An asylum seeker whose claim has been rejected may submit a subsequent application to the Refugee Commissioner. 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 proof of which the applicant was either not aware of, or, which could not have been submitted before. Such new elements need to be presented within 15 days of receiving the information.
RefCom 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 Refugee Commissioner. 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.
Removal orders are only suspended once the applicant has formally been confirmed to be an asylum seeker by the Refugee Commissioner, since this confirmation triggers the general protection from non-refoulement guaranteed to all asylum seekers.
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 Refugee Appeals Board 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 Refugee Appeals Board for a review, which does not allow for the applicant to appeal properly as provided by the Asylum Procedures Directive.
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 RAB 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.
In 2019, 62 applicants had filed a subsequent application.