A Tunisian family consisting of parents and their four minor children applied for international protection in the Netherlands, citing threats from the father’s brother-in-law against the family, including the attempted kidnapping of their eldest child. Furthermore, they alleged a lack of available state protection due to the brother in law’s influence in Tunisia. On 21 May 2024, the Minister of Asylum and Migration, deemed their account to be only partially credible and rejected their applications, noting that Tunisia was considered a safe country of origin. During the proceedings, only the parents were interviewed, while the four children (aged 13, 11, 4 and 1 years old at the time of the interview) were not heard by the minister.

The applicants appealed before the District Court of the Hague seated in Amsterdam. On 18 July 2024, the district court annulled the decisions as it considered that the minister’s decision making about the children was negligent as the two eldest children were not invited to be heard. The minister appealed this decision before the Council of State.

The council outlined the minister’s policy, noting that the minister generally does not directly hear minor applicants aged 12 to 15 who apply through their parents and have no independent reason for asylum. Instead, their parents or legal representative are heard on their behalf. However, a minor, parent, or representative may request that the child be heard directly, and the minister may also decide to do so if there is a good reason. In response to questions put forth by the council, the minister explained that she herself does not inform minors of this possibility, as that responsibility lies with the Dutch Council for Refugees, which provides information orally and in writing. If such a request is made, the minister usually complies unless it is considered not useful or not in the child’s best interest. In practice, the minister stated that the authority has not taken the initiative to directly interview minors in this age group who lack independent asylum grounds.

The council set out the applicable legal framework, with particular reference to Articles 24(1) and (2) of the EU Charter and Articles 3(1), 12(1) and (2) of the UN Convention on the Rights of the Child (CRC). Pursuant to these legal provisions, the council highlighted that the best interests of the child are a primary consideration in all measures affecting children. Furthermore, it noted that children capable of forming opinions have the right to express them freely in matters affecting them, with appropriate weight given according to their age and maturity. Additionally, they must be given the opportunity to be heard in judicial and administrative proceedings, either directly or through a representative. The council also referred to Article 14(1) of the recast Asylum Procedures Directive (APD), which asserts that Member States may determine in their national law in which cases a minor should be granted a personal interview in light of an application for international protection.

Additionally, the council referred to CJEU judgments which clarify that while children must have the opportunity to be heard, direct hearings are not always required and should be assessed on a case-by-case basis, considering the child’s best interests. In K and L v State Secretary for Justice and Security (C-646/21, 11 June 2024), the CJEU emphasized that procedural safeguards must reflect the child’s best interests and that personal interviews, if conducted, must be child-friendly. In Sagrario, Joaquin and Prudencio (C‑63/23, 12 September 2024), the CJEU noted that the child’s right to be heard does not impose a requirement for a direct hearing of the child, but requires that procedures and legal conditions are in place to provide the effective opportunity for children to express their views freely and for those views to be heard. In Aguirre Zarraga (C‑491/10 PPU, 22 December 2010), the CJEU highlighted that hearings may be omitted if they could harm the child’s well-being and whilst the child therefore has the right to be heard, they can never be obligated to do so.

The council examined the minister’s policy in light of the above legal framework. It firstly considered that based on the legal framework, there is no obligation to always hear directly an accompanied minor between the ages of 12 and 15 without an independent reason for asylum, highlighting the possibility of hearing through a representative with an obligation to give the opportunity for a direct hearing. The council ruled that the minister’s working method was not in accordance with the applicable legal framework, as it did not sufficiently guarantee that that the minors are aware of the possibility of requesting the minister to be heard directly. The council noted that an information leaflet provided by the Dutch Council for Refugees states that accompanied minors between the ages of 12 and 15 can request a direct interview if they have their own direct reasons for an asylum application, and does not mention this possibility also for those without an independent reason for asylum. As to the claim that the Dutch Council for Refugee provides information on this possibility orally, the council regarded that this assertion cannot be accepted without further substantiation. The council also considered the minister’s claim that professional legal aid providers can request a direct interview for a child as national legislation provides in which cases the minster will hear an accompanied minor. However, it held that this does not affect the minister’s obligation to provide information.

Whilst the council agreed with the minister that it is possible to refrain from interviewing a child if this is in their best interest, it held that the minister may only refrain in doing so in exceptional cases and asserted that contrary to what the minister stated, the minister may not take into account the fact that in asylum proceedings it is often not useful to hear directly from accompanied minors without an independent asylum motive. If nevertheless, the minister decided to refrain from a direct hearing, based on the best interests of the child, this decision must be supported by a case-specific justification.

The council also reversed its own previous case law in so far as it considered that Article 12 of the UNCRC expressly provides for the possibility that only the parents may be heard, except in the event of conflicting interests. It stated that in line with its above reasoning, the minister is in principle obliged to hear the accompanied minor without an independent asylum motive who is able to form their opinion directly, unless it would not align with the child’s best interest.

Thus, the council concluded that the minister’s working method was not in accordance with Article 24(2) of the EU Charter read in conjunction with Article 3(1) if the UNCRC and ordered the minister to adjust its policy in compliance with this judgment.

The council agreed with the district court’s finding that the decision making concerning the eldest child was negligent and the appeal was declared unfounded. The council ordered the minister to invite the eldest child for an interview, as well as the second eldest considering that the minor was 13 at the time of this decision, or justify why this may not be in their best interest, and issue a new decision.