Court of Justice of the European Union - Opinion of Advocate General Cruz Villalón in the case C-648/11 MA, BT, DA v Secretary of State for the Home Department, 21 February 2013

Friday, October 4, 2013

The main proceedings concern three unaccompanied minors who applied for asylum in the United Kingdom after having previously lodged asylum applications in the Netherlands and Italy. The British authorities decided first to send them back to those countries in application of the Dublin Regulation, but later they ruled that the UK would take responsibility for their applications under the sovereignty clause. However, the minors did not withdraw the appeals they had lodged against the initial decision to sent them back. In the context of those proceedings, the Court of Appeal (England and Wales) referred the following question to the CJEU for a preliminary ruling:

In [Council Regulation (EC) No 343/2003 of 18 February 2003] establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ [2005 L 50] p. I), where an applicant for asylum who is an unaccompanied minor with no member of his or her family legally present in another Member State has lodged claims for asylum in more than one Member State, which Member State does the second paragraph of Article 6 make responsible for determining the application for asylum?

In the Advocate General's opinion, the criteria laid down in Article 6 of the Regulation must be the first to be applied to unaccompanied minors in any case, even when minors find themselves in situations envisaged by other articles of the Regulation. According to Article 6, and unless precluded by the minor's best interest, the responsibility for examining the asylum application lies with the Member State where relatives of the unaccompanied minor are legally resident. Failing this, the minor's asylum claim must be examined by the Member State in which he lodged it. However, Article 6 only envisages the situation where the minor in question has only lodged one single asylum application and therefore does not regulate the case where minors present more than one asylum claim in different countries, as in the main proceedings. AG Cruz Villalón concludes that, in such a case, the minor's best interest must constitute the basis for the interpretation of the Dublin Regulation. In his view, the minor's best interest is not only relevant for the case expressly envisaged by Article 6, but also for the determination of which of the various Member States where a minor may eventually have presented an asylum claim is responsible for examining it. The Advocate General takes the view that the determination of the responsible state on the basis of Article 6 constitutes an act of implementation of EU law by the Member States in the sense of Article 51(1) of the Charter of Fundamental Rights of the European Union. Therefore, according to Article 24(2) thereof, the child's best interest must be a primary consideration for the authorities called upon to determine the Member State responsible for an asylum application lodged by an unaccompanied minor with no relatives legally resident in the EU. The Opinion finally argues that the best-placed state to establish the minor's best interest is that of the most recent asylum application, as the minor will be most normally present in that state, which is in a position to examine the actual circumstances of the minor directly. Returning the minor to another Member State would not be appropriate neither for reasons of time nor in view of the best treatment owed to minors. However, this rule must be liable to exception if the minor's best interest so requires. The particular circumstances of the case must be regarded and only national courts can adjudicate upon that matter with full knowledge of the facts.

Therefore, AG Cruz Villalón suggests to the CJEU that [...] the Member State responsible for determining the application for asylum pursuant to the second paragraph of Article 6 of the Regulation must, in principle, having regard to the minor's best interests, and unless those interests require otherwise, be the Member State where the most recent application has been lodged.

Read the full text of the Opinion on the CJEU's website.


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Responsibility for examining application
Subsequent application
Best interest of the child
Unaccompanied minor