Subsequent applications

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The Immigration Office is also competent for registering subsequent applications i.e. the asylum seeker’s declaration on new elements and the reasons why he or she could not invoke them earlier, and transmit the claim “without delay” to the CGRS.[1] It can often take some time before these files are transmitted to the CGRS. These files are not considered a priority for the Immigration Office, which prioritises Dublin files.[2]

After the application is transmitted, the CGRS first decides on the Admissibility of the claim by determining whether there are new elements which significantly add to the likelihood of the applicant qualifies as a beneficiary of international protection.[3] The claim is deemed admissible because the previous application was terminated based on implicit withdrawal.[4]

The CGRS should take this decision within 10 working days after receiving the application from the Immigration Office. If the person is in detention, this decision should be taken within 2 working days.[5] If the CGRS declares the application admissible, it examines the merits under the Accelerated Procedure. The final decision should be made within 15 working days.[6] In the past years, significant delays in these procedures were noted in practice.[7] The CGRS indicates it cannot decide within this strict legal deadline but stresses that treating subsequent applications is a priority.[8]

If the subsequent application is dismissed as inadmissible, the CGRS should determine whether the applicant’s removal would lead to direct or indirect refoulement.[9] Recent case law of the CALL concerning Afghan applicants confirmed this.[10]

Evaluating new elements is strictly applied in practice according to multiple actors and lawyers.

An appeal to the CALL against an inadmissibility decision should be made within 10 days, or 5 days when the applicant is in detention.[11] The appeal has an automatic suspensive effect, except where:[12]

1. The CGRS deems that there is no risk of direct or indirect refoulement; and
2. The application is either (i) a second application within one year from the final decision on the previous application and made from detention or (ii) a third or further application.

Legal assistance is arranged in exactly the same way as concerning first asylum applications. However, in practice, some asylum seekers or lawyers have experienced difficulties obtaining “pro-Deo” assignments because the Bureau for legal assistance requires them to provide proof of the existence of new elements in advance.

An applicant does not have a right to remain on the territory even before the CGRS pronounces itself on admissibility in cases where:[13]

1. The application is a third application; and
2. The applicant remains without interruption in detention since his or her second application; and
3. The CGRS has decided in the previous procedure concerning the second application that removal would not amount to direct or indirect refoulement.

In principle, all applicants for international protection, including subsequent applicants, have the right to access reception conditions during the examination of their case. However, the Reception Act allows the possibility to refuse reception to subsequent applicants until their asylum application is deemed admissible by the CGRS. Although the Reception Act explicitly states that decisions which limit or withdraw the right to reception should be in line with the principle of proportionality, individually motivated and based on the particular situation of the person concerned, Fedasil almost systematically refuses to assign a reception place to subsequent applicants until their asylum application is declared admissible by the CGRS (see Right to reception: subsequent applications).

A total of 4,652 applicants lodged subsequent applications in 2022:

Source: CGRS, Asylum Statistics 2022.

[1] Article 51/8 Aliens Act.

[2] Myria, Contact meeting of 21 November 2018, availabe in Dutch at:  https://bit.ly/2Rf4Sjo, para 26.

[3] Article 51/8 Aliens Act.

[4] Ibid, citing Article 57/6/5(1)-(5) Aliens Act.

[5] Article 57/6(3) Aliens Act.

[6] Article 57/6/1(1) Aliens Act.

[7]  Myria, Contact meeting 19 September 2018, available in Dutch at: https://bit.ly/2MvKKc8, para 11.

[8] Myria , Contact meeting 15 June 2022, available in Dutch and French at: https://bit.ly/3ZHDEVL.

[9]  Article 57/6/2(2) Aliens Act.

[10]  CALL, Specific questions concerning Afghanistan, 20 October 2022, available in Dutch and French at: http://bit.ly/3UbUECF.

[11] Article 39/57 Aliens Act.

[12] Article 39/70 Aliens Act.

[13] Article 57/6/2(3) Aliens Act.