Author
A subsequent application is considered as an application following a final termination or rejection decision on the former application, subsequent application or in case of a decision on cessation or withdrawal of the international protection granted.[1] New elements or circumstances have to be submitted in order for a subsequent application to be admissible.[2]
Therefore, the Asylum Act prescribes that access to a new asylum procedure shall be granted if one of the following conditions is met:[3]
- The applicant relies on new elements which could not be presented for reasons beyond his or her control and which occurred during or after the completion of the previous procedure. The applicant is obliged to prove the existence of new elements invoked and impossibility of their submission until the date of application for access to a new asylum procedure. The new elements invoked cannot be the result of actions brought by the applicant in order to obtain a form of international protection from the Romanian State;
- From the date of completion of the previous asylum procedure, there have been political, social, military or legislative changes in the country of origin, likely to have serious consequences for the applicant.
For persons whose applications are considered to have been tacitly withdrawn, i.e. persons who have left Romania and moved on to another EU Member State, and the asylum procedure has been terminated, the asylum procedure may be continued if the person makes an asylum claim within 9 months of the decision to close the file, issued in case of implicit withdrawal.[4] If the time limit has expired, the asylum claim is considered a subsequent application.
If the persons have left the territory of the EU or have been removed to a third country or the country of origin, as set out in Articles 19(2) and (3) of the Dublin Regulation, and their asylum procedure has been terminated by a decision closing the file, a new claim lodged in Romania is not deemed a subsequent application.[5]
Therefore, persons who expressly withdraw their asylum applications and have not left the territory of the EU or have not been removed to a third country or to the country of origin cannot continue their asylum procedure in case they return to Romania. As a consequence, they will have to submit new elements or circumstances.
The subsequent application should be submitted personally, except for cases where the applicant is detained, is in pre-trial detention or serving a sentence.[6]
When a subsequent application is registered, IGI-DAI shall inform the IGI-Migration Directorate regarding the granting to the applicant of the permission to remain on the Romanian territory.[7]The law foresees that if the subsequent application is personally submitted by the foreigner and the previous asylum application is finalised, the foreigner is allowed to remain on the territory of Romania for a period of 5 days from the date of the registration of the application for granting access to a new asylum procedure.[8] The law does not impose a time limit on submitting a subsequent application or explicit limitation on the number of asylum applications that may be lodged. However, the right to remain does not apply in the case of a second subsequent claim, thus the applicant is not granted access to territory.[9] The same applies where the documents from the file show that the application is made abusively in order to prevent the removal of the foreigner from the territory of Romania.[10]
The law provides for a safeguard against refoulement, stating that these cases shall apply only if the enforcement of the return decision is considered to be without prejudice to the principle of non-refoulement.
In these cases, a decision is issued as soon as possible justifying the non-granting of the permission to remain on the Romanian territory. This decision shall be communicated directly to the applicant, who is previously informed of the date on which they must present themselves at IGI-DAI or by post.[11] This decision may be appealed within 2 days from the day it is communicated.[12] The competent court is the Regional Court territorially competent for the area in which IGI-DAI issued the decision.[13]
The assessment of the subsequent application is done solely on the basis of a written submission. The law does not provide for a preliminary interview. IGI-DAI delivers a decision within 5 days from the date when the application was registered, on the basis of the reasoned application, the documentation submitted by the foreigner and the elements existing in their personal file.[14]The case officer may issue a decision by which: (a) grants access to a new asylum procedure; or (b) dismisses the application as inadmissible.
The decision is communicated to the foreigner immediately, in writing, by a direct communication of the IGI-DAI’s representatives or by post, to the last declared residence thereof. The decision communicated shall be accompanied by written information in Romanian language and in a language that the applicant understands or is reasonably supposed to understand, of the admission or rejection solution of their application and the conditions under which the decision can be challenged.[15] The decision may also be communicated to the lawyer or representative of the NGO who legally represents the applicant, to the extent that the applicant has expressly stated this.[16]
Rejected subsequent applications may be appealed before the territorially competent Regional Court within 10 days of communication.[17] Judicial review of rejected subsequent applications has no automatic suspensive effect.[18] The foreigner may ask for permission to stay on the territory of Romania. The application for permission to remain on the territory of Romania is solved as a matter of urgency by the competent court, which shall pronounce a final decision, in the council chamber, with the parties being summoned.[19] In this case the foreigner has the right to remain on the territory of Romania until the court has ruled on this request.[20] The permission to remain on the territory of Romania shall be granted until the moment of the court’s pronouncement on the appeal.[21]
Under Article 94(1) of the Asylum Act the court assesses the appeal without hearing the foreigner, within 30 days, and delivers a reasoned decision, by which it either (a) rejects the complaint, or (b) admits the complaint, granting access to a new asylum procedure and ordering IGI-DAI to examine the application in the regular procedure. The decision of the court is irrevocable.[22]
Even though third-country nationals who make a subsequent application have the right to be counselled and assisted at any stage of the procedure by an NGO representative, Romanian or foreign, the projects funded by the national AMIF programme do not cover counselling and assistance for these applicants, as they are not considered as asylum seekers. CNRR representatives provide counselling and assistance on a voluntary basis. Under the project funded by UNHCR, JRS may also provide counselling and assistance to persons who apply for subsequent application and may appoint an attorney if it is a case that might lead to a practice-altering decision.
As of 2022, the situation per centre was the following:
- Timișoara: The director of the Regional Centre Timișoara stated that there were 43 applications, of which 24 were made by foreigners in Arad detention centre.
- Giurgiu: the director of the regional centre stated that only five subsequent applications were made in 2022 and all were rejected.
- Şomcuta Mare: no applications were lodged in 2022, according to the director.
- Bucharest: 128 applications were made during 2022. No further information was provided on the number of admitted and rejected applications.
- Galaţi: Four subsequent applications were made and were rejected. Two were made by Russian nationals and two by Somali nationals.
- Rădăuţi: 12 subsequent application were made in 2022 and were admitted, as they were submitted by Ukrainian nationals.
A total of 105 [23] subsequent applications were lodged in 2020 down from 165 in 2019, down from 230 in 2018. In 2022, 187 subsequent applications were made.[24] In 2023, 188 subsequent applications were made:[25] the main countries of origin were Syria (40 applications), Afghanistan (24), Somalia (18), Palestine (13) and Pakistan (10).
[1] Article 88(1) b) Asylum Act.
[2] Article 88(2)(a)-(b) Asylum Act.
[3] Ibid.
[4] Article 94^1(1)(b) Asylum Act.
[5] Article 94^1(1)(a) Asylum Act.
[6] Article 88(1)(a) and (3) Asylum Act.
[7] Article 40(1) Asylum Decree.
[8] Article 89(1) Asylum Act.
[9] Article 89(2)(b) Asylum Act. A foreigner submits a subsequent application after a previous application of this type has been rejected as inadmissible or if, after granting access to a new asylum procedure, their application has been rejected as manifestly unfounded.
[10] Article 89(2)(a) Asylum Act.
[11] Article 89(3) Asylum Act.
[12] Article 89(4) Asylum Act.
[13] Article 89(5) Asylum Act.
[14] Article 91(1) Asylum Act.
[15] Article 91(3) Asylum Act.
[16] Article 91(4) Asylum Act.
[17] Article 93(1) and (2) Asylum Act.
[18] Article 93(3) Asylum Act.
[19] Article 93(4) Asylum Act.
[20] Article 93(5) Asylum Act.
[21] Article 93(6) Asylum Act.
[22] Article 94(2) Asylum Act.
[23] Information provided by IGI-DAI, 16 February 2021.
[24] Information provided by IGI-DAI, 22 February 2023.
[25] Information provided by IGI-DAI, 18 January 2024.