The Dublin Regulation, mutual trust and fundamental rights: No exceptionality for children?

• Published date: 01 July 2022
• Author: Ciara Smyth
• Date: 01 July 2022
• DOI: http://doi.org/10.1111/eulj.12469

KALEIDOSCOPE

The Dublin Regulation, mutual trust and

fundamental rights: No exceptionality for

children?

Ciara Smyth

*

Abstract

Mutual trust in the Dublin III Regulation is justified by the assumption that all Member States

respect the fundamental rights of asylum seekers and that it is therefore immaterial which Member

State processes any given claim. This justification has been questioned in light of the treatment of

asylum seekers in some Member States. Nonetheless, in order to circumvent a Dublin transfer on

fundamental rights grounds, the Court of Justice of the EU has held that the risked violation must

meet the threshold for inhuman or degrading treatment in Article 4 of the Charter. Recently, the

Court rejected the proposition that another Charter right—the principle of the best interests of the

child—could block Dublin transfers of families with children. Through a child-rights analysis of the

jurisprudence, this article explores the idea of exceptionality for children, concluding that there is

potential for the best interests principle to trump mutual trust.

1|INTRODUCTION

The Dublin III Regulation establishes a hierarchy of criteria for allocating responsibility for a given asylum claim to a

single EU Member State, usually the one that allowed the applicant to enter the territory of the Union.

1

If a third

* Assistant Professor, School of Law and Irish Centre for Human Rights, University of Galway. Email: ciara.m.smyth@nuigalway.ie.

1

Regulation (EU) No 604/2013 of the European Parliament andof the Council of 26 June 2013

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 (recast), OJ L 180/31. There are effectively nine criteria of which five allocate

responsibility to the Member State where family members are located (Articles 8–11 and 16) and four to the Member State at fault for allowing the

applicant to enter the territory of the EU (Articles 12–15). According to Eurostat, in 2021 11% of incoming ‘take charge’requests (i.e., requests received by

the Member State considered responsible under the criteria from the Member State in which the application for international protection was lodged) and

12.9% of outgoing ‘take charge’requests (i.e., requests from the Member State in which the application for international protection was lodged to the

Member State considered responsible under the criteria) were made on the basis of family reasons. Adjusting for requests on the basis of humanitarian

reasons (3.9% and 7.5%, respectively), this means that approximately 80% of requests were made on the basis of the fault criteria. Statistics available at

https://ec.europa.eu/eurostat/statistics-explained/index.php?oldid=473443#Dublin_requests.

Received: 20 January 2022 Revised: 11 June 2023 Accepted: 12 June 2023

DOI: 10.1111/eulj.12469

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2023 The Author. European Law Journal published by John Wiley & Sons Ltd.

242 Eur Law J. 2022;28:242–262.

wileyonlinelibrary.com/journal/eulj

country national moves on irregularly and makes an asylum application in another Member State, s/he will be ret-

urned to the responsible State. The Regulation aims to tackle the twin phenomena of ‘refugees in orbit’and ‘forum

shopping’and to allow for the expeditious processing of asylum claims, even if it is officially acknowledged that

these aims are not being realised.

2

Dublin III is premised on mutual trust: the assumption that since all EU Member

States are bound by the Common European Asylum System (CEAS), which comprises standards on reception, qualifi-

cation and procedures; the 1951 Convention relating to the Status of Refugees

3

; and the Charter of Fundamental

Rights of the EU,

4

the transferring Member State is entitled to presume that an asylum seeker will be properly

treated in the responsible Member State. According to the regulation and the jurisprudence of the Court of Justice

of the EU (CJEU), this presumption can be rebutted if the asylum seeker can make out that the Dublin transfer would

result in a real risk of inhuman or degrading treatment contrary to Article 4 of the Charter.

5

Put differently, there is a

conclusive presumption of safety as regards fundamental rights violations that do not meet this threshold. The pro-

priety of this presumption of safety has long been challenged in the case-law (albeit unsuccessfully so far)

6

and in

the literature.

7

The key issues are that the presumption flies in the face of definitively established facts about dispa-

rate (and sometimes desperate) reception and processing conditions in different Member States—the CEAS and

Charter commitments notwithstanding—and that fundamental rights, including the right to asylum in Article 18 of

the Charter, are sacrificed on the altar of mutual trust.

This contribution takes up this discussion but from a novel—and underexplored—perspective. It examines

whether another Charter right, the principle of the best interests of the child in Article 24(2), is subject to the same

conclusive presumption. That provision, which is derived from Article 3(1) of the UN Convention on the Rights of

the Child (CRC),

8

provides that ‘In all actions relating to children, whether taken by public authorities or private insti-

tutions, the child's best interests must be a primary consideration.’

9

In the Dublin context, the principle is perhaps

best known for having been integrated into the criteria that apply to unaccompanied minors.

10

However, it is also

stated in Article 6, a horizontal provision of the Dublin III Regulation which requires the best interests of the child to

be considered in ‘all procedures provided for in this Regulation’, and is referred to in Article 20(3), the specific provi-

sion of the regulation dealing with accompanied minors.

11

In broad terms, the best interests principle obliges

decision-makers to interrogate how decisions involving a child affect him or her and to prioritise the option that best

protects relevant rights of the child. As a rights-based concept, it includes but is significantly broader in scope than

2

See Explanatory Memorandum, Proposal for a Regulation of the European Parliament and of the Council on Asylum and Migration Management and

Amending Council Directive (EC) 2003/109 and the Proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund], COM(2020) 610 final.

3

Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137.

4

OJ C 326, 391–407.

5

It should be noted that it is possible to challenge a Dublin transfer on the grounds that an incorrect criterion (or associated provision) has been applied to

the applicant. See Case C-63/15, Ghezelbash [2016] ECLI:EU:C:2016:409 and Case C-155/15, Karim [2016] ECLI:EU:C:2016:410. Indeed, technical

grounds for contesting a Dublin transfer may hold out more promise than fundamental rights in challenging Dublin transfers. See D. Thym, ‘Judicial

Maintenance of the Sputtering Dublin System on Asylum Jurisdiction: Jafari,A.S., Mengesteab and Shiri’, (2018) 55 Common Market Law Review, 549; and

M. Den Heijer, ‘Remedies in the Dublin Regulation: Ghezelbash and Karim’, (2017) 54 Common Market Law Review, 859.

6

For example, Joined Cases C-411/10 and C-493/10, N.S. and M.E [2011] ECLI:EU:C:2011:865; Case C-394/12, Abdullahi [2013] ECLI:EU:C:2013:813;

Joined Cases C-297/17, C-318/17, C-319/17 and C-438/17, Ibrahim [2019] ECLI:EU:C:2019:219; Case C-490/16, A.S. [2017] ECLI:CU:C:2017:585 and

Case C-646/16, Jafari [2017] ECLI:EU:C:2017:586; and Case C-483/20, XXXX [2022] ECLI:EU:C:2022:103.

7

For a cross-section of the literature, see V. Moreno-Lax, ‘Mutual (Dis-)trust in EU Migration and Asylum Law’, in S. Iglesias Sánchez and M. González.

Pascual (eds.), Fundamental Rights in the EU Area of Freedom, Security and Justice (Cambridge University Press, 2021), at 77; G. Anagnostaras, ‘The Common

European Asylum System: Balancing Mutual Trust against Fundamental Rights Protection’, (2020) 21 German Law Journal, 1180; Sílvia Morgades-Gil, ‘The

“Internal”Dimension of the Safe Country Concept: the Interpretation of the Safe Third Country Concept in the Dublin System by International and Internal

Courts’, (2020) 22 European Journal of Migration and Law, 82; Ermioni Xanthopoulou, ‘Mutual Trust and Rights in EU Criminal and Asylum Law: Three

Phases of Evolution and the Uncharted Territory beyond Blind Trust’, (2018) 55 Common Market Law Review, 489; M. Den Heijer, J. Rijpma and

T. Spikerboer, ‘Coercion, Prohibition and Great Expectations: The Continuing Failure of the Common European Asylum System’, (2016) 53 Common Market

Law Review, 607.

8

Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC).

9

Explanations Relating to the Charter of Fundamental Rights, 2007/C 303/02.

10

Article 8 establishes that the Member State responsible for the application of an unaccompanied minoris that where a family member, sibling or relative

is legally present, provided that it is in the best interests of the minor.

11

Emphasis added. Furthermore, Recital 13 of the Dublin Regulation provides that ‘[i]n accordance with the 1989 United Nations Convention on the

Rights of the Child and with the Charter of FundamentalRights of the European Union, the best interests of the child should be a primary consideration of

Member States when applying this Regulation.’

SMYTH 243