Case C‑648/11

The Queen, on the application of MA and Others

v

Secretary of State for the Home Department

(Request for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division))

(Regulation (EC) No 343/2003 — Determining the Member State responsible — Unaccompanied minor — Successive applications for asylum lodged in two Member States — Absence of a member of the family of the minor in the territory of a Member State — Second paragraph of Article 6 of Regulation No 343/2003 — Transfer of the minor to the Member State in which he lodged his first application — Compatibility — Child’s best interests — Article 24(2) of the Charter)

Summary — Judgment of the Court (Fourth Chamber), 6 June 2013

1.        Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Questions which are manifestly irrelevant, hypothetical questions put in a context precluding a useful answer and questions bearing no relation to the purpose of the main proceedings — Scope — Relevance of the questions referred to the outcome of an action for damages linked to the main proceedings — Included

(Art. 267 TFEU)

2.        Border controls, asylum and immigration — Asylum policy — Criteria and mechanisms for determining the Member State responsible for examining an asylum application — Regulation No 343/2003 — Unaccompanied minor — Applications for asylum lodged successively in two Member States — Taking into account of the child’s best interests — Responsibility of the Member State in which the minor is physically present after lodging his application

(Charter of Fundamental Rights of the European Union, Art. 24 ; Council Regulation No 343/2003, Art. 6, second para.)

1.        See the text of the decision.

(see paras 37-40)

2.        The second paragraph of Article 6 of Regulation No 343/2003 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 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’.

In that regard, the expression, ‘the Member State … where the minor has lodged his or her application for asylum’, which appears in that provision, cannot be construed as meaning the first Member State where the minor has lodged his or her application for asylum. 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, and to ensure that unaccompanied minors have prompt access to the procedures for determining refugee status. Consequently, although express mention of the best interest of the minor is made only in the first paragraph of Article 6 of that regulation, the effect of Article 24(2) of the Charter of Fundamental Rights, in conjunction with Article 51(1) thereof, is that the child’s best interests must also be a primary consideration in all decisions adopted by the Member States on the basis of the second paragraph of Article 6. It follows from this that unaccompanied minors who have lodged an asylum application in one Member State must not, as a rule, be transferred to another Member State with which they lodged the first asylum application.

(see paras 53, 55, 59, 61, 66, operative part)