The Court of Justice of the European Union (CJEU) has just ruled on a case related to the right to asylum that has caught our attention, especially in a context such as the current one, marked by a migratory crisis that is dragging on over time.
The case concerns a decision to return an unaccompanied minor.
The Court’s conclusion is that Member States must verify that in the State of return a suitable reception is available for the minor, with the best interests of the minor prevailing over any other legal aspect. The following is a commentary on this important judgment.
The judgment, handed down on January 14, 2021, also ensures that if, at the removal stage, adequate reception can no longer be ensured, the Member State may not enforce the return decision. Remember that we are specialists in international cases involving minors.
If you need legal advice in an international family law case, please contact us.
Case details
The CJEU analyzes a case that occurred in June 2017.
An unaccompanied minor, who was then 15 years and four months old, filed an application in the Netherlands for a residence permit for a fixed period of time under the right of asylum. In the context of this application, the minor indicated that he was born in 2002 in Guinea.
After the death of his aunt with whom he lived in Sierra Leone, he claimed to have moved to Europe.
He relates that, in Amsterdam (Netherlands), he was a victim of human trafficking and sexual exploitation, as a result of which he now suffers from severe psychological disorders.
In March 2018, the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands) ruled ex officio that the minor was not eligible for a time-limited residence permit and the rechtbank Den Haag, zittingsplaats ‘s-Hertogenbosch (Court of First Instance of The Hague, seat of Hertogenbosch, Netherlands) specifies that he is not entitled to be granted refugee status or subsidiary protection.
Under Dutch law, the decision of the Secretary of State amounts to a return decision. In April 2018, the minor lodged an appeal against this decision with the rechtbank Den Haag, zittingsplaats ‘s-Hertogenbosch, claiming, in particular, that he does not know where his parents reside; that, upon his return, he would not be able to recognize them; that he does not know any other members of his family and that he does not even know whether they exist.
In response, the rechtbank Den Haag, zittingsplaats ‘s-Hertogenbosch explains that Dutch regulations make a distinction based on the age of the unaccompanied minor.
In the case of minors who are under 15 years of age at the date of submission of the asylum application, before a decision is taken on the asylum application, an investigation is carried out regarding the existence of adequate reception in the State of return.
If there is no such reception, these minors are granted an ordinary residence permit.
In the case of minors who, like the one under analysis in this case, are 15 years of age or older at the date of filing the asylum application, such an investigation is not carried out, as the Dutch authorities appear to wait until the minors in question reach the age of 18 before subsequently executing the return decision.
Thus, during the period between their asylum application and reaching the age of majority, the residence of an unaccompanied minor aged 15 or older in the Netherlands would be irregular but tolerated.
In this context, the rechtbank Den Haag, zittingsplaats ‘s-Hertogenbosch decided to ask the Court of Justice about the conformity with EU law of the distinction made by the Dutch legislation between unaccompanied minors over 15 years of age and those under 15 years of age.
The Court’s response: the best interest of the child prevails
The Court holds that, where a Member State intends to issue a return decision in respect of an unaccompanied minor under the Return Directive, it must necessarily take account of the best interests of the child at all stages of the procedure, which entails making a general and exhaustive assessment of the situation of that minor.
Thus, the fact that the Member State concerned adopts a return decision without having first ensured the existence of a suitable reception in the State of return would have the consequence that, despite having been the subject of a return decision, that minor could not be expelled in the absence of such foster care. The minor would thus find himself in a situation of great uncertainty as to his legal status and future, in particular as regards his schooling, his relationship with a foster family or the possibility of remaining in the Member State concerned, which would would be contrary to the requirement to protect the best interests of the child. at all stages of the procedure.
It follows that, if adequate reception facilities are not available in the State of return, the child concerned cannot be the subject of a return decision.
The Court states, in that context, that the age of the unaccompanied minor is only one factor among others for the purposes of ascertaining whether adequate reception is available in the State of return and determining whether the best interests of the child should lead to a return decision not being taken against that minor.
Therefore, a Member State cannot distinguish between unaccompanied minors solely on the basis of the criterion of their age in order to verify the existence of such reception. Our firm welcomes this decision, which highlights the importance of child protection at all levels, especially in cases related to asylum for children fleeing from conflict situations.
Consult us about your cases related to minors: we will be happy to assist you.
