The Netherlands - Court of The Hague, 5 August 2016, AWB 16/15687, AWB 16/5690

Facts:

The case concerns an Eritrean national who was born in 2000 and who applied for asylum in the Netherlands on 25 November 2015. The Dutch authorities held that Sweden was responsible for processing the application under Article 8 of the Dublin III Regulation (Regulation 604/2013), as the applicant’s father was legally residing in Sweden. On the 29 December 2015, the Swedish authorities rejected the take charge request, stating that the best interest of the child and the own opinion of the minor in relation to his transfer were not adequately considered. The Swedish authorities thereby also indicated that a new take charge request could be made if additional information would be available.

The Dutch authorities requested the advice of Nidos, the guardianship institution for unaccompanied minors in the Netherlands. The institution held that the transfer to Sweden would be in the interest of the child since his father was residing in Sweden. The Netherlands made a new request to take charge of the applicant on 7 March 2016, which was accepted by the Swedish authorities on the 18 May 2016.

During an interview on 29 March 2016, the unaccompanied minor declared that he did not want to return to Sweden as he did not trust the Swedish authorities. Moreover, his father had requested family reunification with his family residing in Ethiopia, which was rejected. The applicant therefore appealed the transfer decision, referring to Article 6 (1) of the Dublin III Regulation, which states that the best interests of the child shall be a primary consideration for Member States when applying the Dublin III Regulation. More specifically, the applicant refers to Article 6 (3), which holds that in assessing the best interests of the child, Member States should take due account of the minor’s well-being and social development and the views of the minor. According to the applicant, the Dutch authorities had insufficiently taken into account his objections. He also refers to the letter of Nidos of 26 February 2016 which states that there is a great chance that he would (again) withdraw from supervision once in Sweden. 

Decision & reasoning:

The court of Amsterdam considers that Sweden is the responsible Member State pursuant to Articles 6 and 8 of the Dublin III Regulation, as the applicant is an unaccompanied minor and his father is legally residing in Sweden. The court states that Nidos is an expert institution and its advice should be followed in assessing the best interest of the child. The applicant’s lack of trust in the Swedish authorities is insufficient to decide that the best interests of the child have not been taken into account. Moreover, the applicant will be able to file objections or get assistance in case of mental health or social problems in Sweden. The court does not find it necessary that the Dutch authorities ask guarantees from the Swedish authorities with regard to the suitability of the father to take care of the applicant.

Outcome:

Appeal dismissed. 

Subsequent proceedings:

No further appeal was lodged. 

Observations/comments:

In a case analysis note written by Wil Eikelboom (Prakken D Oliveira Human Rights lawyers) and Germa Lourens (Nidos), the authors underline that Nidos often gives its opinion on the best interest of the child (for example at the request of a lawyer) but the IND does not take that expert opinion into account in its decision making. In the case discussed, the Dutch authorities were forced by the Swedish authorities to ask the opinion of Nidos, and Nidos recommended the opposite of what the child expressed that he wanted. The report was prepared by a youth protector, a behavioral scientist and a ‘Dublin’-expert after the child and his father were consulted. As the court has found that Nidos reports should be considered as expert reports, the IND in the future will not simply be able to set these reports aside, but an expert report must be given their end to substantiate their arguments.