Author
A “subsequent application” is an application for international protection submitted after a final decision has been taken on a previous application for international protection, including cases where the applicant has explicitly withdrawn his/her application and cases where the determining authority has rejected the application following its implicit withdrawal.[1]
The definition of “final decision” was amended in 2018. According to the new definition, as maintained in the Asylum Code, a “final decision” is a decision granting or refusing international protection: (a) taken by the Appeals Committees following an appeal, or (b) which is no longer amenable by the aforementioned appeal due to the expiry of the time limit to appeal.[2] An application for annulment can be lodged against the final decision before the Administrative Court.[3]
The law sets out no time limit for lodging a subsequent application.[4] Subsequent applications are lodged before Regional Asylum Offices (RAO) across the country following appointment given upon pre-registration on the Ministry of Migration and Asylum’s electronic platform.[5]
On this point, it needs to be noted that between May and August 2023, the MoMA’s specific platform was not operating, thus making access to the procedure impossible in practice.[6]
A subsequent application can also be lodged by a member of a family who had previously lodged an application. In this case, the preliminary examination concerns the potential existence of evidence that justifies the submission of a separate application by the dependent person. Exceptionally, an interview is held for this purpose.[7]
As per data published by the MoMA,[8] a total of 6,321 subsequent asylum applications –38 of which concerning UAM– were registered by the Asylum Service in 2023. This amounts to close to 10% of total applications registered by the GAS during the year (64,212, of which 57,891 were first time asylum applications),[9] and marks a close to 24% reduction in subsequent asylum applications compared to the previous year (8,265 in 2022).[10]
That being said, the aforementioned data does not include information on the type (i.e., first, second or further) of subsequent asylum application registered by the GAS, thus making it impossible to assess the extent to which article 94(10) Asylum Code, requiring the submission of a € 100 fee for the registration of each second or further subsequent application, was triggered throughout the year (see below: Second and every following subsequent application).
Information on the main nationalities of those that submitted subsequent asylum applications during the year is also not included in the specific publications, nor was it provided following GCR’s relevant request (sent on 31 January 2024), with the MoMA’s reply (dated 14 February 2024) instead referencing the aforementioned publicly available data, which despite some improvements, is still lacking. The same applies to information regarding the total number of subsequent applications that were considered admissible and referred to be examined on the merits.
During 2023, a total of 4,257 subsequent applications were dismissed as inadmissible at first instance and 2,131 were dismissed as inadmissible at second instance.[11]
Preliminary examination procedure
When a subsequent application is lodged, the competent authorities examine the application in conjunction with the information provided in previous applications.[12]
Subsequent applications are subject to a preliminary examination, during which the authorities examine whether new substantial elements have arisen or have been presented by the applicant that could not be invoked by the applicant through no fault of their own during the examination of their previous application for international protection or appeal. The preliminary examination of subsequent applications is conducted within five days from their lodging to assess whether new substantial elements have arisen or been submitted by the applicant.[13] The examination takes place within two days if the applicant’s right to remain on the territory has been withdrawn.[14] During this preliminary stage, all information is provided by the applicant in writing.[15]
Given the purpose of the procedure, elements or claims related either to the applicant’s personal circumstances or to the situation in the applicant’s country of origin that did not exist during the examination of his/her previous application should be considered new in light of the first asylum procedure. Elements previously available to the applicant or claims that could have been submitted during the first asylum procedure should be considered new when the applicant provides valid reasoning for not presenting them at that stage. Furthermore, such new elements should be considered to be substantial if they lead to the conclusion that the application is not manifestly unfounded, that is to say, if the applicant does not invoke claims clearly not related to the criteria for refugee status or subsidiary protection.
In line with the above, the First Instance Administrative Court of Athens noted in its 54/2023 Decision that “in the present case, after the issuance of the… decision of the 12th Independent Appeals Committee… the aforementioned medical and psychosocial vulnerability assessment report of the doctor… was drawn up in 2018, according to which she falls under the certified cases of vulnerability of Law 4375/2016, as a victim of sexual and gender-based violence, as well as violent behaviour in general, and she needs better living conditions and psychological support, as she presents sleep and feeding disorders, intense anxiety and flashbacks, exposure to extreme psychotraumatic events. Subsequently, the act of …2018 was issued by Moria Reception and Identification Centre of Lesvos RAO regarding the referral of the applicant’s application for international protection to the normal procedure…. Based on these data, the aforementioned vulnerability recognition documents of the applicant, which are included in the elements of the administrative file and support the relevant allegations… presented in the above subsequent application for international protection, constitute, first of all, new critical elements, the invocation of which was not objectively possible at an earlier point of time, since they arose after the issuance of the decision on the initial application for international protection… Following these, the subsequent application for international protection of the applicant was rejected illegally …”.
The 10th Appeals Committee noted in its 65554/2023 Decision that “because, from the comparison of the reasons raised with the applicant’s applications for international protection in …2020 and …2022, it appears that the reason cited in his application in …2022 regarding the fact that in his country he will not be able to receive appropriate medical treatment for the mental illness from which he suffers in conjunction with the submitted medical opinions and medication prescriptions, which were issued after the … decision of the 9th Independent Appeals Committee (by which was rejected at second instance his application of …2020), is a new and substantial element, able to restart the examination procedure of his request. Following these, the applicant’s application for international protection of …2022 is deemed admissible.”
In its 174800/2023 Decision, the RAO Crete noted that “In conclusion, when evaluating and comparing what the applicant initially stated and what she stated in the subsequent application, in combination with the information on the applicant’s country of origin, it appears that the information cited in the subsequent application is new, as not only the phone numbers of the applicant’s relatives are being monitored so she cannot contact them, but also human rights violations of those who oppose the government have been systematically intensified.”
In its 83587/2023 Decision, the RAO Thessaloniki noted that “The applicant claims in his subsequent application that Türkiye is not safe for him because after the rejection of his first application by the Greek authorities he returned to Turkey and was imprisoned by the Turkish army with the intention of deporting him. From the comparative examination of the applicant’s earlier and later application and from his relevant statements before the competent examination authorities regarding the reasons why he does not wish to return to Turkey, it emerges that the reasons presented are new and substantial elements as they relate to events that arose after the… decision of the Appeals Authority. With regard to the condition of the law as to whether these elements are substantial, the Service considers that these elements are substantial, taking into account the personal circumstances of the applicant, i.e. his vulnerability that arose in Greece (possible victim of trafficking) because they significantly increase the possibility that Türkiye is not considered safe in view of the applicant’s situation.”
Above positive decisions issued during 2023 are selected indicatively among cases represented by GCR and published in the Greek Asylum Case Law Report.[16]
If the preliminary examination concludes on the existence of new elements “which affect the assessment of the application for international protection”, the subsequent application is considered admissible and examined on the merits and the applicant is issued a new “asylum seeker’s card”. If no such elements are identified, the subsequent application is deemed inadmissible.[17]
Until a final decision is taken on the preliminary examination, all pending measures of deportation or removal of applicants who have lodged a subsequent asylum application are suspended.[18] However, as mentioned, applicants do not receive an asylum seeker’s card until the conclusion of this preliminary stage, and subject to the application being deemed admissible. In the meantime, therefore, applicants have no access to the rights attached to the asylum seeker status or protection.
Exceptionally, under the Asylum Code, ‘the right to remain on the territory is not guaranteed to applicants who
- make a first subsequent application which is deemed inadmissible, solely to delay or frustrate removal, or
- make a second subsequent application after a final decision dismissing or rejecting the first subsequent application’.[19]
Any new submission of an identical subsequent application is dismissed as inadmissible.[20]
An appeal against the decision rejecting a subsequent application as inadmissible can be lodged before the Independent Appeals Committees under the Appeals Authority within 5 days of its notification to the applicant.[21]
Second and every following subsequent application
Since September 2021, following relevant amendments to the IPA,[22] each subsequent application after the first one is subject to a fee amounting to €100 per application, with the relevant provision being maintained under article 94(10) Asylum Code. This amount may be revised through a Joint Ministerial decision.
A Joint Ministerial Decision of the Ministers of Migration and Asylum and of Finance, which is in force since 1 January 2022, determined various issues concerning the implementation of the statutory provision (definitions, payment procedure, reimbursement of unduly paid fees etc.).[23] The same Ministerial Decision foresees that if the application is submitted on behalf of several members of the applicant’s family, the same fee is paid separately for each applicant, including minor children.[24] Illustratively, a five-member family composed of two parents and three minor children has to pay a fee of €500, to be able to submit a second or further subsequent application.
National human rights bodies, including the Greek Ombudsman and civil society organisations repeatedly called on the Minister of Migration and Asylum to abolish the aforementioned legislative regulation.
As noted by the Greek Ombudsman,[25] “linking the deposit of a fee with the submission of a subsequent application for international protection undermines exercise of the right to asylum, as enshrined in article 18 of the EU Charter of Fundamental Rights. A fee, and indeed one amounting to €100 […], constitutes the submission of a subsequent application almost prohibitive for a population that is in a vulnerable financial situation, as is the case with asylum applicants and contravenes articles 40-42 of Directive 2013/32/EU”.
As further noted in a joint statement by 10 civil society organisations, members of the Lesvos Legal Aid Actor sub-Working Group, the provision is also “in conflict with the provisions of Articles 25(2) and 20(1) of the Greek Constitution, Articles 47 and 52 of the Charter of Fundamental Rights of the EU and relevant case law of the ECtHR regarding the provisions of Articles 3, 8 and 13 of the ECHR, as it effectively makes access to the asylum procedure impossible for those refugees who cannot afford to pay the €100 fee for each person/family member.”[26]
In the same statement, the organisations further flag the additional concerns arising in relation to applicants for international protection who have had their applications rejected as inadmissible, without ever having been examined on the merits, on account of the persistent application of the “safe third country” concept in the case of Türkiye and the persistent refusal of the Greek authorities to enforce article 38(4) Directive 2013/32/EU (article 91(5) Asylum Code), despite the ongoing lack of any reasonable prospect of readmission to Türkiye for now more than three years. As noted, with said practice impacting on Syrian nationals even before the introduction of the JMD designating Türkiye as a “safe third country” for specific nationalities (also see Safe Third Country ), “there are cases of applicants who have not been able to access a safe legal status for [more than] four years, as they are constantly rejected on admissibility. […] the Administration must invite them to an oral hearing to assess the merits according to Article 91(5) of the Asylum Code and not to force them to apply for international protection for a third time and to pay a fee of €100”.[27]
The Greek Council for Refugees (GCR) and Refugee Support Aegean (RSA) have filed a judicial review petition before the Greek Council of State for the annulment of the aforementioned Joint Ministerial Decision. The date of the hearing was set for June 2022 but was subsequently postponed and is currently scheduled for hearing in May 2024. A further annulment application was also filled by HIAS Greece and two families of individual applicants before the Council of State, yet after several postponements, the hearing is similarly currently pending for May 2024.[28]
The European Commission has also pointed out to the Greek authorities that the unconditional submission of a fee of €100 for the second and further subsequent applications raises issues regarding effective access to the asylum procedure as evidenced by European Commissioner Johansson’s reply of 25 January 2022 to a relevant question submitted under the urgent procedure by the German Green MEP Erik Marquardt.[29]
[1] Article 1(κδ) of Asylum Code.
[2] Article 1(κδ) of Asylum Code.
[3] Article 114 (1) of Asylum Code.
[4] Article 94 of Asylum Code.
[5] The relevant platform can be accessed at: https://bit.ly/3Jyqp44.
[6] As per information shared during the 27 September 2023 National Protection Working Group, which is organised and chaired by UNHCR, and currently co-chaired by GCR. Also see GCR, Submission of the Greek Council for Refugees to the Committee of Ministers of the Council of Europe concerning the groups of cases of M.S.S. v. Greece (Application No. 30696/09) and Rahimi v. Greece (8687/08), July 2023, available at: https://tinyurl.com/4xu8c7r8, 6.
[7] Article 94(5) of Asylum Code.
[8] MoMA, Statistics, Consolidated Reports – Overview: December 2023 – International Protection | Appendix A, available at: https://bit.ly/3TxX9jL, tables 8c and 8f.
[9] Ibid.
[10] AIDA, Country Report Greece: 2022 Update, June 2023, available at: https://bit.ly/3PUOVk9, 121.
[11] MoMA, Statistics, Consolidated Reports – Overview: December 2023 – International Protection | Appendix A, available at: https://bit.ly/3TxX9jL, tables 9a and 9b.
[12] Article 94 (1) of Asylum Code.
[13] Article 94 (2) of Asylum Code.
[14] Articles 94(2) and 94 (9) of Asylum Code.
[15] Article 94 (2) of Asylum Code.
[16] The report is prepared and updated by the NGOs GCR, RSA and HIAS Greece, available in Greece at https://bit.ly/44jLjO3.
[17] Article 94(4) of Asylum Code.
[18] Article 94(9) of Asylum Code.
[19] Article 94(9) of Asylum Code.
[20] Article 94(7) of Asylum Code.
[21] Article 97(1d) of Asylum Code.
[22] Article 89(10) IPA, as amended by article by article 23 L.4825/2021, available at: https://bit.ly/4d7ACSN.
[23] Joint Ministerial Decision 472687/ 21.12.2021, Gazette 6246/ B/ 27.12.2021 entered into force on 01 January 2022, available at: https://bit.ly/3JQNj7f. ,
[24] Article 1 (2) Joint Ministerial Decision 472687/2021.
[25] Greek Ombudsman, Comments and observations on the draft law ‘Reform of deportation procedures and returns of third country nationals, attracting investors and digital media nomads, issues of residence permit and procedures for granting international protection and other provisions of the MoMA and Ministry of Citizen Protection, Document Prot. No 43/30.08.20201, available in Greek at: https://tinyurl.com/22yp7m4h, p. 11.
[26] Joint statement by 10 civil society organizations-members of the Legal Aid Working Group of Lesvos, Imposition of a €100 fee for access to asylum from the 2nd and each further subsequent application to applicants for international protection, 2 March 2022, available in Greek at: https://tinyurl.com/n2585h35.
[27] Ibid.
[28] A timeline of the proceeding is available at: https://tinyurl.com/37ydcrn5.
[29] European Parliament, Parliamentary question E-005103/2021, 20 January 2022, available at: https://bit.ly/3M3dGWh.