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Unaccompanied children win against the Secretary of State before CJEU

In MA, BT and DA v SSHD, case C‑648/11, CJEU considered the duty of the Member States in relation to minor children who made an asylum claim in more than one country and found that it is the country of the last claim that is responsible for the decision making in the light of its duty to ensure protection and welfare of the children.

The appellants in this consolidated appeal were unaccompanied minors, two of them from Eritrea and one from Iraq, who prior to arrival in the UK, had made an application for asylum in another Member State.

An established principle in EU law makes the government of the state where the first asylum claim was raised responsible for considering the application. This principle came into conflict with the legislation protecting welfare of children and requiring authorities to give primary consideration to the best interests of the child.

In the UK, the duty of immigration authorities to safeguard interests of children is incorporated into the statute under s. 55 of the Borders, Citizenship and Immigration Act 2009, which is usually read in conjunction with a substantive body of case law.

In this case s. 55 was not considered a bar to removal and the matter was referred to the Court of Justice of the European Union for a preliminary ruling on the question as to which Member State was responsible for assessing the asylum claim.

The Court referred itself to Article 24 of the Charter of Fundamental Rights of the European Union which provides that ‘In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.’

The judgment reads: “Since unaccompanied minors form a category of particularly vulnerable persons, it is important not to prolong more than is strictly necessary the procedure for determining the Member State responsible, which means that, as a rule, unaccompanied minors should not be transferred to another Member State.”

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