Case summaries

In principle both parents may claim the right to join an unaccompanied minor refugee.  

This right to join a child will only apply up until the point that the latter comes of age.

Parents may present a claim for a visa by means of an application for temporary legal protection before the child comes of age. 

The Constitutional Court revoked the decision by the Asylum Court, as it violated the right of the Applicant to respect for his family life in accordance with Art 8 of the ECHR. In particular, the reference by the Asylum Court to the possibility of maintaining the relationship with his one-year old child (with asylum status in Austria) by means of modern media (Internet, Skype, telephone,…) was incomprehensible.

Neither the Applicant, who was approximately nine years old at the time of the decision, nor her parents had submitted reasons for persecution specifically relevant to the Applicant in the proceedings at the court of first instance or in the appeal. Despite this, the Asylum Court reached the conclusion – amongst other things after a personal hearing of the Applicant – that the Applicant would be persecuted directly by the state or privately in Afghanistan owing to her membership of a particular social group and the religious-political attitude to which she would be subjected. In doing so the Asylum Court applied child specific considerations.

In addition, the Court stated that group persecution was to be assumed with regard to Afghan women.

The right to family reunification involving Union citizens who are minor children living with their mothers, who are third country nationals, in the territory of the Member State of which the children are nationals and changes in the composition of the families following the mothers’ remarriage to third country nationals and the birth of children of those marriages who are also third country nationals. The case involves the right to respect for family life and how to take into consideration the children’s best interests.

When reaching a decision, the Defendant should have protected the best interest of the child. Taking into account the fact that the Applicant is a minor and providing legal representation for a minor applicant, are necessary elements in the process of demonstrating and establishing the facts. The principle of protecting the best interest of the child has to be enforced when assessing the risk that the absolute rights of the child might be violated if he is returned to his country of origin and needs to be reflected in the Defendant’s burden of proof as well as in the rules and standards of  evidence (in relation to subsidiary protection).

The Defendant should already have started searching for parents during the procedure for international protection and not only once the procedure for removing the child from the state has begun.   

Threats and violence against a person’s family members can be considered as acts of persecution where that person is connected to the facts which previously led to the violence..

The Plaintiff needs to state all circumstances known to him in relation to his persecution; however he does not need to establish a material and legal connection between the persecution and the reasons for persecution.

The fact that somebody is a child in Afghanistan can mean that he belongs to particular social group.

The asylum application of the applicant, a minor suing through her mother, had been deemed withdrawn. An application to have the asylum claim readmitted was refused by the Minister for Justice, Equality and Law Reform. The High Court refused to set aside the decision of the Minister. The applicant applied to the High Court for leave to appeal the matter to the Supreme Court, and/or a reference to the Court of Justice of the European Union (ECJ). The High Court refused both applications.

Insofaras the Federal Asylum Agency did not apply an age-appropriate standard when assessing the credibility of the minor Applicant and did not comply with the particular obligation to provide instruction and the duty of care applicable in the case of a minor, the authority committed a gross procedural error.

In a decision on whether the return of an unaccompanied minor to Hungary under the Dublin Regulation is unlawful in light of Art. 3 ECHR and therefore the sovereignty clause should be used, Art. 24(2) of the Charter of Fundamental Rights of the European Union(CFRU – best interest of the child as a primary consideration for authorities) is significant.

The European Parliament sought the annulment of Article 4(1), Article 4(6) and Article 8 of the Family Reunification Directive, as being incompatible with the right to respect for family life and non-discrimination based on age.

The Court found that these provisions created a limited margin of appreciation for Member States which was no greater than that allowed for in ECtHR case law, and could be exercised compatibly with fundamental rights.