W.W.F., a 15-year-old Syrian national, had applied for international protection in Romania. He was detained by the Foreign Police Unit of the Bratislava Police Force on 16 June 2023 at a road standpoint near Nitra, Slovakia, following the inspection of a truck suspected to carry third-country nationals. W. W.F contested the detention decision before the Administrative Court in Košice. The court appointed a procedural guardian for W.W.F. during the appeal procedure.

The administrative file presented by the Foreign Police stated that the minor was accompanied by his older brother, who is named in the files as the child’s “legal representative”. The file also states that the child admitted to have applied for asylum in Romania, and to be directed towards Germany. The Foreign Police, having verified the Schengen Information System, issued a detention decision for the purpose of ensuring the preparation of a transfer to Romania, citing a significant risk of absconding due to the fact that the applicant had previously left Romania before the conclusion of his asylum procedure.

W.W.F. claimed that the Foreign Police did not take into consideration the best interests of the child in its decision, and emphasized that as a minor, he is to be considered a vulnerable person and that international standards and jurisprudence related to the legal protection of children have established that the risk of absconding could not be attributed to minor children. The applicant also claimed that alternatives to detention were not properly examined, as he could have been placed in an asylum facility for families and children. Additionally, the applicant claimed that a legal guardian was not lawfully appointed, since his brother was not designated as his legal guardian by a court order as required by Slovak legislation. The applicant also requested that his brother’s detention be revised as well, in order to protect family unity.

The Foreign Police claimed that it had considered the best interests of the child in its detention order in line with Article 3 of the Convention on the Rights of the Child, by ensuring that children are not separated from their parents. The Foreign Police argued that it had acted in accordance with the law with regard to legal guardianship, as it had contacted the competent employment, social affairs and family office. The Foreign Police requested the dismissal of the appeal and that the applicant be kept in detention.

The Administrative Court in Košice stated that, in line with Slovak legislation, only parents or court-appointed guardians can be considered as legal guardians for minors. The court determined that there had been a serious procedural misconduct by the Bratislava Labour, Social Affairs and Family Office, who did not apply for a court decision to appoint a legal guardian, and that overlooking this misconduct would amount to an infringement of the Convention on the Rights of the Child. The court stated that a legal guardian had not been lawfully appointed, and declared that the Foreign Police’s decision to consider the applicant’s brother as his legal representative was arbitrary. The court noted that the Foreign Police had failed to comply with its obligation to ensure the rights of the child are not jeopardised or violated, and emphasized that the applicant’s brother could not be considered his parent, thus the detention decision could not be justified by reasons of not separating children from their parents.

The court also noted that, because the applicant is a minor without a legal guardian, provisions related to detention in preparation for transfer to another EU Member State are not applicable. The court also questioned the grounds for detention in the applicant’s case in accordance with Article 28 of the Dublin III Regulation, noting that the initiation of asylum procedures in another Member State does not automatically constitute grounds for detention.

The Administrative Court in Košice ruled in favour of the applicant and annulled the detention decision.