CJEU: National law may oblige a Member State to examine an asylum claim on the basis of its discretionary power if this is in the best interests of the child
On the 16th of February 2023, the Court of Justice of the European Union (CJEU) delivered its preliminary ruling in the case Staatssecretaris van Justitie en Veiligheid, C-745/21. The case concerned a Syrian woman who applied for asylum in the Netherlands after which she married a third-country national which resides legally in the Netherlands. The authorities did not process the application as Lithuania was allegedly responsible and it accepted the Dutch take back request. The applicant gave birth to her husband's daughter of which she was pregnant before the application, hence she appealed against the rejection involving the best interests of the unborn child. The referring Court noted that national law regards the child of the pregnant applicant as born when it is in the best interests of that child. Subsequently, the Court submitted preliminary questions regarding the Dublin Regulation.
The CJEU first found that Article 16 (1) of the Dublin III Regulation must be interpreted as not applying where there is a dependency link either between an applicant for international protection and that applicant's spouse who is legally resident in the Member State in which the application for such protection was lodged, or between the unborn child of that applicant and that spouse who is also the father of that child.
Second, the CJEU decided to reformulate the question of the referring Court as whether Article 17(1) of the Dublin III precludes national legislation obliging authorities to assess an asylum application of a pregnant applicant solely on the basis of the best interests of the child, even if other criteria indicate responsibility of a different Member State. The CJEU ruled that Article 17 does not prohibit such legislation, but that the national court should assess whether the Netherlands breached their legislation by rejecting the application for international protection lodged by the applicant, even though she was pregnant at the time that application was lodged.
Source: ELENA Weekly Legal Update of 17 February 2023
Decision in Dutch
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