in June 2013, updates the system applicable within the EU for
determining which Member State is responsible for examining an
application for international protection made by a third country
national or stateless person.[80]
It is intended to deter the submission of multiple asylum applications
in different Member States, and the successive transfer of asylum
applicants between Member States, by establishing a clear set
of criteria for identifying a single Member State responsible
for the asylum claim.
18.2 The Dublin III Regulation includes specific
guarantees for minors which require Member States to have "primary
consideration" for the best interests of the child. In most
cases, unaccompanied minors will be reunited with family members,
siblings or relatives who are legally present in a Member State
and their claim for asylum processed in that State, even if the
minor applied for asylum in a different Member State. The rules
applicable to unaccompanied minors who do not have any family
members, siblings or relatives legally present within the EU are
less clear-cut. The purpose of the draft Regulation is to remove
the current ambiguity by amending the provisions on unaccompanied
minors in the Dublin III Regulation in light of a recent Court
of Justice ruling.
18.3 We note that the Government is already applying
the provisions of the Dublin III Regulation on unaccompanied minors
in a manner consistent with the recent ruling of the Court of
Justice. The Government raises two concerns with regard to the
draft Regulation.
18.4 First, it says that the draft Regulation
goes beyond the terms of the judgment by requiring a Member State
in which an unaccompanied minor is present to inform the child
that he or she has a right to apply for asylum in that State,
even though an application has been submitted previously in another
Member State. The Government suggests that this may be difficult
to implement in practice and would impose an additional administrative
burden on Member States if they were expected to prompt asylum
claims from all unaccompanied migrant children. We ask the Government
to set out more fully the practical difficulties it envisages,
given that we assume it would be necessary, in all such cases,
to clarify the immigration status of unaccompanied third country
minors and that their asylum status could, in most cases, be checked
against the Eurodac database, provided the minor is aged 14 or
above. We also ask the Government for its assessment of the number
of unaccompanied minors in the UK to whom the obligation to facilitate
an asylum claim might apply.
18.5 Second, the Government considers that the
draft Regulation does not fully reflect the Court's ruling in
cases where an asylum claim has previously been examined and rejected
in another Member State. We ask the Government whether it considers
that this aspect of the Court's ruling should be expressly included
in the draft Regulation.
18.6 We note that the UK participates fully in
the Dublin system for determining which Member State is responsible
for examining an asylum application made by a third country or
stateless national and that this will be an important factor in
deciding whether or not to opt into the draft amending Regulation.
We are not minded to recommend an opt-in debate in this case,
as the eight-week period for Parliamentary scrutiny of the Government's
opt-in decision will expire on 12 September. In addition to the
information already requested, we ask the Government to provide
a full explanation of the reasons for its opt-in decision at the
earliest opportunity. Meanwhile, the draft Regulation remains
under scrutiny.
Full details of the document:
Draft Regulation amending Regulation (EU) No. 604/2013 as regards
determining the Member State responsible for examining the application
for international protection of unaccompanied minors with no family
member, sibling or relative legally present in a Member State:
(36231), 11864/14, COM(14) 382.
Background
18.7 Article 8(4) of the Dublin III Regulation concerns
unaccompanied minors who have applied for asylum but do not have
any family members, siblings or relatives in the EU. It specifies
that the Member State responsible for examining an asylum application
shall be the one in which the minor "lodged his or her application
for international protection, provided that it is in the best
interests of the minor". This provision largely replicates
Article 6 of the earlier Dublin II Regulation[81]
and is of little assistance in determining the responsible Member
State in cases where an unaccompanied minor has sought asylum
in more than one Member State.
18.8 In June 2013, the Court of Justice issued its
judgment in a case concerning three unaccompanied minors who had
sought asylum in the UK, having previously applied for asylum
in another Member State (two in Italy and one in the Netherlands).[82]
None had family members legally present in the EU. The case hinged
on the interpretation of Article 6 of the Dublin II Regulation
but is also relevant to Article 8(4) of the Dublin III Regulation.
The Home Secretary initially determined that each of the unaccompanied
minors should be transferred to the Member State in which they
had first sought asylum. Italy and the Netherlands accepted responsibility,
but the legality of the transfers was challenged in the UK courts
and a reference made to the Court of Justice for a preliminary
ruling.
18.9 The Court, relying on provisions contained in
the draft Regulation referring to the best interests of the unaccompanied
minor as well as Article 24(2) of the EU Charter of Fundamental
Rights concerning the rights of the child,[83]
concluded that the Member State in which an unaccompanied minor
is present is responsible for examining an asylum application
in the following circumstances:
· the unaccompanied minor has applied for
asylum in more than one Member State, including the Member State
in which she or he is present; and
· the unaccompanied minor has no family
members legally present in the territory of a Member State.
18.10 In reaching its conclusion, the Court took
into account the omission of any reference in Article 6 to the
"first Member State" in which an asylum application
was made, the particular vulnerability of unaccompanied minors,
and the importance of ensuring a swift procedure for determining
the responsible Member State.
The draft Regulation
18.11 The draft Regulation proposes amendments to
Article 8(4) of the Dublin III Regulation. Its purpose, according
to the Commission, is to address "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".[84]
18.12 The first amendment — Article 8(4a) —
reflects the Court's recent judgment on the corresponding provision
of the Dublin II Regulation. It seeks to ensure that the Member
State in which an unaccompanied minor is present will examine
an application for asylum, even if an earlier application was
made in another Member State, in cases where the minor has no
other family members or relatives legally present elsewhere in
the EU.
18.13 The second amendment — Article 8(4b)
— seeks to address the situation in which an unaccompanied
minor has made a prior application for asylum in one Member State,
is present in the territory of another Member State but has not
made an application for asylum in that State, and has no family
members or relatives legally present elsewhere in the EU. In these
circumstances, the unaccompanied minor must be informed of his
or her right to apply for asylum in the Member State in which
he or she is present and given an effective opportunity to do
so. In the event that an application is made, that Member State
will be responsible for examining the asylum claim. If no application
is made, the responsible Member State will be the one in which
the most recent application was made.
18.14 In both cases, Articles 8(4a) and 8(4b) require
the determination of the responsible Member State to be based
on the best interests of the minor.
18.15 The Commission acknowledges that the Court's
judgment does not extend to the circumstances envisaged in Article
8(4b) but suggests that an additional provision is necessary to
avoid "loopholes in the responsibility criteria" and
to ensure legal certainty.[85]
18.16 The third amendment — Article 8(4c) —
flows from the preceding amendment. It requires the Member State
in which the unaccompanied minor is present and the Member State
to which he or she is to be returned to cooperate in assessing
the best interests of the minor.
18.17 The fourth and final amendment — Article
8(4d) — seeks to ensure that a Member State assuming responsibility
for the asylum application of an unaccompanied minor under Article
8(4a) informs other Member States that may be affected.
18.18 The draft Regulation is based on Article 78(2)(e)
of the Treaty on the Functioning of the European Union (TFEU)
which provides for the adoption of EU measures establishing the
criteria and mechanisms for determining which Member State is
responsible for examining an application for international protection.
It is subject to the UK's Title V (justice and home affairs) opt-in.
The Government's Explanatory Memorandum of 30
July 2014
18.19 The Minister of State at the Home Office (Mike
Penning) explains that during negotiations on the Dublin III Regulation,
the European Parliament and Council agreed to make no substantive
changes to the provisions of the Dublin II Regulation concerning
unaccompanied minors who have made an application for international
protection and have no family members present in the EU, pending
the outcome of the case being considered by the Court of Justice.
He notes that, in its judgment, the Court suggested that, as a
general rule, transfers of unaccompanied asylum-seeking minors
to another EU Member State were unlikely to be in the best interests
of the child. The draft Regulation proposed by the Commission
therefore seeks to limit such transfers in order to protect the
fundamental rights of the children concerned.
18.20 The Minister provides further analysis of the
Court's ruling as well as the position taken by the Council during
the Dublin III negotiations:
"In the case of MA and others vs. the
Secretary of State for Home Department (C-648/11) the Court
of Justice of the European Union ruled in favour of the
applicants: the provision in the Dublin II Regulation concerning
unaccompanied asylum seeking children (UASCs) should be interpreted
such that in the absence of family members or relatives the Member
State responsible for examining an application from a UASC is
the State in which the most recent application for asylum
is lodged, provided that this is in the best interests of the
child. During the Dublin III negotiations the Council's view had
been the opposite: the State where the first application
for asylum was lodged should be responsible, reflecting "traditional"
Dublin principles designed to tackle secondary movements. The
European Parliament and the Commission favoured the contrary view,
the view endorsed by the Court. The Court acknowledged that the
wording of the provision in Article 6 of the Dublin II Regulation
itself was ambiguous. However, in interpreting the provision,
the Court was obliged to consider the overall legislative and
fundamental rights context, including the provision in Article
24(2) of the Charter of Fundamental Rights to the effect that
the child's best interests must be a primary consideration in
all actions taken in relation to him or her. As set out above,
the CJEU considered that it would, in most situations, not be
in the best interests of a child to be transferred to another
Member State in order for his or her asylum claim to be considered.
For this reason, it concluded that the provision should be interpreted
as above."[86]
18.21 The Minister notes that the draft Regulation
seeks to reflect the Court's ruling. Although the UK argued for
a contrary interpretation during the Court proceedings, the Government
respects the Court's ruling regarding the consideration of the
child's best interests, which provides: "Since 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." As the UK applies the Dublin
III Regulation in a manner consistent with the Court's ruling,
the Minister does not anticipate that the changes proposed by
the draft Regulation will have any domestic impact in the UK.
18.22 However, the Minister adds:
"We note that the proposal does not fully
reflect the terms of the ruling with regard to the situation where
an earlier application for asylum has already been considered
and a final rejection given by another Member State. We intend
to raise this omission with the Commission to better understand
its reasons for this and the extent to which it might be possible
to address this during negotiations. At first sight parts of the
proposal concerning unaccompanied minors who have not made an
application for asylum in the State in which they are present
(amendment for Article 8(4)(b)) raise questions about how to implement
this in practice and so we intend to seek clarification from the
Commission during negotiations to better understand the concept.
For example it is not immediately clear how it will be apparent
to the authorities responsible for asylum and migration in a State
in which an unaccompanied child is present, but where the child
has not made an application for asylum, that he or she
might have made an application elsewhere, without the child's
disclosure of an earlier application. We consider it would be
an additional administrative burden on Member States if the intention
is to require them to prompt asylum claims from all unaccompanied
migrant children."[87]
18.23 The Minister notes that the draft Regulation
is subject to the UK's Title V opt-in and that the Government
must notify the Council Presidency of the UK's opt-in decision
by 16 October 2014. In reaching a decision, the Government will
have particular regard to:
· "the general implications given that
the UK has opted in to all earlier proposals concerning the Dublin
system (including the related Eurodac Regulations);
· "the particular implications of being
partially, but not fully, involved with the Dublin Regulation
where this proposal seeks to amend one sub-section within a single
Article that addresses the situation of unaccompanied asylum seeking
children; and
· "the extent to which the UK will
be able to achieve any amendments we deem necessary if we do opt
in."[88]
Previous Committee Reports
None.
80 Regulation (EU) No. 604/2013, OJ No. L 180, pp 31-59,
29.06.2013. Back
81
Council Regulation (EC) No. 343/2003, OJ No. L 50, pp 1-10, 25.02.2003.
Back
82
Case C-648/11, 6 June 2013, MA and Others v. Secretary
of State for the Home Department. Back
83
Article 24(2) specifies that "in all actions relating to
children, whether taken by public authorities or private institutions,
the child's best interests must be a primary consideration".
Back
84
See p 3 of the Commission's explanatory memorandum. Back
85
See p 4 of the Commission's explanatory memorandum. Back
86
See para 12 of the Minister's Explanatory Memorandum. Back
87
See para 14 of the Minister's Explanatory Memorandum. Back
88
See para 11 of the Minister's Explanatory Memorandum. Back
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