Subsequent applications are subject to an Admissibility Procedure. If there are no new grounds for the application, a decision on inadmissibility is issued. In 2022, there were 1,913 subsequent applicants submitted mainly by Russian nationals (857 persons).[1]
The first subsequent application has a suspensive effect on a return decision and a return order cannot be executed.[2] If the application is considered inadmissible because the applicant did not present any new evidence or new circumstances of the case,[3] it can be appealed within 14 days and until the Refugee Board makes a decision, the suspensive effect is upheld. If the application is considered admissible, i.e. containing new evidence or new circumstances relevant to the case, the Head of the Office for Foreigners issues a decision considering the application admissible.[4] In this case, suspensive effect is in force until the final administrative decision on international protection is served. In case of further subsequent applications, there is no suspensive effect on a return decision.[5]
In 2022, the Office for Foreigners issued 136 decisions deeming the application admissible, while the applications of 792 persons were dismissed as inadmissible.[6]
In 2019, the Voivodeship Administrative Court in Warsaw issued a judgement in which the Court stated that the subsequent application cannot be deemed inadmissible even if only one single element of facts of the case has changed.[7]
However, as SIP reports, the decision makers apply a narrow interpretation of the notion of ‘new evidence or new circumstances’ and also misinterpret the importance of new evidence and new circumstances to the proceedings.[8] Moreover, the SIP lawyers noted that there is a well-established practice of not conducting interviews in subsequent application proceedings, including when the applicant presented new evidence or new circumstances in the case. SIP reports a case from 2021 of an LGBTQ+ applicant, whose sexual orientation was subject to examination neither in the first proceedings for international protection nor in the subsequent because the second application was considered inadmissible. The Office for Foreigners claimed that belonging to the LGBTQ+ community was a circumstance that was valid in the first proceedings so it cannot be considered a new circumstance in the subsequent proceedings. In this case, the lawyers argued that the circumstance to be considered ‘new’ does not necessarily have to arise after the first proceedings were finished, but merely was not examined in the first proceedings. There have been judgements of administrative courts that confirm such an approach.[9]
Additionally, there is no consistent approach to the change in the country of origin situation. The SIP lawyers report both decisions on the admissibility of the application in such cases where the human rights situation in the country of origin deteriorated (e.g. Belarusian), as well as decisions claiming the application inadmissible in similar circumstances.[10] The lawyers believe the subsequent applications are considered inadmissible automatically, even if the person returned to the country of origin and then applied again for international protection and also if their health condition changed.[11] Concerning personal interviews, appeals and legal assistance, see the section on the Admissibility Procedure.
[1] Information provided by the Office for Foreigners, 3 February 2023.
[2] Article 330(2) and (3) Law on Foreigners.
[3] Article 38(4) Law on Protection.
[4] Article 38(5) Law on Protection.
[5] Article 330(2)2 Law on Foreigners.
[6] Information provided by the Office for Foreigners, 26 January 2022.
[7] The Voivodeship Administrative Court judgement from 18 April 2019 IV SA/Wa 3394/18, summary available (in Polish) at: https://bit.ly/2UkEbiB.
[8] Legal Intervention Association (SIP), Raport SIP w działaniu, Prawa cudzoziemców w Polsce w 2020 r. [Report SIP in action. Rights of foreigners in Poland in 2020], p. 25, available (PL) at: https://bit.ly/3LnxrIB.
[9] E.g. Judgement of the Voivodeship Administrative Court in Warsaw of 29 April 2021, IV SA/Wa 14663/20, see: Legal Intervention Association (SIP), Raport SIP w działaniu, Prawa cudzoziemców w Polsce w 2021 r. [Report SIP in action. Rights of foreigners in Poland in 2021], available (PL) at: https://bit.ly/43Cozbo
[10] Legal Intervention Association (SIP), Raport SIP w działaniu, Prawa cudzoziemców w Polsce w 2020 r. [Report SIP in action. Rights of foreigners in Poland in 2020], p.25, available (PL) at: https://bit.ly/3LnxrIB.
[11] Legal Intervention Association (SIP), Raport SIP w działaniu, Prawa cudzoziemców w Polsce w 20219 r. [Report SIP in action. Rights of foreigners in Poland in 2019], available (PL) at: https://bit.ly/3tgXbhS.