Author
An application is considered to be a subsequent application when following a final termination or rejection decision on a former application. New circumstances or facts have to be submitted in order for a subsequent application to be admissible.[1] Persons who withdraw their application in writing or tacitly cannot request the continuation of their asylum procedure upon return to Hungary; therefore, they will have to submit a subsequent application and present new facts or circumstances (see section Dublin: Situation of Dublin Returnees).
In 2020 there were 25 subsequent applicants. Out of the 25 asylum seekers, 11 were children (5 boys and 6 girls). The breakdown by sex of the overall number of applicants was 12 men and 13 women. After the introduction of the Embassy Procedure, only one Iranian man applied for asylum subsequently (in September). In 2020, apart from one Algerian man, the other applicants were either Iraqi (13 applicants) or Afghan (10 applicants) nationals.[2] In 2021, there was only one subsequent application submitted in May by a minor girl whose nationality was unknown.[3]
Submitting a subsequent application carries a series of consequences for the applicant:
- New facts or circumstances have to be presented in order for the application to be admissible;[4]
- Admissible subsequent applications are examined in an accelerated procedure (see section on the Accelerated Procedure);[5]
- The court hearing of subsequent applicants who are detained can be dispensed with if their subsequent application is based on the same factual grounds as the previous one;[6]
- The NDGAP interview can be dispensed with if a person failed to state facts or to provide proofs that would allow recognition as a refugee or beneficiary of subsidiary protection in the subsequent application;[7]
- The right to remain on the territory and reception conditions throughout the examination of application are not provided for the subsequent asylum application (except those having been granted subsidiary or tolerated status prior to the subsequent application).[8] Until 21 May 2020, all asylum seekers except unaccompanied minors below age of 14 were kept in the transit zone (without the right to enter Hungary) for the whole duration of asylum procedure. The fact that the subsequent applicants do not have a right to remain on the territory did not actually mean that they were returned to Serbia before getting a decision in their asylum procedure. They were allowed to stay in the transit zone. However, they did not receive any food or any other material conditions, regarding which the ECtHR already found a violation of article 3.[9]
- Judicial review of rejected subsequent applications does not have a suspensive effect (see Accelerated Procedure);[10]
- The amendments that entered into force on 1 January 2018 provided that subsequent procedures are no longer free of charge. As a general rule, applicants in repeat procedures are granted an exemption from paying any costs incurred during the procedure (e.g. related to expert opinions), but applicants having adequate financial resources may be required to pay such fees. This is decided on a case-by-case basis by the NDGAP based on the personal circumstances of the applicants, and a standalone legal remedy is available against the interim decision of the NDGAP.[11]
- Under the rules applied in case of state crisis due to mass migration,[12] the subsequent asylum seeker shall not be entitled to exercise the right to stay on the territory, to aid, support and accommodation and to undertake employment.[13]
There is no time limit to submit a subsequent application or an explicit limitation on the number of asylum applications that may be lodged in the same case.
Not much guidance is provided by the Asylum Act as to what can be considered as new elements. Section 86 of the Asylum Decree only stipulates that the refugee authority shall primarily assess whether the person seeking recognition was able to substantiate any new facts or circumstances as grounds for recognition of the applicant as a refugee or as a beneficiary of subsidiary protection. The existence or not of new facts or circumstances is determined in the admissibility procedure.
Given the lack of clear and publicly available guidelines, the NDGAP may interpret the concept of ‘new facts or circumstances’ in a restrictive and arbitrary way. Examples of such arbitrary interpretation occurred in 2019. For example, an Afghan family received an inadmissible decision, based on Serbia being a ‘safe transit country’ and the court confirmed the decision. However, Serbia then explicitly refused to take back the applicants. The NDGAP refused to continue examining their application on the merits, but instead changed their expulsion order from Serbia to Afghanistan. The applicants submitted another request for asylum, but the NDGAP rejected it as an inadmissible subsequent application, since according to the NDGAP no new facts were provided. Refusal of Serbia to admit the applicants was not considered to be a new fact by the NDGAP. The decision was quashed by the Metropolitan Court who explicitly stated that this is an inappropriate use of the rules on subsequent procedures.[14]
[1] Section 51(2)(d) Asylum Act.
[2] Information provided by NDGAP, 2 March 2021.
[3] Information provided by NDGAP, 7 February 2022.
[4] Section 51(2)(d) Asylum Act.
[5] Section 51(7)(f) Asylum Act.
[6] Section 68(3) Asylum Act.
[7] Section 43(2)(b) Asylum Act.
[8] Section 80/K(11) Asylum Act. This is due to the mass migration crisis measures.
[9] ECtHR, R.R. and others v. Hungary, Application No 36037/17, 2 March 2021 and W.O. and Others v. Hungary, Application No 36896/18, 25 August 2022.
[10] Section 54(4) Asylum Act.
[11] Section 34 Asylum Act.
[12] Section 80/K(11) Asylum Act.
[13] As it is set out in Section 5(a)– (c) Asylum Act.
[14] Metropolitan Court, 15.K.31.737/2019/17, 2 December 2019.