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PRESS RELEASE: The Queen on application of MA, BT, DA v Secretary of State for the Home Department, intervener The AIRE Centre (UK)

6 June 2013

The CJEU finds that EU Member States are responsible for examining asylum claims by unaccompanied children even if they first claimed asylum elsewhere in the EU.

The AIRE Centre welcomes the judgment of the Court of Justice of the EU, delivered today, finding that EU Member States are responsible for examining asylum claims by unaccompanied children even if they first claimed asylum elsewhere in the EU.

The AIRE Centre intervened in the case, stressing the importance of respecting the best interests of the child. The case concerned particularly vulnerable children who claimed asylum in the UK after having first claimed asylum elsewhere in the EU. The children had no family members anywhere in Europe. The court interpreted the second paragraph of Article 6 of EU Regulation 343/2003 (widely known as ‘the Dublin II Regulation’), which was ambiguous on this point, by making reference to the best-interests principle enshrined in Article 24 of the EU Charter of Fundamental Rights. According to the CJEU, the best interests of the child are served by not subjecting the child to unnecessary travel, and the Member State in which the minor is currently present is the state that ought to determine his or her claim.

“We are pleased to see that the Court recognises unaccompanied asylum seeking children as constituting a particularly vulnerable group and has interpreted an ambiguous provision of EU law accordingly”, said Matt Moriarty, legal project manager at the AIRE Centre. Adam Weiss, legal director, added “It is a useful judgment as it shows national judges the importance of taking into account the Charter of Fundamental Rights when interpreting Union law”.

When the UK ascertained that each of the children in the case had first claimed asylum in another Member State, they arranged for transfer of the child to the first state, to which the other states agreed. One child, DA, was actually sent back to Italy where she first applied for asylum. The children brought actions in the High Court of Justice of England and Wales against the UK authorities to challenge the legality of the transfer agreements. The UK thereafter, exercising discretion, agreed to handle the asylum claims of the children, and DA was brought back to the UK. Two of the children were offered the opportunity to withdraw their claims which they declined.

The Court of Appeal referred the following question to the Court of Justice of the EU: “‘In Regulation [No 343/2003], where an applicant for asylum who is an unaccompanied minor with no member of his or her family legally present in another Member State has lodged claims for asylum in more than one Member State, which Member State does the second paragraph of Article 6 make responsible for determining the application for asylum?’” The Court’s answer was: “The second paragraph of Article 6 of 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 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’.”

The AIRE Centre is particularly grateful to the Strategic Legal Fund for funding the travel to the hearing in Luxembourg and related costs. The AIRE Centre would not have been able to attend otherwise. We would also like to express our sincere thanks to the team at Freshfields Bruckhaus Deringer (led by William Robinson and Deba Das) for their central role in litigating the AIRE Centre’s intervention and to Catherine Meredith and Raza Husain QC, who acted as counsel pro bono on the AIRE Centre’s behalf.

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