Unaccompanied Minor Asylum Applications

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
21 February 2013

Advocate General Cruz Villalón considers that, when an unaccompanied minor has lodged asylum applications with more than one Member State, the Member State responsible for examining the application will be that where the most recent application was lodged.

For this to apply, no member of the minor’s family must be legally present in another Member State and the minor’s best interests must not require a different solution.

The ‘Dublin II’ Regulation lays down the criteria for determining the Member State responsible for examining an asylum application lodged in the EU, so that, in principle, responsibility lies with a single Member State. When a third-country national seeks asylum in a Member State which is not that designated as responsible by the Regulation, the latter provides for a procedure for the transfer of the asylum seeker to the Member State responsible.

Where the applicant for asylum is an unaccompanied minor, the Regulation provides that the Member State responsible for examining his application will be that where a member of his family is legally present, provided that this is in his best interests. If there is no such family member, the Member State responsible for examining the application will be that where the minor has lodged his application for asylum. However, in that latter case, the Regulation does not expressly prescribe a solution where the minor has lodged asylum applications in several Member States. That issue is interpreted for the first time in the Opinion delivered today by.

The fundamental consideration of the minor’s best interests, provided for in the Charter of Fundamental Rights of the European Union, must be decisive in order to decide which Member State, of all those that have received an asylum application, is the Member State responsible. This has to be reconciled, in addition, with the objectives of clarity and speed which the Regulation advocates for the procedure for determining the Member State responsible for examining an asylum application. Consequently, the responsibility in question must be allocated to that Member State which is best placed to ascertain the minor’s best interests. This will normally be the Member State where the minor is present, which will usually be the Member State which has received the most recent asylum application. That Member State is the one which is in a position to question the minor and is able to have regard to what he himself understands to be his own best interests. In addition, neither for reasons of time nor in view of the best treatment owed to minors is it appropriate to make this type of asylum seeker engage in travel that can be avoided.

The Advocate General acknowledges that the solution proposed may have the undesired effect of giving rise to a type of ‘forum shopping’, with the result that asylum seekers may be tempted, for the purposes of lodging their application, to choose the Member State where the law which is most advantageous to them will be applied. However, that potential risk is sufficiently justified by the fact that it is only in this manner that due attention can be given to the minor’s best interests.

In any event, the criterion that the Member State responsible is that where the most recent application for asylum has been lodged is warranted only in that it best lends itself, in principle, to serving the minor’s best interests. Accordingly, if, in a given case, that consideration is inapplicable, the minor’s interests require the criterion in question not to be tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.