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Dublin II does not apply to separated children

Dublin II does not apply to separated children

european-flag2Confirming the earlier Opinion in the same case the Court of Justice of the European Union has today held in MA and Others v UK (Case C‑648/11), in effect, that the Dublin II regulation does not apply to separated children who have claimed asylum. The key conclusion is as follows:

…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’

‘Dublin II’ is the informal name for 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. This is the legal mechanism by which an asylum claimant is returned from the UK (or another EU state) to the first EU country in which that person claimed asylum within the EU or was first identified and fingerprinted.

The Court reaches its conclusion partly on the basis of the precise wording of the regulation and partly on the need to take into account the best interests of a child.

This is a further blow to the current Dublin II mechanism, following on from the suspension of all returns to Greece because of almost total collapse of the Greek asylum system. The effect of this new judgment in MA and Others is that any child who has entered the UK through another EU state cannot now be removed to that EU state.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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