The Netherlands - Court of The Hague, 23 December 2016, AWB 16/3574
| Country of Decision: | Netherlands |
| Country of applicant: | Eritrea |
| Court name: | Court of The Hague |
| Date of decision: | 23-12-2016 |
| Citation: | Applicant v The State Secretary of Security and Justice, 2016, Court of The Hague, AWB 16/3574 |
Keywords:
| Keywords |
|
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." |
|
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.” |
|
Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
Headnote:
Switzerland is not the responsible Member State pursuant to Articles 6 and 8 of the Dublin III Regulation, since the unaccompanied minor lives in a foster family in the Netherlands and the Dutch authorities should take into consideration the factors of Article 6 (3) Dublin III Regulation, including the views of the minor. According to the court, Nidos (the guardianship institution for unaccompanied minors in the Netherlands) is an expert institution and its advice should be followed in assessing the best interest of the child.
Facts:
The case concerns an Eritrean national who was born in 2002 and who applied for asylum in the Netherlands on 7 April 2016. The Dutch authorities held that Switzerland was responsible for processing the application under Article 8 of the Dublin III Regulation (Regulation 604/2013), as the applicant’s older sister was legally residing in Switzerland. On the 20 September 2016, the Swedish authorities accepted the take charge request.
The applicant appealed the transfer decision, taking the view that the transfer to Switzerland is not in her best interest since she has no special relationship with her older sister. The applicant has never been a member of the family of her older sister and her sister also does not want to take care of her. Moreover, the applicant does not want to depend on her sister. In the Netherlands, the applicant resides with another Eritrean minor girl in a foster family and she has a guardian. Her situation has significantly improved, because during the 9 months that she stayed in Switzerland she resided in reception centres for adults.
Decision & reasoning:
The court considers that Switzerland, the country where the applicant’s sister is legally staying, is only responsible pursuant to Article 8, first paragraph, of the Dublin III Regulation (Regulation 604/2013) if that is in the best interest of the minor. The Dutch authorities should take into account Article 6(3) of the Dublin III Regulation in determining the best interest of the unaccompanied minor. According to the court, there is no possibility of family reunification, as the applicant was never part of the family of her sister. The fact that the applicant and her sister might form a family in the future does not mean that there currently exists an opportunity for reunification.
The court holds that the applicant, who is almost 15 years old, has taken a clear position and that the Dutch authorities have not made clear why this position would be incorrect, or could be ignored. Furthermore, Nidos, the guardianship institution for unaccompanied minors in the Netherlands, has taken the clear position that it is in the best interest of the applicant if the asylum application would be processed in the Netherlands. The court states that Nidos has the expertise to assess the best interests of the child.
Outcome:
Appeal granted.
Subsequent proceedings:
No further appeal was lodged.
Observations/comments:
Similarly, case AWB 16/30353, 11 January 2017, from the Hague Court confirms that Nidos is to be regarded as an expert authority with regards to the best interests of the child.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| The Netherlands - Article 30 (1) of the Foreigners Act 2000 |