Case summaries

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. 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.

The applicant appeals against the ruling passed by the Directorate General of Domestic Policy on 14th February 2014, issued at the request of the Ministry, denying his application for international protection and against the ruling passed on 19th February 2014, denying his request for a review of his application, both denied in compliance with the Law. The applicant has requested residence in Spain on humanitarian grounds given that he has a son who is a minor and is of Spanish nationality. He invokes his right to remain at his son’s side to care for him.  

The Applicants applied for asylum in Sweden, stating that they had arrived from Syria. However, investigations showed that the Applicants had entered Hungary via Serbia and applied for asylum in Hungary prior to arriving to Sweden. The Migration Court of Appeal found that the Hungarian asylum procedure and reception conditions did not contain such substantial deficiencies, that it was impossible to transfer the Applicants to Hungary in accordance with the Dublin III Regulation. However, two of the Applicants were small children, and had the Applicants been transferred to Hungary there was an imminent risk of lengthy waiting periods and a long period in custody before the Applicants could have their applications examined, which would have a considerable negative effect on the children’s health and development. Therefore, according to the Migration Court of Appeal a transfer of the Applicants under the circumstances was not consistent with the principle of the best interests of the children. With rejection of the Migration Agency’s complaint, the Applicants’ asylum applications were to be examined in Sweden.

This case dealt with the issue of whether the Secretary of State’s certification of the asylum claims of the two independent applicants as “clearly unfounded” was flawed on public law grounds, and the important difference between a decision on refugee status itself and a decision on a claim being “clearly unfounded”.
 

The appeal procedure dealt with the question of whether the complainant is to be classified as a minor according to Article 2 lit. g of the Dublin III Regulation, with the consequence that Article 8 para. 1 of the Dublin III Regulation is applicable and the complainant can therefore remain with her sister in Switzerland. In particular the term “legally present” and the procedure of taking evidence were discussed in depth.

A member state may derogate from Article 3(1) of Regulation (EU) No. 604/2013 (the “Dublin-III-Regulation“), by examining an application for international protection despite the fact that the members state is not responsible for the examination according to the criteria laid down in the Dublin-III-Regulation.

When assessing Article 17 (1) of the Dublin-III-Regulation (the discretionary clause), the Federal Office for Migration and Refugees (the “Federal Office”) must give priority to the best interest of the child and the right to respect of family life. Furthermore, the Federal Office must take due account of the possibility of family reunification in accordance with Article 6 (3) (a) of the Dublin-III-Regulation.

In the event that an application for international protection allows for family reunification and also safeguards the best interests of the child, there is no room for discretion by the Federal Office in making an assessment under Article 17 (1) of the Dublin-III-Regulation.

Although Article 17 (1) Dublin-III-Regulation determines the responsibility of the Member States to examine applications for international protection, it governs not only the relationship between the Member States but also serves to protect fundamental rights. Thus, it also aims at the protection of the individual and provides for a subjective right, which can be enforced in a court of law. 

A refusal to permit re-unification of family members with a child granted asylum in the United Kingdom can constitute a disproportionate breach of the right to respect for family life enjoyed by all family members under Article 8 ECHR despite the Immigration Rules not providing for family reunification where a child has been granted asylum in the UK.

The Upper Tribunal ordered the Secretary of State for the Home Department to immediately admit four vulnerable Syrians from an unofficial migrant camp in France to the United Kingdom in order to be reunited with refugee family members during the examination their asylum applications. Although they had not applied for asylum in France or been subject to Dublin procedures, the particular circumstances meant that failing to do so would lead to a disproportionate interference with their right to respect for family life. 

The case dealt primarily with the standard of reasoning required in credibility assessment among other issues (travel findings and best interests of the child). In quashing the RAT decision, the High Court ruled that the RAT had not met the standard of reasoning required in assessment of the credibility of oral testimony (as established in the jurisprudence of the Court and EU law), reiterating the obligation upon the decision maker to ensure that each negative credibility finding is accompanied by an adequate rationale clearly outlining the reasons for such findings.

The provisions on responsibility for unaccompanied minors in Article 6 of the Dublin II Regulation are protective of the individual, as they not only govern relationships between Member States but (also) serve to protect fundamental rights.

Where there has been an unlawful rejection of an asylum application as inadmissible on grounds that another Member State is responsible under Section 27a of the German Asylum Act, this cannot be reinterpreted as a (negative) decision on a subsequent application under Section 71a of the Asylum Act, because of the different adverse legal consequences attached.