The EU asylum law provides for a mechanism, usually referred to as the Dublin procedure, to determine which EU member state is responsible for examining an application for international protection. The Dublin III Regulation (Regulation (EU) No. 604/2013), applies to 32 countries which include the 28 EU member states, Iceland, Liechtenstein, Norway and Switzerland.
Article 6 of the Regulation, which deals with children, requires that primary consideration be given to the best interests of the child. Unaccompanied children must be assisted by a representative who has the necessary qualifications and expertise to promote those best interests at each step of the Dublin procedure.
The Regulation also states that only one country can be responsible for considering the request for international protection. There are several reasons why a particular EU member state may be responsible for examining an application for international protection, e.g. the presence of a family member or relative in that country, the person having been issued a visa or a residence permit there, or whether the person had travelled through another Dublin III country by regular or irregular means.
The relevance of having knowledge of the Regulation is the guardian’s pedagogic tasks that follow from it. The best interest of the child is a decisive criterion. So the point to be taken into consideration is whether the child’s development will be positively stimulated by a transfer to another EU member state where a family member or relative is residing. The guardian must therefore cooperate transnationally in order to gain insights into the situation of the family member or relative in the other EU member state.
For many reasons, unaccompanied children can end up in one EU member state, while their family ends up in another. The Dublin III Regulation offers the possibility to reunite the child with their family in these situations. Under Dublin III, the child can be reunited with parents, as well as brothers or sisters, uncles and aunts, grandparents or any adult that may have taken care of the child in the country of origin. The priority is to place unaccompanied children in the same member state as a family member or relative, provided it is in the best interest of the child.
First of all, the Regulation gives the responsibility to proceed with the request for international protection to the member state where unaccompanied children have a ‘family member’ (defined as a parent, spouse or child) or a ‘sibling’ who is ‘legally present’ in the country. This state has an obligation to take the responsibility for examining an application of an unaccompanied child. Secondly, it gives the responsibility to proceed with the asylum application to the member state in which the unaccompanied child has a ‘relative’ (defined as an adult aunt, uncle or grandparent) who is ‘legally present’ there. In this case, there are further conditions: there must be a separate investigation to check that the relative is able to take care of the child, and the allocation of responsibility must be in the best interests of the child.
Once it is clear that the asylum seeker is an unaccompanied child who has family or relatives as defined by the EU rules in a particular member state, the child must be transferred to that member state to apply for international protection there. The unaccompanied child should provide the state authorities with all the information they have about the presence of any family members or relatives in any Dublin country.
Means of proof in the case of the presence of a family member or relative (father, mother, child, sibling, aunt, uncle, grandparent, adult responsible for a child, guardian) of an unaccompanied child are:
- residence permits issued to the family member;
- evidence that the person is related, if available;
- failing this, and if necessary, a DNA or blood test;
- verifiable information from the applicant;
- statements by the family members concerned;
- reports/confirmation of the information by an international organisation (UNHCR).
It is important that the unaccompanied child tells the state authorities as soon as possible if they think that their mother, father, brother or sister, aunt, uncle, grandmother or grandfather could be present in one of the Dublin countries and, if so, whether or not they want to live with them.
Best interest of the child
The best interests of children should be respected. In the absence of a family member or relative, an unaccompanied child – unlike any other asylum seeker – in effect has a choice of which member state to apply to. The CJEU (Court of Justice of the EU) has confirmed (in the case of MA) that this is the case even after the child has already applied in another member state.
Principle of non-transfer of children
Moving unaccompanied children from one country to another has a negative impact on their well-being. Transfer or threat of transfer may lead to their disappearance. The country responsible for examining the asylum request of a child should therefore be the one where the most recent application has been made, in order to avoid unnecessary movement, except when the transfer aims to reunite families or is in the best interest of the child. Children should not be separated from family members, including brothers or sisters who are already in the EU. Member states should have the obligation to trace family members residing in the EU.
Length of the procedure
If the member state where an asylum application is lodged considers another country to be responsible for examining the application, it requests that country to accept responsibility within three months of the date of submission of the asylum application. The state to which the request is sent must answer within two months after receipt of the request. Not replying within the required timeframe means that this state has accepted responsibility for the application. The transfer will take place within six months of the moment at which the other country accepted responsibility for the asylum application.
The Finnish Immigration Service provides information on the Dublin procedure (in Finnish). Information on the guardian’s role in the procedure can be found in the Handbook for Guardians published by the Finnish Immigration Service (in Finnish).
Information on Dublin procedures provided by the Greek Asylum Service (in Greek) can be found here. Information on METAdrasi’s Guardianship Network for Unaccompanied Minors and the role of the Members of the Guardianship Network (in English) can be found here .
Training and tools
Checklist: Additional possible actions by the guardian or; in his or her absence; by the legal representative in relation to Dublin procedures:
- Review the relevant documents contained in the child’s asylum file;
- Check to ensure that the asylum authorities are respecting all Dublin Regulation safeguards to protect unaccompanied children;
- Advocate for decisions guided by considerations relating to family unity; the child’s well-being and social development and the child’s safety as well as by the views of the child;
- Ensure that the child is appropriately informed and facilitate child participation;
- Facilitate contacts with family members; when requested by the child;
- Advocate against deprivation of liberty and request reception arrangements which are safe and take into account the specific needs of the child;
- Advocate for transfers to other EU Member States to be carried out in a child-friendly manner and accompany the child when circumstances require or advocate for a transfer taking place only when this is in the best interests of the child.
The project ‘Dublin Support for Guardians’ was implemented by Nidos in 2013-2014 in cooperation with Caritas International and France Terre d’Asile with financial support from the European Refugee Fund. The aim was to offer guidance to guardians in the EU with respect to the Dublin III Regulation. The final report from this project can be found here. As part of the project, Nidos set up a helpdesk to assist guardians with Dublin cases of unaccompanied children. This assistance – based on years of experience – concerns several elements of reunification under Dublin:
- Making the best interests of the child concrete;
- Aid with gaining insight into the factors that are important in a reunification process;
- Providing contact details;
- Information about the process in any EU country;
- Positioning of the guardian in the Dublin legal procedures.