Case summaries

Article 8 (1) of the Dublin III Regulation provides for a subjective right to family reunification, both for the applicant himself and for the family members present in the Member State responsible. This right is also justiciable to the extent that denial of transfer affects the rights to family unity and the best interest of an unaccompanied minor.

The expiry of the time limit for the submission of a take charge request pursuant to Article 21 (1) of the Dublin III Regulation, as well as for the submission of a request to review the rejection of a take charge request (so-called "remonstration") pursuant to Article 5 (2) of the Implementing Regulation to the Dublin II Regulation, does not reverse the responsibility back to the requesting Member State if the failure to comply with the time limit cannot be attributed to the applicant and family unity and the best interests of the child take precedence over the procedural rules on time limits.

Due to the paramount importance of the right to family unit and the best interests of the child, the discretion under Article 17(2) of the Dublin III Regulation translates into a legal obligation of the Member State to invoke the sovereignty clause where there are close family ties. Beyond such family ties, no further special relationship or interdependency is required.

Whether a minor is "unaccompanied" within the meaning of Article 2 lit. j of the Dublin III Regulation depends on the domestic law in the Member State where the minor is present.

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 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 refusal of an entry decision given to an unaccompanied child at the Franco-Italian border is manifestly unlawful and constitutes a severe breach of the applicant’s interest.

The competent authority has to respect as legally binding a court order that determines a certain date of birth and thereby the minority of an applicant. This is also the case if the applicant himself indicates another (earlier) date of birth.

The personal interview of a minor without his legal representative constitutes a significant procedural violation. The facts are presumed to not be ascertained. The competent authority has to ascertain the facts and circumstances once again. 

The benefit of the doubt benefits the minor.

Unaccompanied minor asylum seekers must always be provided with a legal representative. The transfer of custody by administrative bodies and not by a Court is not sufficient. Thus, the first-instance decision rejecting the asylum application of an Iraqi minor is invalid.

A lack of the State authorities’ fulfilment of obligations under article L.223-2 of the Code of Social Action and Families can create serious harm to a fundamental right.

The obligation by the applicant to put in place emergency accommodation is reinforced when a child’s health, security or morality is put in danger. 

It is within the powers of the interim relief judge to order urgent measures to stop serious and illegal harm to fundamental rights of migrants in Calais.

In case of reasonable doubt, the statement of the applicant for asylum about his or her date of birth has to be viewed as a credible statement.