Author
After a final rejection of the asylum application, the asylum seeker is able to lodge a subsequent asylum application (Opvolgende asielaanvraag) with the IND. This follows from the non–refoulement principles, codified in Article 33 of the Geneva Convention and Article 3 ECHR. The Aliens Circular stipulates how subsequent asylum applications are examined.[1]
The assessment of subsequent asylum application takes place in the so-called “one-day review” (de eendagstoets, EDT).[2]
In July 2019, a new procedure regarding lodging and assessing subsequent asylum applications was introduced, amending the Aliens Circular and putting in place a new IND Work Instruction.[3] Following such procedure, it has to be examined whether the asylum seeker has filled in a fully completed subsequent asylum application form (M35-O) and whether the IND will not continue to examine the subsequent application because the asylum seeker does not provide the relevant information according to the IND. Another relevant change is that an interview does not always take place when assessing a subsequent asylum application.
New facts and findings (nova)
When a subsequent asylum application form is fully completed and the IND continues to examine the application, an EDT (“one-day review”) takes place. If that is the case, the IND shall declare a subsequent application inadmissible in case there are no new elements or findings.[4] The term “new facts and findings” is derived from the recast Asylum Procedures Directive.[5] According to the Secretary of State,[6] and case law,[7] this terminology must be interpreted exactly the same as the former terminology of “new elements or circumstances”. Therefore, all the old jurisprudence and policy before the transposition of the recast Directive is still applicable.[8] From here on, “new elements or circumstances” will be referred to as “nova”.
In the Dutch context the nova criterion has always been interpreted strictly. In case of nova, there will be a substantive examination of the subsequent asylum application. According to Paragraph C1/4.6 of the Aliens Circular, the circumstances and facts are considered ‘new’ if they are dated after the previous decision of the IND. According to established law and policy, in some circumstances, certain facts which could have been known at the time of the previous asylum application are nevertheless being considered ‘new’ if it would be unreasonable to decide otherwise. This is the case, for example, if the asylum seeker gets hold of relevant documents that pre-date their initial asylum application(s), provided that the documents came into possession of the asylum seeker after receiving the previous decision. The basic principle is that the asylum seeker must submit all the information and documents known to them in the initial (first) asylum procedure. In case of having experienced traumatic circumstances, the asylum seeker is also allowed to mention them.
CJEU, L.H. v. Staatssecretaris van Justitie
The strict interpretation of the nova criterion can also be applied in cases in which new documents form the basis of a subsequent application. According to the established case law of the Council of State, (original) documents of which the authenticity cannot be established, or whose source could not be verified, cannot be regarded as new facts or elements.[9]
On 16 December 2019, the Regional Court of Den Bosch referred preliminary questions to the CJEU about this matter in the case LH.
On 10 June 2021, the CJEU ruled that a document submitted by an applicant for international protection in support of a subsequent application could not automatically be excluded from being considered a ‘new element or finding’, within the meaning of Article 40 APD, when the authenticity of that document cannot be established or its source objectively verified.[10]
The evaluation concerning whether new elements could be considered ‘new’ is comprised of two stages. The first one is related to the admissibility of the application and entails the following steps:
- Step 1: Article 40(2) of Directive 2013/32 provides that, for the purpose of taking a decision on the admissibility of an application for international protection pursuant to Article 33(2)(d) of the Directive, a subsequent application for international protection will be subject first to a preliminary examination as to whether new elements or findings have arisen or have been presented by the applicant which relate to the examination of whether the applicant qualifies as a beneficiary of international protection by virtue of Directive 2011/95.[11]
- Step 2: Only if such new elements or findings exist, as compared to the first application for international protection, the examination of the admissibility of the subsequent application continues, pursuant to Article 40(3) of the directive, in order to ascertain whether those new elements and findings add significantly to the likelihood of the applicant qualifies as beneficiary of international protection.[12]
On 15 September 2022, the Council of State ruled that the practice after the ruling in LH had been incorrect.[13] Article 40(3) of the APD stipulates that Member States can examine subsequent applications where the nova add significantly to the likelihood of the applicant qualifying as a beneficiary of international protection. However, this provision has not been transposed into Dutch law, which means that determining whether subsequent applications are deemed admissible should not be based on article 40(3) of the APD, but Article 30a(1)(d) of the Aliens Act, which only stipulates that nova must be relevant in order for the subsequent application to be considered admissible. In accordance with this judgement, the IND changed their policy, and only determines whether new documents or elements are relevant for examining the subsequent application.[14] The IND stated during the previous reporting year that it is examining whether it is necessary to change national laws to better reflect the rules laid down in the APD. The policy that only new and ‘relevant’ elements will lead to the admissibility of a subsequent asylum request has since been incorporated into the Aliens Circular as of June 2023.[15]
The second stage relates to the examination of the substance of such applications.[16]
Furthermore, the CJEU ruled that according to Article 40 APD read together with Article 4(1) and (2) of the Qualification Directive, the assessment of evidence submitted in support of a subsequent application is the same as the assessment of evidence supporting a first application.
The Regional Court of Den Bosch, who referred the preliminary questions to the CJEU in the case L.H., ruled in its final decision that the threshold to establish ‘new’ elements and findings should be set at a lower bar.[17] The examination whether an element or finding is ‘new’ according to Article 40 APD does not entail a substantive research. According to the Regional Court of Den Bosch an element which has not been assessed yet in a previous asylum procedure and has any relation with the asylum account is considered to be ‘new’. As the CJEU ruled, accordingly to Article 4(1) and (2) of the Qualification Directive, that the assessment to establish the existence of new elements or findings must be realised in active cooperation with the applicant. The Regional Court additionally established that in every subsequent asylum procedure the asylum seeker should be interviewed.[18]
The Council of State, partially confirming the Regional Court of Den Bosch’s decision, ruled that its established case law on the assessment of new elements and findings, in particular concerning documents of which the authenticity cannot be established, had to be revised. The Council of State also ruled that, in order to ascertain whether the new elements and findings add significantly to the likelihood of the applicant qualifying for international protection (first stage, second step), more substantive research is required.[19] In accordance with Article 4(1) and (2) the Secretary of State could, for example, examine new documents in relation to previous statements of the applicant or country of origin information.
In the same judgement however, the Council of State established that, according to Article 42 (2) (b) of the APD, the State Secretary does not automatically have to interview each asylum seeker lodging a subsequent application, provided that the decision includes a justification for the exclusion of the subsequent applicant from the personal interview. The State Secretary is allowed to forego a personal interview if it is not necessary for acquiring and examining the information needed for the assessment of the subsequent asylum request. However, the possibility to forego the personal interview exists only on the condition that the asylum seeker is able to put forward a written submission responding to the intended decision to forego the interview and reject the asylum request. The State Secretary must explicitly justify why it is not necessary to provide a personal interview in the intended decision, and the court has the power to scrutinise this justification.
The State Secretary responded to the judgment of the CJEU and stated that it did not have strong implications regarding the assessment of a subsequent application.[20] In the Dutch Council for Refugees’ opinion, Dutch policy has only partially been adjusted to the Judgment of the CJEU, specifically regarding cases of exemption from an interview regarding subsequent applications.[21] On 1 July 2022, the IND published a new Work Instruction 2022/13 outlining their policy regarding subsequent applications, including the situations in which an interview will not be conducted.[22] The Working Instruction 2022/13 includes a non-exhaustive list of examples of when the subsequent application can be rejected without providing a personal interview. For example, when the asylum seeker provides evidence or information that clearly is incapable of leading to a positive decision or if the evidence provided has been falsified, this could be grounds for foregoing the personal interview.[23] The Working Instruction notes that in case of doubt, preference should be given to providing a personal interview before deciding on the subsequent application. It is at the discretion of the Immigration Officer responsible for the examination of the subsequent application to decide whether a personal interview is required, but his decision is subject to judicial review.
In this regard, Article 40(4) of the APD states that Member States may provide that a subsequent application will only be further examined if the asylum seeker concerned presents new elements or findings, which could, through no fault of their own, not have been presented in a previous procedure. This is the so-called “verwijtbaarheidstoets” (‘culpability test’). This Article is not explicitly and separately transposed into Dutch law, leading to a debate in case law as to whether this was necessary. The Council of State ruled in 2017 that it was not the case. The principle of Article 40(4) of the Directive was already incorporated in Article 33(2)(d) of the Aliens Act, while Article 40 (2) and (3) of the Directive are explicitly transposed in the Aliens Act.[24] This means that new elements or findings will only be further examined when they have not been presented in a previous procedure due to no fault of the applicant.
On 9 September 2021, the CJEU ruled in the case X.Y. v. Austria that if a Member State has not implemented the optional stipulation of Article 40(4) of APD, in which the culpability test is laid down, the Member State cannot bring up this objection in assessing the new elements and findings.[25] The Netherlands did not transpose the optional stipulation laid down in Article 40(4) APD in national law. On 15 September 2022, the Council of State ruled in accordance with the CJEU, stipulating that the State Secretary could not declare a subsequent application non-admissible if new elements and findings could have been submitted in a previous application.[26] In the Information Message published in response to this ruling, the IND did not mention the considerations by the Council of State regarding the culpability test.[27] Indeed, Work Instruction 2022/13 regarding subsequent procedures of 1 July 2022 already mentioned that the culpability test is untenable because it has not been transposed into law. This was perhaps in anticipation of the ruling of the Council of State.
Subsequent application procedure
In June 2018, the Council of State ruled that asylum seekers who file a subsequent asylum application by filling in the form (M35-O) have a right to accommodation. As a result, many people completed the form without substantiating their subsequent asylum claim and the IND decided to disregard many asylum applications.[28] The Council of State concluded that the State Secretary of Justice (IND) could give its viewpoint just in the written intention that the subsequent asylum application lacks (sufficient) relevant information and could give the asylum seeker the opportunity to provide more information. The State Secretary was not obliged to do this before issuing the written intention to reject the application.[29]
As a result, in July 2019 the State Secretary introduced a new procedure regarding lodging and assessing subsequent asylum applications. The main changes, compared to the previous rules governing the matter, are as follow:
Lodging the asylum application:
Asylum seekers (or their legal representative) have to lodge their asylum application in person at the application centre in Ter Apel (ACTA) with a completed subsequent application form (M35-0).
Completed application form:
If the application form is not completed the IND could take the viewpoint that the application lacks relevant information, hence the application is rejected according to article 30c (1)(a) Aliens Act (in Dutch: ‘buitenbehandelingstelling van de asielaanvraag’). The Council of State issued numerous decisions regarding the matter whether the asylum seeker provided sufficient relevant information while submitting a subsequent asylum application.[30]
Fully completed application without interview:
When a fully completed subsequent asylum application form has been submitted, an asylum seeker will not automatically be interviewed. According to Article 3.118b (3) Aliens Decree an interview only takes place when it is relevant for a diligent assessment of the application. This is presented in more detail in Paragraph C1/2.9 of the Aliens Circular where several categories are mentioned in which the IND can decide not to conduct an interview. A lawyer will not automatically be appointed, but an asylum seeker can look for a lawyer themselves (also free legal assistance – see Regular procedure: Legal assistance). A “one day review” (Dutch: ‘de eendagstoets’, EDT) will take place.
On 31 August 2020, the Regional Court of Utrecht ruled that the Secretary of State (IND) had not given sufficient reasons as to why no interview had been conducted after the asylum seeker’s subsequent application.[31] Similarly, the Regional Court of Rotterdam held that the asylum seeker should have been interviewed on his subsequent application in a judgement dating 13 February 2019.[32]
In its final judgment after the ruling of the CJEU in the case L.H., the Regional Court of Den Bosch was of the opinion that every asylum seeker who lodges a subsequent asylum application should be interviewed. Additionally, the court ruled that Article 3.118b (3) Aliens Decree in which is stipulated that asylum seekers not always have to be interviewed (worked out in more detail in Paragraph C1/2.9) should be annulled. As previously mentioned, however, the Council of State ruled that according to Article 42 (2) (b) APD an asylum seeker who lodges a subsequent application does not always have to be interviewed.[33]
Fully completed application with interview:
When a fully completed subsequent asylum application has been lodged and the IND is of the opinion that an interview should take place, a lawyer will be appointed and the EDT will take place.
When an interview takes place, it does not consist of a complete review of the asylum request and statements. The IND will solely address the question as to whether new facts or circumstances exist on the basis of which a new asylum application would be justifiable.
After the interview, on the same day, the IND decides whether status will be granted, the asylum application will be rejected or if further research is required.
Three scenarios are possible:
- The protection is granted (refugee protection or subsidiary protection): On the same day the application is granted, the asylum seeker receives a report of the interview and the positive decision;
- The application is rejected: On the same day (day 1) the application is rejected; the asylum seeker receives a report of the interview and the intention to reject their asylum application. The asylum seeker discusses the report of the interview and the written intention the next day (day 2) with their lawyer. The lawyer drafts an opinion on the intended decision and also submits further information. On the third day (day 3) the asylum seeker receives an answer from the IND as to whether the application is rejected, approved or requires further research;
- Further research: if further research is required, the application will be assessed in a 6-day procedure (day 1: interview; day 2: review of the interview and corrections and additions; day 3: written intention to reject the asylum application; day 4: submission of the view by the lawyer; day 5: delivery of decision and day 6: distribution of decision). If necessary the procedure can be extended up to 20 days. The person then has the same rights and entitlements as during a Track 4 “Regular” procedure.
When the asylum seeker receives a decision that their subsequent asylum application has been rejected, the asylum seeker can be expelled. The asylum seeker could, under certain conditions, be expelled even at the moment the written intention to reject the subsequent application is taken.
An appeal before the Regional Court can be lodged against a negative decision on the subsequent asylum application. However, lodging an appeal does not automatically have suspensive effect for the asylum seeker to remain lawfully in the Netherlands, which means they may be expelled during the appeal. To prevent this, the asylum seeker has to request for a provisional measure with the Regional Court.[34] A provisional measure is granted if the applicant can prove that they are in an emergency situation where their interests are liable to be prejudiced if the measure were to not be granted.[35] The threat of being expelled and/or losing reception entitlements usually qualifies as an emergency situation.[36]
The appeal has to be lodged within one week after the rejection.[37] The court mainly examines if the elements and findings are ‘new’ in the sense of the Aliens Act (and Aliens Circular) and the General Administrative Law Act (GALA).[38] After the decision of the Regional Court the asylum seeker can lodge an onward appeal with the Council of State. As a result of the Gnandi judgment of the CJEU, divergent national case law has been delivered on the matter in which cases an appeal has automatic suspensive effect, also regarding to an appeal to the refusal of a subsequent asylum application. However, in a judgment of 29 January 2020 in a case involving a fourth asylum application and in which the third-country national was placed in detention, the Council of State ruled that the Gnandi judgment did apply.[39] The legal effects of the return decision were thus suspended. In view of this judgment, it therefore seems that the Gnandi judgment applies to a subsequent application.
A problem in the past arose when an asylum seeker with a re-entry ban of more than five years (zwaar inreisverbod),[40] issued on the ground of being considered a serious threat to public policy, public security or national security,[41] lodged a subsequent asylum application. In such a case, their asylum application would be assessed by the IND, but an appeal against the rejection of the asylum application would be considered inadmissible by the Regional Court.[42] The asylum seeker had to request a cancellation/revocation of the re-entry ban. This practice was abandoned in 2018, when the Council of State ruled, pursuant to the Ouhrami ruling of the CJEU,[43] that the re-entry ban only comes into effect when the alien has left the territory of the CEAS, meaning that there are no grounds for restricting the right of appeal of those who have not left the territory.[44]
In 2023, there were 1,390 subsequent asylum applications, compared to 1,529 for the whole of 2022.
| Subsequent applicants in the Netherlands by top 10 countries of origin: Jan – Dec 2023 | |
| Country of origin | Number |
| Nigeria | 150 |
| Morocco | 149 |
| Iraq | 105 |
| Iran | 93 |
| Algeria | 87 |
| Syria | 81 |
| Eritrea | 62 |
| Uganda | 52 |
| Somalia | 44 |
| Gambia | 40 |
Source: IND, Asylum Trends, December 2023, available at: https://bitly.ws/3dX9F.
[1] Paragraphs C1/ 4.6 and C2/6.4 Aliens Circular.
[2] The “one-day review” means that on the first day of the procedure it is assessed whether the asylum seeker has a document, which is not an asylum procedure. The whole administrative procedure regarding assessing the subsequent application as a rule takes three days, with a possibility for extension.
[3] Article 3.118b Aliens Decree; Paragraph C1/2.9 Aliens Circular and IND, Work Instruction 2019/9, Procedure herhaalde aanvragen, available in Dutch at: https://bit.ly/3Gp77Lh.
[4] Article 30b(1)(d) Aliens Act.
[5] Article 33(1)(d) Aliens Act.
[6] Dutch Parliament, Explanatory notes on the implementation of the recast Asylum Procedures Directive, Vergaderjaar 34 088, number. 3, 2014-2015, 12.
[7] Council of State, ECLI:NL:RVS:2012:BX0767, 28 June 2012, available in Dutch at: https://bit.ly/3HVjTnc.
[8] Article 4.6 GALA.
[9] See, for example: Council of State, Decision No 200304202/1, 25 September 2003, available in Dutch at: https://bit.ly/3StprdA.
[10] CJEU, C-921/19, 10 June 2021, L.H. v. Staatssecretaris van Justitie en Veiligheid, available at: https://bit.ly/3UuXaWI.
[11] Ibid, paragraph 36.
[12] Ibid, paragraph 37.
[13] Council of State, ECLI:NL:RVS:2022:2699, 15 September 2022, available in Dutch at: https://bit.ly/3wbtHHn.
[14] IB 2022/91 Niet-ontvankelijkheid opvolgende aanvragen, available here: https://bit.ly/3PynACy.
[15] See paragraphs C1/2.9 and C1/4.6 of the Aliens Circular.
[16] CJEU, C-921/19, 10 June 2021, L.H. v. Staatssecretaris van Justitie en Veiligheid, available at: https://bit.ly/3UuXaWI, paragraphs 34 and 53.
[17] Regional Court Den Bosch, ECLI:NL:RBDHA:2021:6993, 7 July 2021, available in Dutch at: https://bit.ly/3USes0e.
[18] Council of State, ECLI:NL:RVS:2022:208, 26 January 2022, available in Dutch at: https://bit.ly/3upoFGD.
[19] Ibid, paragraph 5.4.7.
[20] State Secretary, 8 July 2021, Reactie op het bericht ‘Nederland kan honderden nieuwe asielprocessen verwachten na uitspraak Europees Hof’, available in Dutch at: https://bit.ly/33rsFbR.
[21] Amendment Aliens Circular, Besluit van de staatssecretaris van Justitie en Veiligheid, 23 September 2021, Staatscourant 2021, No 41948, available in Dutch at: https://bit.ly/3HZlXc4.
[22] IND, Work Instruction 2022/13 Opvolgende asielaanvragen, 1 July 2022, available in Dutch at https://bit.ly/3X07gwF.
[23] The list of examples are also included in paragraph C1/2.9 of the Aliens Circular.
[24] Council of State, ECLI:NL:RVS:2017:2718, 6 October 2017, available in Dutch at: https://bit.ly/3wk7C9h.
[25] CJEU, C-18/20, XY versus Austria, 9 September 2021, available at: https://bit.ly/496q041.
[26] Council of State, ECLI:NL:RVS:2022:2699, 15 September 2022, available in Dutch at: https://bit.ly/3wbtHHn.
[27] IB 2022/91 Niet-ontvankelijkheid opvolgende aanvragen, available in Dutch at: https://bit.ly/3PynACy.
[28] The subsequent claims are refused according to Article 30c (1)(a) of the Aliens Act.
[29] Council of State, ECLI:NL:RVS:2019:574, 21 February 2019, available in Dutch at: https://bit.ly/3w8IO4a.
[30] For example Council of State, ECLI:NL:RVS:2021:2549, 17 November 2021, available in Dutch at: https://bit.ly/3uko4pJ; Council of State, ECLI:NL:RVS:2020:2285, 23 September 2020, available in Dutch at: https://bit.ly/3SO4M47; Council of State, ECLI:NL:RVS:2020:1940, 12 August 2020, available in Dutch at: https://bit.ly/49osafP.
[31] Regional Court Utrecht, ECLI:NL:RBDHA:2020:14792, 31 August 2020, available in Dutch at: https://bit.ly/42SOuLK.
[32] Regional Court Rotterdam, Decision No NL18.24121, 13 February 2019, not published on a publicly available website.
[33] Council of State, ECLI:NL:RVS:2022:208, 26 January 2022, available in Dutch at: https://bit.ly/3upoFGD.
[34] Article 82(2)(b) Aliens Act.
[35] Article 8:81 General Administrative Law Act (GALA).
[36] See for example: Regional Court Haarlem, ECLI:NL:RBDHA:2023:13719, 24 August 2023 (expulsion), available in Dutch at: https://bitly.ws/3dX55; Regional Court Utrecht, ECLI:NL:RBDHA:2022:11553, 7 April 2022 (reception facilities and entitlements), available in Dutch at: https://bitly.ws/3dX6y.
[37] Article 69(2) Aliens Act.
[38] Article 30a(1)(d) Aliens Act and Paragraph C1/2.7 Aliens Circular.
[39] Council of State, ECLI:NL:RVS:2020:244, 29 January 2020, available in Dutch at: https://bit.ly/3OEF3tL.
[40] Article 66a(7) Aliens Act.
[41] Article 11(2) Return Directive and Article 6.5a(5) Aliens Decree.
[42] Council of State, ECLI:NL:RVS:2013:2539, 19 December 2013, available in Dutch at: https://bit.ly/48e8o57.
[43] CJEU, C-225/16, Mossa Ouhrami, 26 July 2017, available at: https://bit.ly/49otxet.
[44] Council of State, ECLI:NL:RVS:2018:3998, 5 December 2018, available in Dutch at: https://bit.ly/495zbli.