Author
The law sets out no time limit for lodging a subsequent application.[1]
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 eventual existence of evidence that justifies the submission of a separate application by the depending person. Exceptionally, an interview shall be held for this purpose.[2]
A total of 5,802 subsequent asylum applications were submitted to the Asylum Service in 2021, thereby doubling the number of subsequent applications lodged in 2020 (2,700).[3] This increase can be attributed to the fact that many applicants were examined under the safe third country concept and their applications were rejected as inadmissible, as well as to the deterioration of the situation in Afghanistan after the Taliban takeover in August 2021. Indicatively, out of the total number of subsequent applications, according to the figures published by Eurostat,[4] 1,435 were submitted by Afghans and 930 by Syrians. The difficulty in having access to the asylum procedure observed during 2021 should also be taken into consideration as an important factor of the number of subsequent applications.
| Subsequent applications 2021* | |
| Number of applications | |
| First | 5,553 |
| Second | 236 |
| Third | 13 |
| Total | 5,802 |
*The initial application for international protection was placed at any given time since the launch of Asylum Service (7.6.2013)
Both the administration’s insistence on the arbitrary application of the “safe third country” concept and the security situation in Afghanistan after the takeover by the Taliban are inextricably linked to an over 100% increase in subsequent applications on 2020. During 2021, one in five asylum applications registered was a subsequent application.
A total of 3,214 admissibility decisions on subsequent applications were issued throughout 2021. However, neither the total number of subsequent applications considered admissible and referred to be examined on the merits, nor the number of subsequent applications dismissed as inadmissible at first instance in 2021 is not available.[5]
“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been taken on a previous application for international protection, including cases where the applicant has explicitly withdrawn his/her application and cases where the determining authority has rejected the application following its implicit withdrawal.[6]
The definition of “final decision” was amended in 2018. According to the new definition, as maintained in the IPA, 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 to the aforementioned appeal due to the expiry of the time limit to appeal.[7] An application for annulment can be lodged against the final decision before the Administrative Court.[8]
Preliminary examination procedure
When a subsequent application is lodged, the relevant authorities examine the application in conjunction with the information provided in previous applications.[9]
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 and could not be invoked by the applicant during the examination of her/his previous application for international protection. The preliminary examination of subsequent applications is conducted within 5 days to assess whether new substantial elements have arisen or been submitted by the applicant.[10] According to the IPA, the examination takes place within 2 days if the applicant’s right to remain on the territory has been withdrawn.[11]
During that preliminary stage, according to the law all information is provided in writing by the applicant,[12] however in practice subsequent applications have been registered with all information provided orally.
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 are 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 are 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.
Accordingly, the 18th Appeals Committee noted in its 4829/2020 Decision that “although the applicant’s claims presented in his subsequent application were also presented in general terms during the examination of his first application for international protection, the subsequent application presents for the first time in a coherent manner elements related to his mental state that shed light and explain the reasons that made him leave his country of origin and the connection between his health issues and his fear of persecution he claims to face in his country. These elements where presented during the examination of his first application through no fault of his own due to the fact that his mental health was already at that time particularly strained and he was in no position to present the reasons of his fear of persecution explicitly”.[13]
Similarly, the Asylum Unit in Amygdaleza considered in its 366444/ 2021 Decision as new and substantial the applicant’s claims, i.e. his sexual orientation and the tortures he experienced, presented in his subsequent application on the basis that he could not present them at an earlier stage due to the fact that “he is suffering from depression and post-traumatic stress disorder and depressive episode of a reactive nature” and therefore merit further consideration [14]
In its 7268/2021 Decision, the RAO Thessaloniki noted that “while examining an international protection application it should be taken into account that that the cultural factors, the gender or the traumatic experiences of the applicants may affect the way in which they are likely to express themselves. It is common that asylum seekers find it difficult to tell their personal story. Fear and distrust of the authorities also plays a role in maintaining the applicant’s silence. It is therefore accepted that applicants were afraid to present the reasons which led them to leave their country in an earlier stage [15]
However, in most cases, the Asylum Service incorrectly interprets the concept of new and substantial elements according to GCR findings and dismisses relevant subsequent applications as inadmissible.
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. The applicant is issued a new “asylum seeker’s card” in that case. If no such elements are identified, the subsequent application is deemed inadmissible.[16]
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.[17]
Exceptionally, under the IPA, “the right to remain on the territory is not guaranteed to applicants who
(a) make a first subsequent application which is deemed inadmissible, solely to delay or frustrate removal, or
(b) make a second subsequent application after a final decision dismissing or rejecting the first subsequent application”.[18]
Any new submission of an identical subsequent application is dismissed as inadmissible.[19]
Until the completion of this preliminary procedure, applicants are not provided with proper documentation and have no access to the rights attached to asylum seeker status or protection. The asylum seeker’s card is provided after a positive decision on admissibility.
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. [20]
Second and every following subsequent application
Under the legislative change that entered into force on 4 September 2021, each subsequent application after the first one is subject to a fee amounting to 100 € per application. [21] According to this provision, the amount may be revised through a Joint Ministerial decision.
A Joint Ministerial Decision of the Ministers of Migration and Asylum and of Finance, entered into force four months later on 1 January 2022, determining various issues concerning the implementation of the aforementioned statutory provision (definitions, payment procedure, reimbursement of unduly paid fees etc.).[22]
In the intervening time between the legislative change and the issuance of the aforementioned JMD – between September 2021 and 1 January 2022, competent authorities refused to register second subsequent applications or more but one month after the JMD, they resumed the registration of such applications. Since September 2021, Lesvos RAO, amongst other RAO’s, has informally suspended the registration process of second subsequent applications or more in violation of the principle of legal certainty and in violation of article 6 par. 1 of Directive 2013/32 / ΕU,. As a result, those applicants who had their first subsequent application rejected were unable to submit a new subsequent application and remained in a legal limbo and extremely precarious situation. They have been living in inhuman and degrading conditions for several months given that they deprived from access to healthcare and financial benefits after the final rejection of their previous application and the consequent deactivation of PA.A.Y.P.A. They are also deprived of any other financial resources and are at risk of arrest, administrative detention and deportation.
Moreover, the Ministerial Decision foresees that if the application is submitted on behalf of several members of the applicant’s family, the fee is required for each applicant separately, including minor children. By way of illustration, in a constellation of five family members – two parents with three minor children – a fee of 500 euros is required.[23]
Particular concerns arise in relation to applications for international protection falling under the scope of the JMD designating Turkey as a “safe third country” for applicants whose country of origin is Syria, Afghanistan, Pakistan, Bangladesh, Somalia; i.e. cases where their previous applications have been examined only on admissibility under Article 86 par. 1 IPA (Turkey safe third country) and have been rejected as inadmissible, without ever having been examined on the merits. Moreover, despite the fact that Turkey has suspended readmission for almost 2 years, these applications have been rejected as inadmissible due to the continued refusal of the Greek authorities to enforce Article 86 (5) IPA, which foresees that they should be examined on the merits if applicants cannot return to the third country inn question.
It should be noted that the above procedure was in force for Syrian citizens even before the implementation of the JMD which defines Turkey as a “safe third country” and as a result there are cases of applicants who have not been able to access a safe legal status for 3 years, as they are constantly rejected on admissibility. For the applicants whose application for international protection has never been examined on the merits, the Administration must invite them to an oral hearing to assess the merits according to article 86 par. 5 IPA and not to lead them to apply for international protection for a third time, while obliging them to pay a fee of 100 euros for this purpose. Moreover, this provision also includes asylum seekers from countries where a substantial change of circumstances has taken place, such as Afghanistan, despite the fact that the existence of new and essential elements and the non-abusively submission of the application are given.
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 of Article 89 (10) IPA and of JMD “as it is clear that the legislative provision based on which the payment of the fee constitutes a prerequisite for the submission of a subsequent application for international protection for a financially deprived and vulnerable population, such as asylum seekers and especially for large families, constitutes the submission of the asylum application prohibitive. [24] As a result, this condition undermines the right of access to asylum, as enshrined in Article 18 of the Charter of Fundamental Rights, as the provision is contrary to articles 6 par. 1 and 40-42 of Directive 2013/32/EU. In addition, it conflicts with the provisions of articles 25 par. 2 and 20 par. 1 of the Constitution of Greece, articles 47 and 52 of the Charter of Fundamental Rights of EU law and the relevant case law of the ECtHR regarding the provisions of Articles 3, 8 and 13 of the ECHR”.[25] 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 is set in June 2022.
Furthermore, it appears that European Commission has also pointed out to the Greek authorities that the unconditional submission of a fee of EUR 100 for the second subsequent applications raises issues regarding the effective access to the asylum procedure as evidenced by European Commissioner Johansson’s reply of 25 January 2022 to a relevant question put under the urgent procedure by the German Green MEP Erik Marquardt.[26]
[1] Article 89 IPA
[2] Article 89(5) IPA.
[3] Ministry of Migration and Asylum, Reply to parliamentary question by KINAL, 97157/2022, 17 February 2022, available at: https://bit.ly/3HiYIsF.
[4] Eurostat, Asylum applicants by type of applicant, citizenship, age and sex – annual aggregated data (rounded), available at: https://bit.ly/3GlFCDi.
[5] Ministry of Migration and Asylum, Reply to parliamentary question by KINAL, 97157/2022, 17 February 2022, available at: https://bit.ly/3HiYIsF
[6] Article 63(g) IPA.
[7] Article 63(a) IPA.
[8] Article 108(1) IPA.
[9] Article 89(1) IPA.
[10] Article 89(2) IPA.
[11] Articles 89(2) and 89(9) IPA.
[12] Article 89(2) IPA.
[13] Greek Asylum Case Law Report, available at: https://bit.ly/3Nxgexp, 47.
[14] Greek Asylum Case Law Report, available at https://bit.ly/3Nxgexp, 50.
[15] Greek Asylum Case Law Report, available at https://bit.ly/3Nxgexp, 48.
[16] Article 89(4) IPA.
[17] Article 89(9) IPA.
[18] Article 89(9) IPA.
[19] Article 89(7) IPA.
[20] Article 92(1d) IPA.
[21] Article 89 (10) IPA, as added by article 23 L.4825/04.09.2021, Gazette 157/ A/ 04.09.2021.
[22] Joint Ministerial Decision 472/ 21.12.2021, Gazette 6246/ B/ 27.12.2021 entered into force on 01 January 2022.
[23] Article 1 (2) Joint Ministerial Decision 472/2021.
[24] Document Prot. No 43/30.08.20201 “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 Ministry of Migration and Asylum and Ministry of Citizen Protection|, available at https://bit.ly/36adOEj, 11.
[25] GCR, Imposition of a fee of 100 euros for access to asylum from the 2nd and every following subsequent application to applicants for international protection, including minors, available at: https://bit.ly/3jBxUdN.
[26] European Parliament, Parliamentary question E-005103/2021, 20 January 2022, available at: https://bit.ly/3M3dGWh.