An asylum seeker whose claim has been rejected may submit a subsequent application to the International Protection Agency. A person may apply for a subsequent application if he or she can provide elements or findings that were not presented before – subject to strict interpretation – at first instance. This evidence would have to be evidence of which the applicant was either not aware of or which could not have been submitted earlier. Such new elements need to be presented within 15 days of receiving the information.
The IPA will first assess the admissibility of the subsequent application and if the application is deemed admissible, the applicant may be called for an interview, at the discretion of the Agency. Once the application is evaluated, a decision on the case is communicated to the appellant in writing. Since there is no free legal aid at this stage of the proceedings, asylum seekers are almost entirely dependent on NGOs.
There is no limit as to the number of subsequent applications lodged, as long as new evidence is presented every time. Second, third, and other subsequent applications are generally treated in the same manner.
The International Protection Agency created a standard form that applicants or their representatives need to fill in order to file a subsequent application. This form is meant to facilitate the filing of such applications by exempting applicants to draft submissions.
Removal orders are only suspended once the applicant has formally been confirmed to be an asylum seeker by the IPA, since this confirmation triggers the general protection from non-refoulement guaranteed to all asylum seekers.
In practice, asylum seekers filing subsequent application are entitled to an Asylum Seeker Document and all the rights attached to it. However, they usually will have to renew the document every month, hence limiting their ability to apply for a work permit as employers are reticent in employing people with such a limited right to remain.
In the eventuality that a subsequent application is deemed admissible but is not accepted on the merits, there is the possibility of appealing this decision to the International Protection Appeals Tribunal within 15 days, in the same way as with the regular procedure.
In case the subsequent application is deemed inadmissible when no new elements were found, the decision is immediately forwarded to the IPAT for a review in accordance with the accelerated procedure (see relevant chapter), which does not allow for the applicant to appeal properly as provided by the Asylum Procedures Directive. This is particularly problematic due to the risk of misuse of the inadmissibility criteria by the IPA. Indeed, the IPAT will almost all the time confirm the decision of the IPA. In 2021, only two inadmissible cases on 114 were remitted back to the IPA by the IPAT.
There are two main obstacles faced by asylum seekers in respect of subsequent applications. The first is a lack of information. Information on the possibility to lodge a subsequent application is never communicated to asylum seekers whose appeal at the IPAT has been rejected. The second obstacle is the lack of free legal assistance when submitting a subsequent application. The only alternative for asylum seekers is to approach JRS, which is the main NGO offering a free legal service in the field of asylum.
Moreover, Article 16(3) of the Procedural Regulations provides that an exception from the right to remain in the territory may be made where a person makes another subsequent application in the same Member State, following a final decision considering a first subsequent application inadmissible pursuant to article 24 of the Act or after a final decision to reject that application as unfounded. In practice, this is understood by the IPA as a refusal to issue an Asylum Seeker Document to people that have filed a second subsequent application or more.
The Procedural Regulations do mention that this exception may be lifted if the International Protection Agency or the International Protection Appeals Tribunal indicate, by means of a notice in writing, that the return decision in respect of the person in question would constitute direct or indirect refoulement. However, no such case was encountered and it was indicated by the IPA that this cannot be requested by the applicant itself.
This is particularly problematic as even the procedure to determine the admissibility of the application can take up to 6 months. Applications that have been deemed admissible have similar waiting time as first-time applicants.
Until January 2022, the IPA was refusing to issue an ASD for second or more subsequent applications even after they were deemed as admissible. Lawyers from aditus foundation reported that the IPA reviewed its position and finally issued an ASD for their clients but it is unknown if this change in policy will also affects other individuals.
In 2020, 60 applicants had lodged a subsequent application (out of which 17 applications were lodged by Syrian nationals, 9 by Libyan nationals, 5 by Pakistani nationals and 5 by Nigerian nationals).
In 2021, 41 applicants lodged a subsequent application, out of which 9 were lodged by Egyptians, 6 by Bangladeshis, 4 by Pakistanis, 4 by Afghans and 3 by Libyans. Data provided is however incomplete, since NGOs reported filing subsequent applications for Ivorians, Ghanaians and Palestinians as well. They also reported that the chances of seeing a subsequent application passing the admissibility test are very low, and will generally be limited to LGBTI cases.
 Articles 7A and 4 International Protection Act.
 Article 7(1A)-(2) International Protection Act.
 Information provided by the IPAT, January 2021.