Netherlands - District Court Haarlem, 18 November 2010, AWB 09/41370
| Country of Decision: | Netherlands |
| Country of applicant: | Afghanistan |
| Court name: | District Court Haarlem |
| Date of decision: | 18-11-2010 |
| Citation: | AWB 09/41370 |
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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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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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.” |
Headnote:
Art 17.4 of the Asylum Procedures Directive guarantees certain rights for minor applicants. This case confirmed that these rights should be known to those involved, so that the rights can be invoked before the court. Further it was confirmed that Art 3:2 of the General Administrative Law Act does not meet this requirement.
Facts:
The applicant, an unaccompanied minor, put forward the argument that the decision of the Minister to refuse his asylum claim was inconsistent with Art 17 of the Asylum Procedures Directive because the interview was conducted by an Immigration and Naturalisation Service official that did not have the proper knowledge of the special provisions applicable to minors. Further, that the decision concerning his asylum claim had been taken by an official of the Minister that did not have this knowledge. Finally, the fact that the applicant was a minor had not sufficiently been taken into account when his claim was considered.
Decision & reasoning:
The respondent claimed that Art 17.4 of the Asylum Procedures Directive had been implemented in Art 3:2 of the General Administrative Law Act. This article stipulates that an administrative body has to collect all the necessary information concerning the relevant facts and interests when making a decision.
The district court concluded that:
‘’Art 3:2 of the General Administrative Law Act is not specific enough to consider Art 17.4 of the Asylum Procedures Directive, without further policy, sufficiently implemented. The latter is intended to guarantee that during the interview of an unaccompanied minor and the decision concerning his asylum claim the vulnerable position of the minor will be taken into account. Further, that Preamble recital 14 of the Directive states that for unaccompanied minors, because of their vulnerable position, specific procedural guarantees must be implemented. Art 17.4 guarantees certain rights for minors and it should therefore be known to those involved in the process so that they can invoke these rights before the court. Art 3:2 Awb did not meet this requirement.’’
The district courts did not agree with the respondent’s claim that its internal organisation is in conformity with the Directive because a lot of attention is paid to the decision making of asylum claims of minors. Procedural guarantees should be known to those involved and that is not the case with this policy. The district court also considered that the respondent’s policy as stipulated in paragraph C13/3.2 of the Aliens Circular that differentiates between minors younger than 12 years old and minors older that 12 years old violates the Directive.
The fact that the official in charge of the decision of the asylum claim has followed internal training concerning the applications of minors is insufficient to claim that he had the necessary knowledge of the provisions available for minors. Moreover, it did not follow from the decision that the age of the applicant had been taken into account.
Outcome:
The appeal of the applicant was allowed.
Observations/comments:
Art 3:2 of the General Administrative Law Act states:
In preparing a decision the administrative body gathers the knowledge necessary to weigh up the relevant facts and interests
C13/3.2 of the Aliens Circular states: Only specially designated and trained officials of the Immigration and Naturalisation Service are allowed to interview (un)accompanied minors under the age of twelve years. The interview has to take place in specifically constructed child-friendly interviewing rooms. When a psychological or pedagogical study examination indicates that a (un)accompanied minor under the age of twelve years is experiencing problems that might impede the interview, the interview of this child might be abandoned.