QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
On the Application of
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Official Shorthand Writers to the Court)
Mr Timothy Otty (instructed by the Treasury Solicitor, Queen's Anne's Chambers, 28 Broadway, London SW1H 9JS) for the Defendant
Crown Copyright ©
Mr Justice Lightman:
"Where an applicant for asylum is an unaccompanied minor the Member State responsible for examining the application shall be that where a member of his or her family is legally present provided that this is in the best interests of the minor."
For this purpose "Family Member" is defined in Article 2 as meaning (in short) a spouse, a minor child or "the father, mother or guardian when the applicant or refugee is a minor and unmarried." It will accordingly be for Hungary to determine whether the United Kingdom is the Member State responsible for examining the application for asylum on the ground that Article 6 applies. Article 6 cannot (as submitted on behalf of the claimant) operate to divest Hungary of responsibility to make this determination and vest the responsibility in the United Kingdom. I should add that contrary to the submissions of the claimant in my view Article 6 affords no support for the view that the United Kingdom is the Member State responsible for determining the claimant's asylum claim and can have no application on the facts of this case because: (a) for the purposes of the Regulation the relevant date is the date of the application for asylum in Hungary; and (b) on that date (1) the claimant was not an unaccompanied minor: he was accompanied by his adult cousin; and (2) the claimant's uncle living in the United Kingdom was in no sense his guardian, let alone externally invested with formal responsibility (whether by law or custom) with formal responsibility for him: see R on the application of G v. Secretary of State CO/2052/2004 Wilson J at para 33.