Explanatory Memorandum to COM(2014)382 - Determination of the Member State responsible for examining the application for international protection of unaccompanied minors with no family member, etc. in a Member State - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2014)382 - Determination of the Member State responsible for examining the application for international protection of unaccompanied ... |
|---|---|
| source | COM(2014)382  |
| date | 26-06-2014 |
· Grounds for the proposal
This proposal is an amendment of Article 8, paragraph 4 of 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[1] (hereafter: the Dublin III Regulation).
During the negotiations on 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 i - essentially unchanged (i.e. reflecting the text of Article 6, second paragraph, of Council Regulation (EC) No 343/2003/EC of 18 February 2003 on 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 (hereafter: the Dublin Regulation)[2] and to make 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 i 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, in a spirit of compromise and in order to ensure the immediate adoption of the proposal, accepts to consider this invitation, which it understands as being limited to these specific circumstances and not creating a precedent."
On 6 June 2013, the Court of Justice of the European Union delivered its judgment in the case C-648/11, ruling that:
"The second paragraph of Article 6 of 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 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".
· Objectives of the proposal
This proposal takes highest account of the Court of Justice's ruling in case C-648/11. It is aimed at addressing 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.
Contents
- RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
- LEGAL ELEMENTS OF THE PROPOSAL
- The Commission agreed, through the same Declaration, with the suggested approach:
- On 6 June 2013, the Court of Justice of the European Union delivered its judgment in the case C-648/11, ruling that:
- In parallel to the association of several non-EU Member States to the Schengen acquis, the Community concluded several agreements associating these countries also to the Dublin/Eurodac acquis:
Specific consultations and impact assessments in preparation of the current proposal were not necessary since this narrowly targeted proposal constitutes a follow-up to the comprehensive consultation and impact assessments already undertaken by the Commission in preparation of its proposal COM(2008)820 final to recast Council Regulation (EC) No 343/2003/EC. Therefore, the consultations carried out by the Commission in preparation of that proposal apply to the present proposal.
The Commission considers that the proposal to amend Article 8 i should be put forward as soon as possible, in order to ensure legal certainty as regards the provisions on unaccompanied minors in the Dublin procedure. Moreover, it is indispensable to have a final version of this Article before proceeding to providing supplementary rules on unaccompanied minors on the basis of Article 290 of the Treaty of the Functioning of the European Union.
· Summary of the proposed action
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:
Paragraph 4a covers the situation similar to that described in case C-648/11, i.e. 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, the Member State responsible is established according to the Court of Justice's judgment, i.e. 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 might jeopardize the minor's best interests.
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 proposal is that 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 is not addressed by case C-648/11. However, this situation needs to be covered in the Regulation, in order to avoid loopholes in the responsibility criteria. The solution proposed is that 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.
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.
The guarantees for minors provided in Article 6 of Regulation 604/2013 apply to all minors that are subject to the procedures of this Regulation. Therefore, an explicit reference to the provisions of Article 6 in respect of unaccompanied minors found in one of the situations described in Article 8 i was not considered necessary.
Paragraph 4d does not contain a criterion for establishing responsibility, but 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. The provision is similar to that in Article 17(1)(2) of Regulation 604/2013, where the same information rule is introduced in respect of the sovereignty clause.
· Variable geometry
This proposal amends Regulation (EU) No 604/2013 and uses the same legal base as that act, namely Article 78, second paragraph, point (e) of the Treaty on the Functioning of the European Union.
Title V of the TFEU is not applicable to the United Kingdom and Ireland, unless those two countries decide otherwise, in accordance with the provisions set out in the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on the European Union (TEU) and to the TFEU.
The United Kingdom and Ireland are bound by Regulation 604/2013, following their notice of their wish to take part in the adoption and application of that Regulation based on the above-mentioned Protocol. The position of these Member States with regard to Regulation 604/2013 does not affect their possible participation with regard to the amended Regulation.
Under the Protocol on the position of Denmark, annexed to the TEU and the TFEU, Denmark does not take part in the adoption by the Council of the measures pursuant to Title V of the TFEU (with the exception of 'measures determining the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States, or measures relating to a uniform format for visas'). However, given that Denmark applies the current Dublin Regulation, on the basis of an international agreement that it concluded with the EC in 2006[3], it shall, in accordance with Article 3 of that agreement, notify the Commission of its decision whether or not to implement the content of the amended Regulation.
· Impact of the proposal on non EU Member States associated to the Dublin system
In parallel to the association of several non-EU Member States to the Schengen acquis, the Community concluded several agreements associating these countries also to the Dublin/Eurodac acquis:
– the agreement associating Iceland and Norway, concluded in 2001 i;
– the agreement associating Switzerland, concluded on 28 February 2008[5];
– the protocol associating Liechtenstein, signed on 28 February 2008[6].
In order to create rights and obligations between Denmark – which as explained above has been associated to the Dublin/Eurodac acquis via an international agreement – and the associated countries mentioned above, two other instruments have been concluded between the Community and the associated countries[7].
In accordance with the three above-cited agreements, the associated countries shall accept the Dublin/Eurodac acquis and its development without exception. They do not take part in the adoption of any acts amending or building upon the Dublin acquis (including therefore this proposal) but have to notify to the Commission within a given time-frame of their decision whether or not to accept the content of that act, once approved by the Council and the European Parliament. In case Norway, Iceland, Switzerland or Liechtenstein do not accept an act amending or building upon the Dublin/Eurodac acquis, the 'guillotine' clause is applied and the respective agreements will be terminated, unless the Joint/Mixed Committee established by the agreements decides otherwise by unanimity.