After a final rejection of the asylum application, the asylum seeker is able to lodge a subsequent asylum application (herhaalde aanvraag) with the IND. This follows from the non–refoulement principles, codified in Article 33 of the Refugee Convention and Article 3 ECHR. The Aliens Circular stipulates how subsequent asylum applications are examined.
The assessment of subsequent asylum application takes place in the so called “one-day review” (de eendagstoets, EDT).
As of 1 July 2019, a new procedure regarding lodging and assessing subsequent asylum applications is applicable. Regarding this new procedure the Aliens Circular have been amended and an IND Work Instruction has been introduced. Relevant is whether the asylum seeker has filled in a fully completed subsequent asylum application form 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. In that situation the following is applicable. The IND shall declare a subsequent application inadmissible in case there are no new elements or findings. The term “new facts and findings” is derived from the recast Asylum Procedures Directive. According to the Secretary of State, and case law, 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. From here on the “new elements or circumstances” will be called “nova”.
The nova criterion is 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. 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, only after the previous decision, gets hold of relevant documents which are dated from before the previous asylum application(s). The basic principle is that the asylum seeker must submit all the information and documents known to him or her in the initial asylum procedure. Also in case of possible traumatic experiences it is in principle for the asylum seeker to, even briefly, mention those.
In this regard, Article 40(4) of the recast Asylum Procedures Directive 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 his or her own, not have been presented in a previous procedure. This is the so-called “verwijtbaarheidstoets”. 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 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. 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.
The strict interpretation of the nova criterium can also be seen 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, cannot be regarded as new facts. On 16 December 2019, the Regional Court of Den Bosch referred questions to the CJEU about this matter. The Court of Den Bosch court seeks to ascertain whether documents which have not been shown to be authentic can, for that reason alone, be deemed not to be covered by the term ‘new elements or findings’ referred to in Article 40 of the Procedures Directive. On 11 February 2021, Advocate General Hogan published his Opinion in this case. AG Hogan concluded that the Dutch practice is incompatible with Article 40(2) of the Procedures Directive, read in conjunction with Article 4(2) of the Qualification Directive (Directive 2011/95). He also highlights that it cannot make a difference whether authenticated originals, non-authenticated originals or copies are provided. They all have to be examined to the standard provided in Article 40(2) and (3) of the Procedures Directive, read in conjunction with Article 4(2) of the Qualification Directive.
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, a lot of people completed the form without substantiating their subsequent asylum claim and the IND decided to disregard many asylum applications. Regional Courts rule differently when it comes to determining whether and at which moment during the procedure an asylum seeker should have had the opportunity to substantiate his or her claim. 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.
As a result, in July 2019 the State Secretary of Justice & Security introduced a new procedure regarding lodging and assessing subsequent asylum applications. The main changes 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:
A completed application form has to be lodged in ACTA. When the application form is not completed the IND could take a 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’). A lot of case law has been delivered by Regional Courts regarding the matter whether the asylum seeker provided sufficient relevant information while submitting a subsequent asylum application.
Fully completed application without interview:
When a fully completed subsequent asylum application form has been submitted, an asylum seeker will not automatically be interviewed. An interview only takes place when it is relevant for a diligent assessment of the application. In the Aliens Circular seven categories are mentioned in which no interview will take place anyway. A lawyer will not automatically be appointed, but an asylum seeker can look for a lawyer himself (also free 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 why no interview had been conducted about the asylum seeker’s subsequent application. 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.
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 this interview does not consist of a complete review of the asylum request and statements. The IND will solely address the question 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, whether the asylum application will be rejected or further research is required.
Three scenarios are possible:
- The application 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 his or her asylum application. The asylum seeker discusses the report of the interview and the written intention the next day (day 2) with his or her lawyer. The lawyer will draft an opinion on the intended decision and will also submit further information. On the third day (day 3) the asylum seeker will receive an answer from the IND as to whether the application is rejected, approved or requires further research;
Further research: When 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). When necessary the procedure can be extended up to 20 days.
When the asylum seeker receives a decision that his or her 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 he or she may be expelled during the appeal. To prevent this, the asylum seeker has to request for a provisional measure with the Regional Court. The appeal has to be lodged within one week after the rejection. 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). 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. 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 arises when an asylum seeker with a re-entry ban, issued on the ground that he or she has a criminal past, lodges a subsequent asylum application. In that case their asylum application will be assessed by the IND, but an appeal against the rejection of the asylum application will be considered inadmissible by the Regional Court. The asylum seeker has to request for cancellation/revocation of the re-entry ban.
In 2020, the number of subsequent asylum applications was 1,596.
|Subsequent applicants in the Netherlands by top 10 countries of origin : 2020|
|Country of origin||Number|
Source: IND Asylum trends, 2020
Paragraphs C1/ 4.6 and C2/6.4 Aliens Circular.
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.
Article 3.118b Aliens Decree; Paragraph C1/2.9 Aliens Circular and IND Work Instruction 2019/9.
Article 30b(1)(d) Aliens Act.
Article 33(1)(d) Aliens Act.
Tweede Kamer, Explanatory notes on the implementation of the recast Asylum Procedures Directive, Vergaderjaar 34 088, number. 3, 2014-2015, 12.
Council of State, Decision No 201113489/1/V4, 28 June 2012.
Article 4.6 GALA.
Council of State, Decision No 201604251/1, 6 October 2017.
See, for example: Council of State, Decision No 200304202/1, 25 September 2003.
Request for a preliminary ruling, Case C—921/19, 16 December 2019.
 The subsequent claims are refused according to Article 30c (1)(a) of the Aliens Act.
Regional Court Amsterdam, Decision NL18.20640, 11 December 2018; Regional Arnhem, Decision NL18.20978, 5 December 2018.
Council of State, decision no 201810080/1/V2, 21 February 2019.
Regional Court Arnhem, decision no NL19.12911, 4 July 2019; Region Court Rotterdam, decision no NL19.3760, 22 March 2019; Regional Court Groningen, decision no NL19.23848, 28 November 2019.
Regional Court of Utrecht, Decision No NL20.9117, 31 August 2020.
Regional Court of Rotterdam, Decision No NL18,24121, 13 February 2019.
Article 82(2)(b) Aliens Act.
Article 69(2) Aliens Act.
Article 30a(1)(d) Aliens Act and Paragraph C1/2.7 Aliens Circular.
Council of State, Decision No 201903236/1, 29 January 2020.
In Dutch, a so called “zwaar inreisverbod” as laid down in Article 66a(7) Aliens Act.
Council of State, Decision No 201207041/1, 19 December 2013.