MA and others v SSHD, CJEU, 21.2.13, Advocate-General’s Opinion

All or almost all local authorities will have responsibility for a number of asylum-seeking children. Some of these arrived in the UK after passing through safe third countries, and so can, either now or later, be removed to that third country rather than be supported in the UK.

There is currently a reference from the UK working its way through the ECJ on the issue of whether children in this position can be removed to safe third countries pursuant to Dublin II immediately, or only after they turn 18. The case was referred to the ECJ by the Court of Appeal in MA, BT and DA v SSHD. On 21 February 2013 Adv-Gen Cruz Villalón of the CJEU issued his Opinion, finding that the Member State responsible for determining the application for asylum of a child must, in principle, have regard to the minor’s best interests, and unless those interests require otherwise, the responsible Member State must be the one where the most recent application was lodged.

COMMENT: If the CJEU adopts the views of the Advocate General (which it usually does), then this effectively excludes children from Dublin II, thus carving quite a large hole in the Dublin II regime.