The Dublin Regulation, mutual trust and fundamental rights: No exceptionality for children?

Abstract

AbstractMutual trust in the Dublin III Regulation is justified by the assumption that all Member States respect the fundamental rights of asylum seekers and that it is therefore immaterial which Member State processes any given claim. This justification has been questioned in light of the treatment of asylum seekers in some Member States. Nonetheless, in order to circumvent a Dublin transfer on fundamental rights grounds, the Court of Justice of the EU has held that the risked violation must meet the threshold for inhuman or degrading treatment in Article 4 of the Charter. Recently, the Court rejected the proposition that another Charter right—the principle of the best interests of the child—could block Dublin transfers of families with children. Through a child‐rights analysis of the jurisprudence, this article explores the idea of exceptionality for children, concluding that there is potential for the best interests principle to trump mutual trust.