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. 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 that prioritises Dublin files.
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 qualifying as a beneficiary of international protection. The claim is deemed admissible where the previous application has been terminated on the basis of implicit withdrawal.
The CGRS should take this decision within 10 working days after receiving the application from the Immigration Office. Due to a high volume of subsequent applications, the 10 days delay is often not respected. If the person is in detention, this decision should be taken within 2 working days. If the CGRS declares the application admissible, it continues with an examination of the merits under the Accelerated Procedure. The final decision should be made within 15 working days. In 2019, significant delays in these procedures were noted in practice, from several months up to more than a year.
In case the subsequent application is dismissed as inadmissible, the CGRS should determine whether the removal of the applicant would lead to direct or indirect refoulement.
The evaluation of new elements is strictly applied in practice according to multiple actors and lawyers.
- The CGRS deems that there is no risk of direct or indirect refoulement; and
- 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 with regard to first asylum applications. However, in practice some asylum seekers or lawyers themselves have experienced difficulties in obtaining “pro-Deo” assignments because the bureau for legal assistance required 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:
- The application is a third application; and
- The applicant remains without interruption in detention since his or her second application; and
- 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 provides for 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.
A total of 5,432 applicants lodged subsequent applications in 2021:
|Subsequent applicants by 6 main countries of origin: 2021|
The significant increase in subsequent applications by Afghan applicants in 2021 is to be attributed to the Taliban’s takeover in Afghanistan. From mid-August until March 2022, certain decisions on Afghan applications for international protection were temporarily and partially suspended, including decisions about the non-admissibility of subsequent applications. During this period, each case was checked on the presence of relevant new elements. If such elements were present, a decision of admissibility was taken. However, no decisions of inadmissibility were notified as long as the CGRS was still gathering information about the situation in Afghanistan. As of 2 March 2022, the CGRS has determined its new policy towards Afghan applicants for international protection and decision taking in these cases will resume, including for subsequent applications (see Differential treatment of specific nationalities in the procedure).
 Article 51/8 Aliens Act.
 Myria, Contact meeting of 21 November 2018, availabe in Dutch at: https://bit.ly/2Rf4Sjo, para 26.
 Article 51/8 Aliens Act.
 Ibid, citing Article 57/6/5(1)-(5) Aliens Act.
 Myria, Contact meeting 19 September 2018, available in Dutch at: https://bit.ly/2MvKKc8, para 11.
 Article 57/6(3) Aliens Act.
 Article 57/6/1(1) Aliens Act.
 Article 57/6/2(2) Aliens Act.
 Article 39/57 Aliens Act.
 Article 39/70 Aliens Act.
 Article 57/6/2(3) Aliens Act.