General (scope, criteria, time limits)
The new International Protection Act provides for a new definition of “inadmissible applications”. The following grounds allow for deeming an asylum application inadmissible:[1]
- Another Member State has already granted the applicant international protection;
- The applicant comes from a First Country of Asylum;
- The applicant comes from a Safe Third Country;
- The applicant has lodged a Subsequent Application presenting no new elements;
- A dependant of the applicant has lodged a separate application after consenting to have his or her case made part of an application made on his or her behalf; and
- The applicant has been recognised in a third country and can avail him or herself of that protection or otherwise enjoys sufficient protection from refoulement, and can be readmitted to that country.
It is important to note that coming from a safe country of origin is no longer a ground for the application to be deemed inadmissible. The definition of inadmissible in national legislation is now in line with the Asylum Procedure Directive.
According to the International Protection Act, inadmissibility is a ground for an application to be processed under the Accelerated Procedure.
As the law mentions the inadmissibility of an application for recognition of refugee status, only the International Protection Agency can decide upon the admissibility of the application.[1] Applications submitted by individuals having lodged a subsequent application presenting no new elements or already benefiting from the protection of another MS are considered inadmissible and usually processed under the accelerated procedure.
NGOs started to express concerns over the application of inadmissibility procedures in 2018, since it procedure does not provide for an effective remedy but only a three-day review with the International Protection Appeals Tribunal which does not allow the applicant to provide written submissions or to be heard. The decisions are found to be a mere confirmation of the first administrative decision without any examinations of points of facts or law (see below).
In 2020, 196 applications were considered inadmissible (172 on the basis that applicants had already a protection in another Member State and 22 in the context of subsequent applications where no new elements were provided.[2] By way of comparison, 388 applications were deemed inadmissible in 2019.
In 2021, 123 applications were deemed inadmissible by the IPA, 57 on the basis that applicants were already beneficiaries of protection in another Member State and 66 in the context of subsequent applications where no new elements were provided. During the year, 41 new subsequent applications were filed.[3]
Personal interview
According to Article 24.3 of the new International Protection Act, the IPA shall allow applicants to present their views before a decision on the admissibility of an application is conducted. In practice, applicants coming from a first country of asylum or a safe third country are usually heard during an interview. Interviews for applicants already granted protection in another MS are usually limited to a preliminary interview. Applicants submitting a subsequent application with no new elements are usually not given the opportunity of a personal interview. In the (rare) case in which the subsequent application is deemed admissible, the IPA will interview the applicants on the merits of their cases with further questions on the new evidence provided.
Appeal
The International Protection Act foresees that inadmissible applications are channelled through the accelerated procedure, the relevant provisions of the Act regarding inadmissible applications all send back to the provisions for manifestly unfounded applications which “shall apply mutatis mutandis” (see Accelerated Procedure).[4] In terms of appeal, it means that the decision “shall immediately be referred to the Chairperson of the IPAT who shall examine and review the decision of the IPA within three working days”.[5]
In 2021, the IPAT carried 114 reviews on inadmissible applications, 112 of which were confirmed. When the decision of the IPA is not confirmed by the IPAT, the case is remitted back to the IPA for “further examination”. In practice, the IPA seems to consider this as confirmation that the application is admissible and will proceed with an interview on eligibility.
Legal assistance
Article 7(3) of the International Protection Act provides for the right to free legal aid for all appeals submitted to the IPAT. However, as the recommendation deeming an application inadmissible is automatically and systematically referred to the Tribunal, the appellant is not able to effectively participate in the review or to be represented.
[1] Court of Appeal, Paul Washimba v Bord tal-Appell dwar ir-Rifugjati, 28 September 2012: https://bit.ly/36zTpbr.
[2] Information provided by the IPA, April 2021.
[3] Information provided by the IPA, March 2022.
[4] Art. 24(2) of the International Protection Act
[5] Art 23.3 and 24 International Protection Act.