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PRESS RELEASE: MA & Others vs United Kingdom

25 February 2013

Advocate General Cruz Villalón of the CJEU delivered his Opinion in the case of MA.

On 21 February 2013 Advocate General Cruz Villalón of the Court of Justice of the European Union (CJEU) delivered his Opinion in the case of MA and adopting the position that the AIRE Centre has advocated towards the return of unaccompanied asylum-seeking children from one EU Member State to another.

The AIRE Centre intervened in the case, providing written and oral submissions for the hearing on 5 November 2012, advocating for an approach to the relevant provisions that emphasises the best interests of the child, in accordance with the EU Charter of Fundamental Rights and overarching international instruments and legal principles, thereby safeguarding the rights of the child and recognising the primacy of fundamental rights in the EU legal order. (See our previous Press Release, dated 19 November 2012, for further details).

The Advocate General has clearly identified significant merit in our position, noting in his Opinion that when an unaccompanied minor has lodged successive applications for asylum in more than one Member State, in circumstances when either the minor’s best interests preclude responsibility being allocated to a Member State where [s]he has relatives, or [s]he does not have any relatives in the European Union:

 a systematic interpretation of the Regulation, supplemented by an interpretation consistent with the principles of the  Charter, leads me to conclude that the criterion of the minor’s best interests is relevant not merely to determining whether,  in the case of a single application for asylum, the Member State responsible must either be that where a relative of the  minor is legally resident or that which, having received that application, is determining which Member State is responsible. For the reasons that I shall set out below, the minor’s best interests must also be decisive in order to decide which Member State, of all those that have received an asylum application, is the Member State responsible. (§ 64)

The case arose because children – who had no family anywhere in the European Union – claimed asylum in the UK after having claimed asylum in Italy.  The UK authorities concluded they could return the children to Italy.  The AIRE Centre became involved in the case in order to promote our view that in such circumstances, the UK is ordinarily required to determine the children’s claim for asylum, and the best interest of the child are the decisive factor.

The Advocate General is an officer of the Court whose Opinion is submitted to the Court’s judges to assist them in drafting the Court’s binding judgment.  The Court has not yet announced the date the judgment will be delivered. 

The AIRE Centre remains very grateful to the Strategic Legal Fund for Vulnerable Young Migrants (formerly for Refugee Children and Young People) 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 reiterate 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.

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