Germany - Higher Administrative Court Bremen, 22 February 2016, OVG: 1B303/15
Keywords:
| Keywords |
|
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:
According to § 42 f of the Eighth Book of the Social Security Code, the assessment of whether an applicant is a minor is determined by inspecting identification papers. If conclusive identification papers are not available, then the disclosure of information by the person concerned may be taken into account. When in doubt, the determination of age can take the form of a qualified inspection in accordance with § 42 f (1) of the Eighth Book of the Social Security Code. In this respect, one should take into account not only the visual appearance of a person, but also the information obtained during the conversation, which shows the mental age of the person.
Facts:
Decision & reasoning:
The Higher Administrative Court decided that the defendant was right to not take the applicant into care. It was rightly established, that the applicant was at least 18 years old.
The procedure to determine the age of a person is established in § 42 f (1) and (2) of the Eighth Book of the Social Security Code. Accordingly, the age of a person can be established by checking their identification papers. When the person concerned does not provide identification papers and his or her self-disclosure is considered doubtful, a qualified inspection needs to be carried out. This consists of the assessment of the visual appearance, which must be assessed according to transparent criteria and - with the help of a translator - of an inquiry, where the applicant has the chance to clear all doubts concerning his previous statements. The inquiry should be undertaken, in accordance with the "Four Eyes Principle" by two professionally experienced employees of the Child Services.
In this case, the employees of the respondent have come to the conclusion that due to the visual appearance the applicant is of age. The applicant’s statements about his age were not suitable to seriously raise doubts about the age assessment previously made. Also, the description about the course of his journey is not consistent and is not convincing.
Under these circumstances, there is no need for the Senate to personally interview the applicant. An oral hearing is not required by law for appeal proceedings of interim measures (Code of Administrative Court Procedure, §§150, 101 (3))
Also, from the case law of the European Court of Human Rights concerning Art. 6 ECHR there arises no obligation to hold an oral hearing .
Outcome:
The Higher Administrative Court has decided to reject the complaint against the decision of the Administrative Court.
Observations/comments:
This case summary was written by Ana-Maria Bucataru, an LLM student in Immigration Law at Queen Mary University, London.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
"Recommendations for dealing with unaccompanied minors" http://www.bagljae.de/downloads/118_handlungsempfehlungen-umf_2014.pdf