Case summaries
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.
The presumption of minority does not apply when bone testing shows the applicant’s majority and when a doctor does not express doubts on the results. The tribunal did not request further tests.
The imposition of a "one-off" expedited procedure in France for unaccompanied children wishing to reunite with their family in the UK fell within the framework of the Dublin Regulation. The failure by the UK Secretary of State to give full effect to the Dublin Regulation (most notably Article 17) and the Commission’s Implementing Regulation was unlawful and as a consequence the applicant was deprived of a series of procedural safeguards and protection.
In addition the applicant’s procedural rights have been violated by virtue of the procedural deficiencies and shortcomings during the interview and review stage of the applicant’s request for family union. The lack of adequate enquiry, sufficient evidence gathering and a rushed mechanical decision making procedure meant that the applicant was subject to a process which did not adequately meet his needs.