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Article 31 of the Procedure Decree allows the applicant to make further submissions and present new documentation at any stage of the asylum procedure. These elements are taken into consideration by the Territorial Commission in the initial procedure.
Decree Law 113/2018, implemented by L 132/2018, has introduced a definition of “subsequent application” (domanda reiterata).[1] An asylum application is considered a subsequent application where it is made after:
- A final decision has been taken on the previous application;
- The previous application has been explicitly withdrawn;[2]
- The previous application has been terminated or rejected after the expiry of 9 months from suspension on the basis that the applicant was unreachable (irreperibile).[3]
- The previous application was rejected because the applicant was privately accommodated and became unreachable (irreperibile) without providing, within 10 days after having become aware of the appointment for the personal interview, the justified reasons for not having known about it.[4]
In case of subsequent applications, asylum seekers benefit from the same legal guarantees provided for asylum seekers, and can be accommodated in reception centres, if places are available.
However, pursuant to the Article 6 (2 a bis) of the Reception Decree, in case of subsequent applications made during the execution of an imminent removal order, the applicant can be detained.[5]
Subsequent applications have to be lodged before the Questura, which starts a new formal registration that will be forwarded to the competent Territorial Commission.
Preliminary admissibility assessment
As stated in Accelerated Procedure, upon the transmission without delay of the application by the Questura, the Territorial Commission has 5 days to decide on the subsequent application made without adding new elements to the personal story or to the situation of the country of origin pursuant to Article 29 (1 b) of the Procedure Decree.[6]
Decree Law 20/2023 amended Article 29 of the Procedure Decree and DL 133/2023 significantly amended Article 29 – bis of the Procedure Decree, applicable when a subsequent request is submitted during the execution of a removal order.
The President of the Territorial Commission makes a preliminary assessment in order to evaluate whether new elements have been added to the asylum application.[7] The President of the Territorial Commission shall conduct a preliminary assessment of the admissibility of the application, to ascertain whether new elements have emerged or have been submitted by the applicant concerning the personal condition of the asylum seeker or the situation in their country of origin, relevant to the granting of international protection, and to evaluate if the delay in the submission of such new elements or evidence cannot be attributed to the applicant’s fault, who needs to provide specific evidence of such situation.[8]
Even if the law distinguishes two phases that are the preliminary assessment, attributed to the President, and the decision, attributed to the Commission, in some cases the procedure has been not regularly followed, resulting in omitting the first or the second phase.
If the applicant has already been recognised as a refugee or subsidiary protection status holder, the law provides that the President of the Territorial Commission shall set the hearing of the applicant to evaluate the reasons given to support the admissibility of the application in the specific case.[9]
Where no new elements are identified, the application is dismissed as inadmissible (see Admissibility Procedure).
The procedure differentiates depending on the case:
- In cases of applicants already recognised as refugees or subsidiary protected in other Countries the law provides that the President of the Territorial Commission sets the hearing of the applicant.[10]
- In case of a subsequent application made after the previous application has been terminated because the applicant was unreachable (irreperibile), the President can declare the application inadmissible by evaluating reasons for being unreachable.[11]
- In case of a first subsequent application made during the execution of an imminent removal order, the law provides that the application must be immediately sent to the President of the competent territorial Commission, who must conduct a preliminary assessment of the admissibility of the application, within three days, while assessing the risks of direct and indirect refoulement. Upon literal reading, the law seems to charge the President of the Territorial Commission with taking an admissibility decision on their own but, according to ASGI, a systemic interpretation of the law, also considering Article 4(4) and Article 28-bis of the Procedure Decree allows to consider that in these cases the decision should also be attributed to the entire Commission.
- During 2019, some Questure automatically declared the inadmissibility of such subsequent applications, inter alia by interpreting the execution phase of a removal order in a broad way. Some rulings of national courts had clarified that this application was contrary to Article 40 of the recast Asylum Procedure Directive. [12]
- In 2023, the DL 133/2023 significantly amended Article 29 bis introducing the paragraph 1-bis and giving a specific power to the Head of Police Station to determine, out of the first subsequent application, if the asylum request is admissible (see Admissibility).[13] According to ASGI this provision is not legitimate as Questure are not entitled and prepared to carry out an assessment of the merit of the asylum request.
As stated by decree Law 130/2020, in this case, if the application is declared inadmissible, the applicant can be detained[14] (see Detention).
The law still does not clarify how the term “execution phase of a removal procedure” should be interpreted. If this provision is not strictly applied to cases in which the removal is actually being performed, it is likely to be applied to all cases of subsequent applications as currently defined by law.
More in general, in case the subsequent application is declared inadmissible, reception conditions can be revoked.[15]
Right to remain and suspensive effect
The Procedure Decree, as amended by Decree Law 130/2020, provides that the right to remain on the territory until a decision is taken by the Territorial Commission is not guaranteed where the applicant:
- Made a first subsequent application for the sole purpose of delaying or preventing the execution of an imminent removal decision;[16]
- Wishes to make a further subsequent application following a final decision declaring the first subsequent application inadmissible, unfounded or manifestly unfounded.[17]
The law does not foresee a specific procedure to appeal against a decision on inadmissibility for subsequent applications. The Procedures Decree as amended by Decree Law 130/2020 and later by DL 20/2023, amended by the conversion Law no. 50/2023, provides, however, that suspensive effect is not granted for appeals against a decision rejecting or declaring inadmissible another subsequent application following a final decision rejecting or declaring inadmissible a first subsequent application, and for appeals against the inadmissibility of a subsequent application submitted in order to avoid an imminent removal, pursuant to Article 29 bis of the Procedure Decree.[18] However, the appellant can request a suspension of the decision of inadmissibility, based on serious and well-founded reasons, to the competent court.
The assessment on the admissibility of the reiterated application for international protection must also include a careful analysis on the prerequisites for the recognition of special protection as introduced by Decree Law 130/2020. On this point, the Court of Cassation has ruled that “in the matter of a reiterated application for international protection, the subject of the proceedings brought before the court is not the administrative measure of inadmissibility, but the establishment of a subjective right, which also includes the prerequisites of the invoked special protection”.[19] In 2023 Court of Cassation again affirmed this principle.[20]
For the rest of the appeal procedure, the same provisions as for the appeal in the regular procedure apply (see Regular Procedure: Appeal).
[1] Article 2(1)(b-bis) Procedure Decree, introduced by Article 9 Decree Law 113/2018 and L 132/2018.
[2] Article 23 Procedure Decree.
[3] Article 23-bis(2) Procedure Decree as amended by DL 133/2023.
[4] Article 12 (5) Procedure Decree.
[5] Article 6 ( 2, a bis) Reception Decree, as amended by Article 3 (3) Decree Law 130/2020 and L. 173/2020. According to Decree Law 130/2020 the provision applies in the limits of available places in CPRs
[6] Article 28-bis(1-bis) Procedure Decree.
[7] Article 29(1)(b) Procedure Decree.
[8] Article 29(1-bis) Procedure Decree, as inserted by the Reception Decree and amended by L 50/2023.
[9] Article 29 (1 bis) Procedure Decree as amended by L 50/2023.
[10] Article 29 (1 bis) Procedure Decree. This includes MS and other countries as the law mentions refugees recognised by countries part of the Geneva Convention, in case the refugees can still enjoy the protection.
[11] Article 23 bis (2) Procedure Decree.
[12] Civil Court of Milan, decision of 13 November 2019 ordered the competent Territorial Commission to conduct the preliminary examination of a subsequent application deemed inadmissible automatically by the Questura, disapplying the Article 29bis of the Procedure Decree considered not in accordance with Article 40 of the recast Asylum Procedure Directive.
[13] Article 29-bis (1 bis) introduced by DL 133/2023, converted into L 176/2023.
[14] Article 6 (2, a bis) Reception Decree, as amended by Article 3 (3) Decree Law 130/2020 and L. 173/2020 and Article 29 bis Procedure Decree. According to Decree Law 130/2020 the provision applies in the limits of available places in CPRs.
[15] Article 23(1) Reception Decree.
[16] Article 7(2)(d) Procedure Decree.
[17] Article 7(2)(e) Procedure Decree, as amended by Article 9 Decree Law 113/2018 and L 132/2018.
[18] Article 35-bis(5) Procedure Decree, as amended by L. 50/2023.
[19] Court of Cassation, decision n. 37275 of 20 December 2022; see also Court of Cassation, decision n. 6374, 25 February 2022.
[20] Court of Cassation, decision no. 29832 of 22 September 2023, available in Italian at: https://bit.ly/49Tyz2u.