Luxembourg - Administrative Tribunal, 21 April 2017, 2017-04-21_39131
| Country of Decision: | Luxembourg |
| Country of applicant: | Afghanistan |
| Court name: | Administrative Tribunal |
| Date of decision: | 21-04-2017 |
| Citation: | 2017-04-21_39131 |
Keywords:
| Keywords |
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
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Education (right to)
Description
PerArt. 10 RCD Member States must grant minor children of asylum seekers and asylum seekers who are minors access to the education system under similar conditions as nationals of the host State for so long as an expulsion measure against them or their parents is not actually enforced. Per Art. 27 QD Member States must grant full access to the education system to all minors granted refugee or subsidiary protection status, under the same conditions as nationals . Adultsgranted protection status are entitled to access to the general education system, further training or retraining, under the same conditions as third country nationals legally resident |
Headnote:
Where an asylum application is made by an unaccompanied child, the tribunal must take into consideration the best interests of the child in its examination (for example, education). The decision includes a presumption of minority that the tribunal must rebut in order to allow for the transfer of the applicant.
Facts:
On 20 December 2016, the applicant applied for asylum which was followed by a hearing. On 05 January 2017, another hearing was conducted in order to determine the State responsible for this application according to the Dublin Regulation.
On 07 February, the Ministry informed the application of his future transfer to Poland, a decision which the applicant subsequently appealed.
Decision & reasoning:
In its interpretation of Art. 8 Dublin III, the tribunal referred to the CJEU jurisprudence regarding Art. 6 of Regulation 343/2003, which found that it was in the best interest of the child to remain in the country in which he had applied for international protection. The responsible State is thus the one in which the unaccompanied child has applied for asylum. Thus, according to the Tribunal, the criteria under Article 8 prevail over Article 18.
Nevertheless, another State may be found responsible to examine this application in the event that the applicant is an adult (this must be reasonably to adduce from the evidence provided in the case).
Bone tests were conducted in order to establish the age of the applicant. These tests were not unanimous and the tribunal noted the differing results, which meant that the age of the applicant was not established beyond doubt. Because of this uncertainty, the tribunal established a presumption of minority (which is based on Art. 20-4 of the Law of 28 December 2015).
The judge further took into consideration that the transfer of the applicant would severely impair the pursuit of his education in Luxembourg.
Outcome:
The tribunal accepted the appeal and negated the decision of the Ministry.
Observations/comments:
As a result of this decision, the Ministry must now rebut the presumption of minority for asylum-seekers in the event that there is no conclusive evidence establishing their age.
The best interest of the child may also include their ability to attend school, which is an argument that should be used for unaccompanied minors.
The original version of this summary was written by Passerell a.s.b.l. The translation into English was completed by Jessica Pradille.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Luxembourg - Law of 28 December 2015 : Article 20 (4) |