The Netherlands: Reunification of unaccompanied minors under Dublin Regulation requires an examination of the best interests of the child in every case

On 27 May 2020, the Dutch Council of State delivered its judgment (Case No. 201906353/V3) on the decision to transfer an unaccompanied child to Sweden so she may be reunited with her brother in Sweden without an examination of the best interests of the child.

The case concerned a 15-year-old unaccompanied child who made an application for international protection in The Netherlands. It was later discovered that the child had an adult brother living in Sweden. The Dutch authorities made a take-charge request so the siblings may reunite, which was accepted by Sweden, which meant The Netherlands was no longer responsible for processing the application for international protection. The applicant complained that she did not want to reunite with her brother on the basis that, inter alia, she had not seen him since she was aged five, they grew up in different households, and the brother had not expressed a desire to take care of her. It was initially held that the presence of a sibling presents a binding responsibility under the Dublin Regulation and if this is contrary to the best interests of the child, it is for the child to dispel this with objective evidence.

On appeal, the Council of State held that while reunification of siblings should be considered a priority and starting point in cases concerning unaccompanied minors, this this does not allow authorities to rely solely on the presence of a single family member in another EU Member State to justify the transfer decision. It added that the national authorities must conduct a thorough examination of the best interests of the child in every case, taking into consideration the statements of the child. Moreover, the principle of mutual trust provides that the other Member State concerned in the decision will conduct an examination of whether the family member is able to take care of the unaccompanied child.

Many thanks to Germa Lourens, Project manager Dublin Support for Guardians, Nidos, for providing the EWLU team with this information. Based on an unofficial translation by the EWLU team. Photo: Clive Varley, May 2018, Flickr (CC)

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