Case summaries

An asylum applicant who is below the age of 18 at the time of his or her entry into the territory of a Member State and of the introduction of his or her asylum application in that State, but who, in the course of the asylum procedure, attains the age of majority and is thereafter granted refugee status must still be regarded as a “minor” for the purposes of that provision.

The applicant claimed that Germany violated his right of family life under Article 8 of the Convention by refusing to grant him a residence permit. 

The detention conditions, to which the applicants had been subjected to in police stations, while being under protective custody as unaccompanied minors, violated Article 3 ECHR.  Violation of Article 3 in conjunction with Article 13 on account of the applicants’ inability to bring a complaint against the detention conditions.

Their placement in protective custody was an unlawful detention measure under Article 5, as there were no time limits, no vulnerability assessment and no consideration of this form of custody as one of last resort. The applicants had no possibility to exercise their rights under Article 5 (4), as they could not establish contact with their lawyer and the lack of official detainee status would have raised practical obstacles in any attempt to challenge their detention.

The applicants although minors were detained in a detention facility where they were mixed with adults. The detention lasted until the Maltese government determined (in a process that took 8 months) that they were minors.

Moreover, the harsh conditions in the detention facilities amounted to inhuman or degrading treatment.

The following questions are referred to the Court of Justice of the EU for a preliminary ruling:

(i) when dealing with transfer of a protection applicant under regulation 604/2013 to the UK, is a national decision-maker, in considering any issues arising in relation to the discretion under art. 17 and/or any issues of protection of fundamental rights in the UK, required to disregard circumstances as they stand at the time of such consideration in relation to the proposed withdrawal of the UK from the EU;

(ii) does the concept of the “determining member state” in regulation 614/2013 include the role of the member state in exercising the power recognised or conferred by art. 17 of the regulation;

(iii) do the functions of a member state under art. 6 of regulation 604/2013 include the power recognised or conferred by art. 17 of the regulation;

(iv) does the concept of an effective remedy apply to a first instance decision under art. 17 of regulation 604/2013 such that an appeal or equivalent remedy must be made available against such a decision and/or such that national legislation providing for an appellate procedure against a first instance decision under the regulation should be construed as encompassing an appeal from a decision under art. 17;

(v) does art. 20(3) of regulation 604/2013 have the effect that in the absence of any evidence to displace a presumption that it is in the best interests of a child to treat his or her situation as indissociable from that of the parents, the national decision maker is not required to consider such best interests separately from the parents as a discrete issue or as a starting point for consideration of whether the transfer should be take place.

Family unity and the best interests of the child are high priorities when applying the Dublin III Regulation.  A child who has applied for international protection in Germany but has members of his family in Greece is entitled to family unity with them in Germany. The Dublin III Regulation specifies that this transfer should be carried out within six months of a Member State’s acceptance of the take charge or take back request. The time period to transfer starts from the Member State’s acceptance of the request. The right of the asylum seeker to be transferred within said time-limit is a subjective right. Whilst Germany had accepted the take charge request they had only planned to transfer the applicants at a time after the six month deadline. An interim injunction was therefore necessary in order to ensure that the rights of the applicant were respected. 

The applicant, a Jordanian citizen feared that her eldest daughter who was 17 years old would be forced by the applicant’s in-laws to marry a cousin. The Refugee Appeals Board noted that the daughter had an asylum motive of her own and according to Article 12 of the Convention on the Rights of the Child she had a right to be heard. To ensure a two-tier hearing and adjudication the Board remitted the case to the Danish Immigration Service.

Following the appeal of the Children’s Rights Ombudsman, the Supreme Administrative Court set aside the order of the Regional Administrative Court, in relation to a challenge to the decision of the Polish Refugee Board, and set aside the aforementioned decision to refuse tolerated stay, dismissing the appeal in all other respects.

The court justified its decision with reference to the procedural errors of the Polish Refugee Board, which included failing to gather evidence in an appropriate manner and inappropriately establishing the facts relating to the Applicant’s children. 

The reduction in the financial allowance available to child dependants of asylum seekers was not contrary to the requirement that the best interests of the child be a primary consideration in all actions concerning children.

Following the careful examination of International, European and domestic law, the Court concluded that the grant of refugee status supersedes any order made by a Family Court (regarding the return of the child to Pakistan), because it is the Secretary of State for the Home Department  that is the entrusted public authority to deal with asylum matters.  However, were the Family Court to discover new facts, the relevant public authority would be responsible, in principle, under the tenets of UK Administrative Law to review their decision.