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European Court of Justice: Stop sending separated children across Europe

6 June 2013

The Court of Justice of the European Union delivered an important judgment regarding separated children on 6 June 2013. If the separated child has previously applied for asylum in another EU Member State, the child may not be sent back to this State. This is a very positive development with regard to the best interest of the child as a leading principle.

The case before the ECJ was about three separated children from Eritrea and Iraq who applied for asylum in the United Kingdom. Two of them had earlier applied for asylum in Italy, the third in the Netherlands. On the basis of the Dublin II Regulation, countries may return asylum seekers to another country if they have previously applied for asylum there. For separated children, article 6 of the Regulation states that they may be sent to another country if a family member is legally residing there. The three children in this case however did not have any family in Europe. The second paragraph of article 6 then provides that the country where the child has filed his asylum application is responsible for the child. The British court however found that this did not make clear which country is responsible: the country where the child currently resides or the country where the first asylum application was filed.

Best interest of the child

The European Court in its judgment refers to article 24 of the Charter of Fundamental Rights of the European Union, which provides that the best interest of the child must be a primary consideration in all actions and decisions relating to children. Because separated children are a particularly vulnerable category, the Court finds that it is important not to prolong their procedure more than strictly necessary, which means that, as a rule, separated children should not be transferred to another country. 

The Court does make one exception, namely when a final decision has been taken already in the asylum procedure in the other country. In such cases, the next country where the child applies for asylum is not obliged to reassess the facts. 

Separated Children in Europe Programme (SCEP) - coordinated by Defence for Children The Netherlands - PO BOX 11103 - 2301 EC - Leiden - 0031 (0)71 516 09 80 - info@scepnetwork.org