The case concerned three unaccompanied minors from the Russian republic of Chechnya and have Russian nationality whose third asylum application was rejected by the State Secretary and stated for the first 2 applicants that the decision also is to be considered a return decision while for the 3rd applicant who was still a minor, it stated that the negative decision does not constitute a return decision because it first has to investigate into the availability of adequate reception facilities in the country of return. In appeal submitted by the applicants, the Court of the Hague annulled the contested decisions and ordered the State Secretary to re-examine the applications. The State Secretary appealed before the Council of State.

The Council of State reiterated the findings in the TQ judgement as well as in two other similar cases concerning unaccompanied minors from Morocco and Guinea. It stated that according to Article 24(3) of the recast Reception Conditions Directive, the State Secretary must start tracing family members of the unaccompanied minor as soon as possible after an application for international protection has been submitted. In doing so, the State Secretary must ensure that the safety of close relatives and the unaccompanied minor is not endangered.

According to the Council of State, the State Secretary can disapply Article 15 and not take simultaneously a negative decision on asylum and a return decision when further investigation is needed on the availability of reception facilities for unaccompanied minors in the return country, as this was the case for applicant 3. However, the State Secretary failed to explain and reason in its decision for the delay in the investigation into adequate reception conditions in the country of return and the State Secretary must make a new decision on the application and still investigate whether there are adequate reception facilities. Even if the third country national 3 becomes of age in the meantime before the abovementioned investigation has been completed, it must be investigated whether the applicant is still eligible for a (continued) right of residence on regular grounds. Moreover, the Council of State ruled that the State Secretary cannot suffice with merely determining the possible age of majority and taking a return decision.

As for the applicants 1 and 2, the Council of State found that the State Secretary did not explain in the asylum decision for applicants 1 and 2 that the specific investigation into reception conditions in the country of return cannot take place during the assessment on merits on the asylum claim and took the decision not to apply that policy because the applicants became of age.

The Council of State mentioned that although the State Secretary can no longer obliged to investigate whether adequate reception is available in the country of return as soon as an unaccompanied minor applicant comes of age, it is important to note that the applicants 1 and 2 were minors at the time of their asylum applications and that it took a year and ten months to take a decision asylum application. In such circumstances, the State Secretary cannot refrain from conducting an investigation until they have reached the age of majority, at least the State Secretary has to clarify in its decisions on reasons for not completing it at that time.

The appeal of the State Secretary was rejected.