Author
An application is deemed as “subsequent” where it is made after:[1]
- The rejection of an asylum application by the CNDA or by OFPRA without appeal;
- The asylum seeker had previously withdrawn their asylum claim and did not ask for a reopening within 9 months;
- OFPRA has taken a decision to discontinue the processing of the claim and a 9-month period has elapsed;[2]
- The asylum seeker has left the French territory, including to go back to their country of origin.
There are no limits on the number of subsequent applications that can be introduced.
In order for the asylum seeker to introduce a subsequent application they must, as all asylum seekers, present themselves to the Prefecture to register their claim and obtain an asylum claim certificate.[3] Since March 2017, the person has to go back to the orientation platform (SPADA) to obtain an appointment at the GUDA like all asylum seekers.
The Prefecture can refuse to grant the asylum seeker the certificate when a first subsequent application has already been rejected by OFPRA or when a first subsequent application is submitted in order to prevent a compulsory removal order.[4] In case of a subsequent application, the time period to send the completed asylum claim is shorter than in case of a first application: instead of 21 days, the asylum seeker has 8 days to introduce their subsequent claim before OFPRA.[5] In case the claim is incomplete, the asylum seeker has 4 days, instead of 8 in case of a first application, to send missing elements.
If a removal order has been issued following the rejection of the first asylum application, it will be suspended during the examination of the first subsequent application by OFPRA.[6]
The allocation of reception conditions is facultative for subsequent applications, and in practice almost systematically refused.[7]
Assessment of new facts or circumstances
When OFPRA receives the subsequent application, it conducts a preliminary examination within 8 days in order to determine whether the subsequent application is admissible or not.[8] The assessment of admissibility has been further interpreted by case law. The Council of State has upheld the CNDA position stating that the preliminary assessment of the admissibility of a claim must fulfil two cumulative conditions: (a) the alleged facts or circumstances must be “new”; and (b) their probative value must be such as to warrant a modification of the assessment of the well-founded nature of the claim.[9]
With regard to the first limb, the Council of State ruled later in 2018 that a final judgment by the ECtHR finding that a removal measure to the country of origin would constitute a violation of Article 3 ECHR constitutes new evidence, warranting admissibility of the subsequent application.[10]
To support their subsequent application, the asylum seeker must provide in writing “new evidence” or facts subsequent to the date of the CNDA decision, or evidence occurring prior to this date if they were informed of it only subsequently.[11]
In practice, it is difficult to provide evidence of new information and to prove its authenticity to substantiate subsequent claims. Asylum seekers often face difficulties in accessing the documents needed to prove new information e.g., difficulty in contacting their country of origin to obtain the evidence.
Preliminary admissibility procedure
During the preliminary examination of the subsequent application, OFPRA is not obliged to interview the asylum seeker.
If, after the preliminary examination OFPRA considers that this “new evidence” or facts do not significantly increase the risk of serious threats or personal fears of persecution in case of return, it can declare the subsequent application inadmissible. The decision must be notified to the asylum seeker as well as information relevant to the procedure and deadlines for lodging an appeal.[12] On the contrary, if the subsequent application is admissible, OFPRA has to channel it under the accelerated procedure and summon the asylum seeker to an interview. So far, the practice has demonstrated that asylum seekers who lodge a subsequent application often do not get an interview.
An appeal can be lodged before the CNDA within a time period of 1 month. However, following the 2018 reform, this appeal no longer has suspensive effect.[13] The CNDA will then have 5 weeks to issue a decision on the appeal.[14] Negative decisions “by order” (ordonnance) continue to be common practice.
Out of the total 142,496 applications registered by OFPRA in 2023, approx. 16,830 were subsequent applications, thus representing 11.8% of the total number of applications registered, [15] compared to 12.3% in 2022 (16,090). Countries of nationality most represented in subsequent applications in 2022 (no data for 2023) were Türkyie (1,237), Albania (1,011), Haïti (1,009), Nigeria (986) and Pakistan (873).[16]
Starting from the notification of a negative decision by OFPRA on a first subsequent application, regardless of its admissibility or not, the Prefecture can refuse to deliver or renew the asylum claim certificate and can issue an order to leave French territory (OQTF).[17]
[1] Article L. 531-41 Ceseda.
[2] Article L. 531-40 Ceseda. Note that this decision is appealed not before the CNDA but before the territorially competent Administrative Court: Council of State, Decision No 412292, 17 January 2018.
[3] Article R. 531-35 Ceseda.
[4] Article L. 542-2 Ceseda.
[5] Article R. 531-4 Ceseda.
[6] Article L. 541-3 Ceseda.
[7] Practice-informed observations by Forum Réfugiés and partners, January 2024.
[8] Article R. 531-38 Ceseda.
[9] Council of State, Decision No 3979611, 26 January 2018; CNDA, Decision Nos 15025487 and 1502488, 7 January 2016.
[10] Council of State, Decision No 406222, 3 October 2018.
[11] Article L. 531-42 Ceseda.
[12] Article L. 531-32 Ceseda.
[13] Article L. 542-2 Ceseda.
[14] Article L. 532-6 Ceseda.
[15] OFPRA, ‘Premières données de l’asile 2023 [chiffres provisoires]’, 23 January 2024, available in French at: https://bit.ly/3xaPG1u.
[16] OFPRA, 2022 Activity report, 2023.
[17] Article L. 542-2 Ceseda.