A Turkish mother and her two children entered irregularly the territory of the EU together coming from Bosnia to Croatia and requested international protection in Croatia. In December 2023, one of the two children (third applicant), still a minor, left Croatia alone and entered Austria, where he requested international protection. During the initial interview, he stated that the Croatian police had mistreated all members of his family and that his mother had also mistreated and beaten him, claiming that his aunt and uncle were in Austria and that he wanted to live with them. In June 2024, the mother (first applicant) and the other son (second applicant), who was born in March 2012, entered Austria irregularly and requested international protection there. During the initial interview, the mother stated that her destination country had always been Austria highlighting the bad reception conditions in Croatia. As for the reasons why they had left Türkiye, she stated that she feared that her ex-husband would kill her and her children if they returned to Türkiye. The son that first entered Austria informed the Federal Office for Immigration and Asylum (BFA) that he had reconciled with his mother and that he wanted to be accommodated together with her and his brother. They all lived in a joint household in Austria since 11 July 2024. With regard to the mother and the adult son, second applicant, BFA requested the competent Croatian authority to take back the applicant in accordance with the Dublin III Regulation. The request was expressly agreed to by the Croatian authority. Regarding the minor son, third applicant, BFA informed the Croatian authority, with reference to Article 20(3) of the Dublin III Regulation, that it assumed that Croatia was also responsible for conducting the asylum procedure. The Croatian authority did not reply. On 27 September 2024, BFA rejected the applications of all three of them and stated that based on Article 20(5) Dublin III Croatia was responsible for the mother and adult son, and based on Article 20(3) Croatia was responsible for the minor son.  The applicants lodged an appeal before the Federal Administrative Court.  

The Federal Administrative Court upheld the appeal and set aside the decisions of BFA holding that the third applicant (minor son) was to be treated as an unaccompanied minor due to his entry into Austria without his mother and that Austria was responsible for examining the request. Moreover, according to the court, Austria was also responsible for examining the application of the mother and the adult son  pursuant to Article 10 of the recast Dublin III Regulation. Analysing the applicant's status was essential, since only by classifying him as an “unaccompanied minor” under Article 2(j) could Austrian jurisdiction be justified. BFA lodged an appeal against this decision before the Supreme Administrative Court (SAC). 

SAC held that the third applicant was not considered an unaccompanied minor under the definition contained in Article 2(j) of the recast Dublin III Regulation. SAC noted that it was not disputed that the third applicant (minor son) had originally entered the European Union territory, specifically Croatia, accompanied by his mother, an adult legally responsible for him. SAC found that the minor son was not left behind in Croatia by his mother and emphasised that this was rather a case in which the third applicant (minor son) left Croatia without being accompanied by his mother and subsequently entered Austria because he did not want to stay with her at that time after a dispute between them. SAC held that there were no reasons to believe that the mother of the minor son would have wanted to relieve herself of her responsibility and that the child would have left on his own motion for that reason, travelling alone within the Member States. SAC supported such reasoning by noticing from the content of the files submitted, that he was wanted by the Croatian authorities through a Schengen-wide alert as an ‘runaway minor' ‘reported missing by a parent, family, member or guardian'. Importantly, SAC held that the definition of ‘unaccompanied minor' under Article 2(j) of the Dublin III Regulation refers to the initial entry into the European Union, and not to subsequent movements within the EU. SAC concluded that, since the third co-participant was not an unaccompanied minor, Austria  was not responsible for conducting the asylum procedure under Article 8(4) or Article 10 of the Dublin III Regulation.  

In conclusion, SAC highlighted that accepting the lower court's interpretation could provide an incentive for family members, after entering the territory of the Member States together, to encourage their minor children to travel alone through and to other Member States in order to 'choose', by means of such a procedure, for the whole family, the Member State which they consider to be the most desirable for their stay in the territory of the Member States.  

The Supreme Administrative Court upheld BFA's appeal and annulled the decision of the lower court as unlawful.