Court of Justice decision on Member state responsibility for unaccompanied children seeking asylum

Tuesday 11 June 2013

In the case of MA, BT & DA the Court of Justice of the European Union has decided that unaccompanied children who have claimed asylum in another European country will no longer be sent back to that country to have their asylum claims decided there. If they have claimed asylum in the UK, unless they have family in another EU country, they will remain in the UK for their cases to be decided despite having already claimed asylum in another Member State previously.

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MA, BT and DA were represented by Stephen Knafler QC, Bryony Poynor and Kathryn Cronin instructed by Liz Barratt at Bindmans LLP and Deirdre Sheahan at Paragon Law.

Prior to this decision of the CJEU the practice of Member States was to remove unaccompanied children to other European States where they have previously claimed asylum, based on what is known as the Dublin II Regulation. Under this regulation, EU countries claim they have the right to remove asylum applicants back to the country in Europe in which they first arrived.

The policy of the UK Home Office and the majority of other EU states has been that they can remove unaccompanied children under the Regulation, with no planning or arrangements in place in the receiving country and irrespective of the welfare needs of the child in question. It has resulted in dawn raids, forced removal of children who then face uncertainty and in many cases destitution and homelessness in the third country with no planned provision for their care.

There is a requirement that the fundamental rights of the EU should be observed, including the right whereby in all actions relating to children, whether taken by public authorities or private institutions, the child's best interests are to be a primary consideration. Accordingly, in the interest of unaccompanied minors, it is important not to prolong unnecessarily the procedure for determining the Member State responsible, and to ensure that unaccompanied minors have prompt access to the procedures for determining refugee status.

Please click here for the judgment.

Please click for the Press Release from The European Court of Justice

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