4 Unaccompanied minors seeking asylum
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; further information requested; tagged as relevant to the opt-in debate on the draft Regulation establishing a European Union agency for law enforcement training (Cepol) recommended on 3 September 2014; drawn to the attention of the Home Affairs and Justice Select Committees
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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
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| Legal base | Article 78(2)(e) TFEU, co-decision; QMV
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| Department
Document numbers
| Home Office
(36231), 11864/14, COM(14) 382
|
Summary and Committee's conclusions
4.1 The purpose of this draft Regulation is to amend
Article 8(4) of the so-called "Dublin III Regulation"
to clarify the rules determining which Member State is responsible
for examining an asylum application made by an unaccompanied minor
who has no other family members or relatives within the EU. The
UK participates fully in the Dublin III Regulation. The draft
amending Regulation is intended to bring the Dublin III rules
into line with a recent ruling of the Court of Justice in MA
and others concerning unaccompanied minors.[19]
The proposal is subject to the UK's Title V (justice and home
affairs) opt-in.
4.2 We considered the draft Regulation at our meeting
on 3 September 2014. Noting that the eight-week period for Parliamentary
scrutiny of the Government's opt-in decision would expire during
the Conference recess in September 2014, we decided not to recommend
an opt-in debate but sought a full explanation of the reasons
informing the Government's opt-in decision at the earliest opportunity.
The Government had until 16 October 2014 to notify the EU institutions
of its opt-in decision.
4.3 Turning to the substance of the draft Regulation,
we noted that the Government had identified two concerns. First,
the Minister of State at the Home Office (Mike Penning) told us
that the proposal went beyond the terms of the Court's judgment
by requiring a Member State in which an unaccompanied minor was
present to inform the child that he or she had a right to apply
for asylum in that State, even though an application had been
submitted previously in another Member State. He suggested that
this might be difficult to implement in practice and impose an
additional administrative burden on Member States if they were
expected to prompt asylum claims from all unaccompanied migrant
children. We asked the Minister to set out more fully the practical
difficulties he envisaged, given that we assumed 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
was aged 14 or above. We also asked the Minister for his assessment
of the number of unaccompanied minors in the UK to whom the obligation
to facilitate an asylum claim might apply.
4.4 Second, the Minister considered that the
draft Regulation did not fully reflect the Court's ruling in cases
where an asylum claim had previously been examined and rejected
in another Member State. We asked him whether this aspect of the
Court's ruling should be expressly included in the draft Regulation.
The Government's response is provided by the Minister for Immigration
and Security (James Brokenshire).
4.5 It is extraordinary that the Minister fails
even to mention, let alone apologise for, the more than three-month
delay in notifying Parliament of the Government's opt-in decision
when we had asked the Home Office to do so at the earliest opportunity.
His letter coincides with the publication, on 23 January 2015,
of a Written Ministerial Statement which provides the following
explanation for the Government's opt-in decision:
"The Government is fully committed to
the system created by the Dublin Regulation, which determines
which participating State is responsible for examining an application
for international protection. The UK has opted in to all earlier
proposals concerning the Dublin Regulation and the related Eurodac
Regulation. Opting in to this single issue proposal concerning
unaccompanied asylum seeking children is consistent with our strong
support for the Dublin system as a whole, which has been of great
benefit to the UK, enabling the removal of over 12,000 asylum
individuals since 2003 to other participating States (Member States
of the European Union, Norway, Iceland, Switzerland and Liechtenstein)."
4.6 We remind the Government that the publication
of a Written Ministerial Statement, particularly one concerning
a decision taken three months previously, does not substitute
for the timely provision of information requested by this Committee.
Our earlier Report, agreed on 3 September 2014, asked for a full
explanation of the reasons for the Government's opt-in decision.
The letter gives none, other than a general assertion that the
draft amending Regulation "did not contain any points of
substance with which we disagreed in principle".
4.7 The Minister will be aware that we still await
notification of the Government's opt-in decision concerning a
draft Regulation relating to the European Police College (CEPOL).
In that case, the opt-in deadline was 24 November 2014. It is
difficult to take seriously the Government's professed commitment
to "rigorous Parliamentary scrutiny of opt-in and Schengen
opt-out decisions", stronger engagement with Parliament to
"reduce the democratic deficit over EU matters", and
a significant strengthening of "Parliament's oversight of
EU justice and home affairs matters" when Government itself
is unwilling to provide the information necessary to enable Parliament
to hold it to account for decisions taken at EU level.[20]
We seek an urgent and detailed explanation of the reasons for
the delay in notifying our Committee and Parliament of the Government's
opt-in decision in relation to both draft Regulations, failing
which we shall expect the Minister to attend and explain in person.
4.8 Turning to the questions we raised in our
earlier Report, we are disappointed that the Government is unable
to provide any indication of the number of unaccompanied minors
in the UK to whom the obligation to facilitate an asylum claim
might apply under Article 8(4b) of the amended Dublin III rules,
not least to substantiate the Government's claim that the change
would create an "additional administrative burden".
We note that the "indication" given by the Commission
as to the practical application of Article 8(4b) does not appear
to be entirely consistent with the mandatory wording contained
in that provision. We ask the Minister to explain whether he
will therefore seek further amendment of the text so that both
the rights of an unaccompanied minor and the obligations of the
Member State in which he or she is present, are unambiguously
clear.
4.9 We note that the draft amending Regulation
does not address the position of unaccompanied minors whose claim
for asylum has been previously examined and rejected by another
Member State. We ask the Minister to explain the Government's
understanding of this aspect of the Court's ruling in MA and
others and to indicate whether and how he considers this should
be reflected in the draft amending Regulation.
4.10 Pending the Minister's reply, the draft Regulation
remains under scrutiny. We draw to the attention of the Home Affairs
and Justice Select Committees the observations we have made about
the Government's failure to provide timely notification to Parliament
of its opt-in decisions. We consider that these observations are
also relevant to the opt-in debate on the draft CEPOL Regulation
which we recommended on 3 September 2014 and which has yet to
be scheduled.[21]
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
4.11 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.[22]
It 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 asylum-seeking unaccompanied
minors who do not have any family members, siblings or relatives
legally present within the EU are less clear-cut.
4.12 In such cases, Article 8(4) of the Dublin III
Regulation 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[23]
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.
4.13 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).[24]
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.
4.14 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[25],
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.
4.15 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.
4.16 The draft amending Regulation proposes amendments
to Article 8(4) of the Dublin III Regulation which are intended
to remove the current ambiguity in the application of Dublin III
rules on unaccompanied asylum-seeking minors.
4.17 The first amendment — Article 8(4a) —
reflects the Court's recent judgment on the corresponding provision
of the Dublin II Regulation by requiring the Member State in which
an unaccompanied minor is present to 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.
4.18 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.
4.19 The Commission acknowledges that the Court's
judgment in MA and others 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.[26]
4.20 In both of the situations envisaged in Articles
8(4a) and 8(4b), the proposal requires the determination of the
responsible Member State to be based on the best interests of
the minor. The remaining amendments seek to ensure that Member
States cooperate with one another in applying the Dublin III rules
on unaccompanied minors.
4.21 Our Ninth Report, agreed on 3 September 2014,
provides further information on the changes contained in the draft
amending Regulation and the Government's position.
The Minister's letter of 23 January 2015
4.22 The Minister (James Brokenshire) writes to confirm
that the UK has opted in the draft amending Regulation, adding:
"The proposal presented by the European
Commission did not contain any points of substance with which
we disagreed in principle. In the negotiations, we will seek clarification,
and, subject to the response, possible amendment of the text regarding:
· the position of an unaccompanied asylum
seeking child (UASC) in a situation where an earlier application
for asylum has already been considered and a final rejection given
by another Member State, insofar as this was discussed by the
Court of Justice in the case of MA and others C-648/11;
· unaccompanied minors who have not
made an application for asylum in the State in which they are
present but who have applied in another State because, as currently
drafted, it is not immediately clear how the proposal might work
in practice for this group."
4.23 The Minister explains that officials raised
these points with the Commission during negotiations on the draft
amending Regulation during the Italian Presidency (from July to
December 2014). He continues:
"Several Member States made identical points
during the negotiations and drafting changes have been suggested
in compromise texts, including the introduction of an explicit
reference to the possibility to make a request to another State
to take back an unaccompanied asylum seeking child where an earlier
application for asylum has been considered by that State and transfer
is in the best interests of the child. However, there is currently
no agreement in the Council Working Group as to the precise terms
for the inclusion i.e. whether or not an explicit shorter deadline
for the Dublin procedure from application to transfer (including
any legal challenge) should be included."
4.24 Turning to the circumstances envisaged in the
amendments proposed to Article 8(4b) of the Dublin III Regulation,
the Minister says that he is unable to provide an accurate assessment
of the number of unaccompanied minors in the UK who have not "express[ed]
protection needs to us" but who might have previously claimed
asylum in one or more other Member States. He continues:
"We agree with the Committee that transmitting
fingerprints to Eurodac is an option and the Commission has reacted
to questions on the same lines from several Member States with
the indication that Eurodac evidence allows the 'territorial'
State to target the information about the possibility to lodge
an application appropriately. The Commission also underlined
that there is no requirement on Member States to advise all unaccompanied
minors of the possibility to claim asylum, rather this should
be done only when Eurodac evidence or other information, such
as a statement from the child or his/her representative, suggests
an asylum application has been made in another State. This addressed
our concerns (and those of other States) that national authorities
might be required to act in a way that would encourage unnecessary
asylum claims from children where their needs were not related
to international protection. Negotiations will now continue under
the Latvian Presidency."
Previous Committee Reports
Ninth Report HC 219-ix (2014-15), chapter 18 (3 September
2014). Our Ninth Report HC 219-ix (2014-15), chapter 5 (3 September
2014) and our Twenty-first Report HC 219-xx (2014-15), chapter
1 (19 November 2014) are also relevant.
19 Case C-648/11. Back
20
These are commitments given by the Minister for Europe (Mr David
Lidington) in his Written Ministerial Statement of 20 January
2011 col. 51WS. Back
21
(36238), 12013/14, COM(14) 464; Draft Regulation establishing
a European Union agency for law enforcement training (Cepol),
repealing and replacing Council Decision 2005/681/JHA. Back
22
Regulation (EU) No. 604/2013, OJ No. L 180, pp.31-59, 29.06.2013. Back
23
Council Regulation (EC) No. 343/2003, OJ No. L 50, pp.1-10, 25.02.2003. Back
24
Case C-648/11, 6 June 2013, MA and Others v. Secretary of State
for the Home Department. Back
25
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
26
See p.4 of the Commission's explanatory memorandum. Back
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