Subsequent applications

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A person whose international protection claim has been rejected may submit a subsequent application to the International Protection Agency.[1] A person may apply for a subsequent application if they can provide elements or findings that were not presented before – subject to strict interpretation – at first instance. The applicant is required to submit evidence of which they were either not aware, or which could not have been submitted at an earlier instance.

Act XIX of 20 December 2022 removed the requirement to present new facts or evidence within 15 days of becoming aware of such information. This brought the Act in line with the CJEU judgement in XY v Bundesamt für Fremdenwesen und Asyl.[2]

The IPA will first assess the admissibility of the subsequent application, and this also includes an assessment as to whether the new elements or findings “significantly add to the likelihood of the applicant qualifying as a beneficiary of international protection.” If the application is deemed admissible, the applicant may be called for an interview, at the discretion of the Agency. Once the application is evaluated, a decision on the case is communicated to the appellant in writing. Since there is no free legal aid at this stage of the proceedings, asylum applicants are almost entirely dependent on NGOs or private lawyers to present an appeal.

There is no limit as to the number of subsequent applications lodged, as long as new evidence is presented every time. Second, third, and other subsequent applications are generally treated in the same manner.

The International Protection Agency created a standard form that applicants or their representatives need to fill in in order to file a subsequent application. This form is meant to facilitate the filing of such applications by exempting applicants to draft submissions.

Despite the International Protection Act clearly stating that a personal interview on the admissibility of the application shall be conducted before a decision on the admissibility of an application has been taken, this rarely happens in practice.[3] Applicants submitting a subsequent application where no new elements were presented are not given the opportunity to be heard during a personal interview. The procedure is only in writing, with the ability for the legal representative to present submissions along with the application. In the (rare) event where the subsequent application is deemed admissible, the IPA will interview the applicants on the merits of their case with further questions on the new evidence provided.

Removal orders are only suspended once the applicant has formally been confirmed to be an asylum applicant by the IPA, since this confirmation triggers the general protection from non-refoulement guaranteed to all asylum applicants.

In practice, asylum applicants filing a first subsequent application are entitled to an ASD and all the rights attached to it. However, they usually will have to renew the document every month (until the application is deemed admissible), hence limiting their ability to apply for a work permit as employers are reticent to employ people with such a limited right to remain. At the beginning of 2025, the Home Affairs Ministry confirmed the revocation of the previous policy/practice of barring from the labour market applicants whose subsequent applications had been deemed inadmissible.

For asylum-seekers who filed a second or more subsequent application, the ASD will only be provided if the application is deemed admissible. The Procedural Regulations provide that an exception from the right to remain in the territory may be made where a person makes another subsequent application in the same Member State, following a final decision considering a first subsequent application inadmissible or after a final decision to reject that application as unfounded.[4]

The Procedural Regulations mention that this exception may be lifted if the International Protection Agency or the International Protection Appeals Tribunal indicate, by means of a notice in writing, that the return decision in respect of the person in question would constitute direct or indirect refoulement. However, no such case was encountered, and it was indicated by the IPA that this cannot be requested by the applicant itself.

As a practice, the PIO generally refrains from removing any individual with a pending subsequent application independently of the number of applications filed but is likely to detain the applicant on the basis of the Reception Regulations.

Processing time is similar to first-time applicants with the exception of detained applicants who are prioritised. In practice, NGOs find that asylum-seekers who filed a second or more subsequent application are likely to remain undocumented for more than 6 months before they can hope to have a decision on the admissibility of their application.

In the eventuality that a subsequent application is deemed admissible but is not accepted on the merits, it is automatically rejected as manifestly unfounded. In these cases, the applicant would not have the right to appeal[5] (see Accelerated procedure – Appeal regarding the review process).

In case the subsequent application is deemed inadmissible, the decision is immediately forwarded to the IPAT for a review in accordance with the accelerated procedure, which does not allow for the applicant to file an appeal, and be heard and will likely be confirmed by the IPAT as practice indicates (see Accelerated Procedure).

In S.H. v. Malta, the applicant filed two subsequent applications, both rejected as inadmissible by the IPA. The ECtHR noted that the first subsequent application was deemed inadmissible despite the IPA concluding that the applicant had presented new elements and noted that “despite the rampant incongruence, the Tribunal’s review confirmed the decision, without any reasoning”. With regard to the second subsequent application which was filed on the basis of the Court’s order for interim measure, which in the Court’s own words “had precisely referred to the absence of an adequate assessment”, the Court noted “with no surprise” that the Tribunal confirmed the decision. The Court ultimately concluded that the applicant did not have access to an effective remedy under Article 13 for the purposes of his claim under Article 3.[6]

In February 2025 the ECtHR decided the case A.B. and Y.W. v. Malta,[7] a case concerning two Chinese nationals of Uighur ethnicity who, after arriving legally in Malta in 2016, applied for asylum citing persecution risks in China. Their application was rejected by the Maltese Refugee Commissioner (former title of the IPA) and this was later upheld on appeal. In 2022, upon applying for a nomad visa, their irregular stay was discovered, and they were issued removal orders. They contested the removal before the IAB, bringing updated evidence, including COI and UN findings regarding persecution of Uighurs in China. The IAB concluded that the applicants had not presented new evidence warranting reconsideration and upheld the removal orders.

The ECtHR held unanimously that there would be a violation of Article 3 ECHR if the applicants were returned to China without an updated, ex nunc risk assessment. The Court noted that Malta failed to properly reassess the risk posed by the 2022 removal, relying instead on asylum findings made in 2017. The IAB, while competent to undertake a fresh assessment, declined to do so substantively. The Court rejected Malta’s objection that the applicants had not exhausted domestic remedies by not filing a new asylum application. It found that applicants were not required to lodge repetitive or formally burdensome applications where an available remedy (IAB appeal) had already been pursued and proved ineffective.

Additionally, the Court reaffirmed that the applicants belonged to a group systemically exposed to persecution and arbitrary treatment in China and that recent UN reports supported this risk. The removal, without adequate procedural safeguards or reassessment, would thus breach Article 3.

The ECtHR found a procedural violation of Article 3 ECHR due to the Maltese authorities’ failure to conduct an updated risk assessment prior to removal. The judgment underscores the necessity of an ex nunc review of risks in expulsion proceedings, especially for persons belonging to vulnerable or persecuted groups. The Court did not find it necessary to separately examine the complaint under Article 13.

NGOs reported challenges faced by LGBTIQ+ applications when disclosing their identities after having obtained a rejection at first instance. Attempts to tackle this issue by underlining late disclosure concepts, particularly within a context where applicants are most generally detained, are met with a reiteration of the legal obligation of applicants to present their stories as effectively as possible, and that ample information and reassurances are provided by the authorities to all applicants.

aditus foundation reported that the IPA rejected at least one Palestinian national on two occasions, his second application being remitted back to IPA by decision of the IPAT. The UNHCR intervened in this case by submitting their written observations and being present during the interview. The case is still pending. Several subsequent applications from Sudanese non-Arab Darfuri were also rejected as inadmissible by the IPA. The Government reiterated that all cases were handled in line with the rules on subsequent applications.[8]

IPA confirmed that in 2024, 60 subsequent applications were lodged:

[1] Articles 7A of the International Protection Act, Chapter 420.

[2] CJEU (Third Chamber), XY v Bundesamt für Fremdenwesen und Asyl. Request for a preliminary ruling from the Verwaltungsgerichtshof. Case C-18/20, 9 September 2021.

[3] Article 24 (3) of the International Protection Act, Chapter 420.

[4] Article 16(3) of the international Protection Act, Chapter 420.

[5] Ministry for Home Affairs, Security, Reforms and Equality, Feedback on the 2022 AIDA Country Report on Malta, shared with ECRE in January 2024.

[6] ECtHR, S.H. v. Malta, application no 37241/21, 20 December 2022, § 92-97.

[7] A.B. and Y.W. v. Malta, 2025, 2559/23, 4 February 2025, available here.

[8] Information provided by Home Affairs Ministry in January 2024.