Author
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- The previous application has been explicitly withdrawn;[2]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 12 months from suspension on the basis that the applicant was unreachable (irreperibile).[3]
In case of subsequent applications, asylum seekers benefit from the same legal guarantees provided for asylum seekers in general and can be accommodated in reception centres, if places are available.
However, pursuant to the new 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.[4]
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 .[5]
The President of the Territorial Commission makes a preliminary assessment in order to evaluate whether new elements concerning the personal condition of the asylum seeker or the situation in his or her country of origin have been added to the asylum application.[6] 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 in other Countries the law provides that the President of the Territorial Commission sets the hearing of the applicant.[7]
- 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.[8]
- In case of a first subsequent application made during the execution of an imminent removal order, but after the amendments made by Decree Law 130/2020, 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.
- During 2019, the previous formulation of the disposition had determined, following a Circular from the National Commission, an illegitimate omission of the preliminary examination by the competent Territorial Commission, as 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. [9]
As stated by decree Law 130/2020, in this case, if the application is declared inadmissible, the applicant can be detained.[10] (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.[11]
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;[12]
- Wishes to make a further subsequent application following a final decision declaring the first subsequent application inadmissible, unfounded or manifestly unfounded.[13]
The law does not foresee a specific procedure to appeal against a decision on inadmissibility for subsequent applications. The Procedure Decree as amended by Decree Law 130/2020 provides, however, that suspensive effect is not granted for appeals against the inadmissibility of a second 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. [14] However, the appellant can request a suspension of the decision of inadmissibility, based on serious and well-founded reasons, to the competent court.
For the rest of the appeal procedure, the same provisions as for the appeal in the regular procedure apply (see Regular Procedure).
[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.
[4] 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
[5] Article 28-bis(1-bis) Procedure Decree.
[6] Article 29(1)(b) Procedure Decree.
[7] 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.
[8] Article 23 bis (2) Procedure Decree.
[9] 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.
[10] 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.
[11] Article 23(1) Reception Decree.
[12] Article 7(2)(d) Procedure Decree.
[13] Article 7(2)(e) Procedure Decree, as amended by Article 9 Decree Law 113/2018 and L 132/2018.
[14] Article 35-bis(5) Procedure Decree, as amended by Decree Law 130/2020. Prior to the 2020 reform, the Procedure Decree stated that suspensive effect was not granted for appeals against the inadmissibility of a first subsequent application.