PURPOSE: to amend Regulation (EU) No 604/2013 as
regards determining the Member State responsible for examining the
application for international protection of unaccompanied minors
with no family member, sibling or relative legally present in a
Member State.
PROPOSED ACT: Regulation of the European Parliament
and of the Council.
ROLE OF THE EUROPEAN PARLIAMENT: the European
Parliament decides in accordance with the ordinary legislative
procedure and on an equal footing with the Council.
BACKGROUND: during the negotiations on Regulation (EU) No 604/2013
of the European Parliament and of the Council establishing the
criteria and mechanisms for
determining the Member State responsible for examining
an application for international protection lodged in one of the
Member States by a third-country national or a stateless
person (the Dublin III Regulation), the
co-legislators agreed to leave the issue of unaccompanied minors
who are applicants for international protection in the European
Union and who have no family member, a sibling or a relative
present in the territory of the Member States open and the related
provision - Article 8(4) essentially unchanged.
They made a Declaration, attached to the Regulation,
with the following content: "The Council and the European
Parliament invite the Commission to consider, without prejudice to
its right of initiative, a revision of Article 8(4) of the Recast
of the Dublin Regulation once the Court of Justice rules on case
C-648/11 MA and Others vs. Secretary of State for the Home
Department and at the latest by the time limits set in Article 46
of the Dublin Regulation. The European Parliament and the Council
will then both exercise their legislative competences, taking into
account the best interests of the child."
The Commission agreed with the proposed
approach.
At the same time, on 6 June 2013, the Court of Justice
of the European Union delivered its judgment in the case C-648/11,
ruling that Council Regulation (EC) No
343/2003 (Dublin II) must be interpreted as
meaning that, in circumstances such as those of the main
proceedings, where an unaccompanied minor with no member of his
family legally present in the territory of a Member State has
lodged asylum applications in more than one Member State, the
Member State in which that minor is present after having lodged
an asylum application there is to be designated the Member
State responsible.
Therefore, the Commission presents this proposal
aiming to address the current ambiguity of the provision on
unaccompanied minors who have no family, siblings or relatives on
the territory of the Member States, by providing legal certainty
in respect of responsibility for examining the application for
international protection in such cases.
CONTENT: the present proposal addresses the issue of
responsibility for examining the asylum application of an
unaccompanied minor with no family, siblings or relatives on EU
territory.
The proposed provision covers the two possible
cases of unaccompanied minors found in such a
situation:
- First case: Paragraph 4a covers the situation
where an unaccompanied minor with no family, sibling or
relatives on EU territory and who lodged multiple asylum
applications, including in the Member State where he or she is
currently present.
In this case, responsibility belongs to the Member
State where the minor lodged an application and is currently
present. The purpose of this rule is to ensure that the
procedure for determining the Member State responsible is not
unnecessarily prolonged, and that unaccompanied minors have prompt
access to the procedures for determining international protection
status. The reference to the minor's best interests is introduced
in order to allow exceptions from this rule in cases where
individual circumstances might indicate that remaining in the
territory of the Member State where he or she is present
right jeopardize the minor's best interests.
- Second case: Paragraph 4b addresses the
situation where a minor who is an applicant for international
protection is present in the territory of a Member State without
having lodged an application there. The Member State should provide
the minor with the opportunity to lodge an application there, after
having informed him or her of such a right and its
implications.
The minor has therefore two options:
- either to apply for international protection in that
Member State,
- or not to apply.
- Where an application is lodged with the
authorities of that Member State, the circumstances of
paragraph 4a apply, i.e. that Member State becomes responsible
for examining that application. Thus, the minor will remain in
the Member State where he/she is present and have his or her
application examined there, provided that this corresponds to the
minor's best interests.
- The alternative is that the minor should be
transferred to the Member State which the consideration of the
minor's best interests indicates as most suitable (which can
include, though it cannot be limited to, the fact that a procedure
for examining the application for international protection might be
on-going or closed with a final decision, etc.).
- The case of a minor who decides not to lodge a
new application in the Member State where he/she is present,
the Member State responsible should be the one where the minor has
lodged his or her most recent application. This rule aims to ensure
that there is certainty in establishing the Member State
responsible, by introducing a rule that is certain and predictable.
The reference to the minor's best interests is added in order to
ensure, as in paragraph 4a, that transfers contrary to his or her
best interests are avoided.
Minors best interest: Paragraph 4c aims at ensuring that the assessment of
the minor's best interests is made in cooperation between the
requested and the requesting Member States, in order to establish
in common the Member State responsible for the minor and avoid
conflicts of interest.
Cooperation between Member States: Paragraph 4d provides a rule allowing Member States
to inform each other of a newly assumed responsibility. This allows
the Member State previously responsible for carrying out a 'Dublin
procedure' to close the case in its internal administration. This
is particularly relevant in order to avoid situations of abuse of
the system, where the minor moves on to another Member State for no
other reason than to prolong his or her stay on EU
territory.