Author
General (scope, criteria, time limits)
The law provides for an admissibility procedure that is characterised by:
- specific grounds for considering an asylum application inadmissible;[1]
- specific time limits for the first instance decision on admissibility;[2]
- legal consequences in case the competent authority does not comply with those time limits;[3]
- the right to an appeal against the inadmissibility decision;[4] and
- specific rights related to admission to the regular procedure[5]
The grounds laid down in article 19-A (1) of the Asylum Act for considering an asylum application inadmissible include cases where the asylum seeker:
Falls under the Dublin procedure;[6]
Has been granted international protection in another EU Member State;[7]
Comes from a First Country of Asylum, i.e., has obtained refugee status or otherwise sufficient protection in a third country and will be readmitted to that country;[8]
Comes from a Safe Third Country, i.e., due to a sufficient connection to a third country, can reasonably be expected to seek protection in that third country, and there are grounds for considering that they will be admitted or readmitted to that country;[9]
Has made a subsequent application without new elements or findings pertaining to the conditions for qualifying for international protection;[10] and
Is a dependant who had lodged an application after consenting to have their case be part of an application lodged on their behalf, in the absence of valid grounds for presenting a separate application.[11]
The National Director of SEF/Board of AIMA has 30 days to take a decision on the admissibility of the application,[12] which is reduced to 10 days in the case of subsequent applications[13] and applications following a removal decision,[14] and to 7 days in the case of the Border Procedure.[15]
In case SEF/AIMA does not comply with these time limits, the claim is automatically admitted to the procedure.[16]
In practice, all asylum applicants undergo an interview that assesses the above-mentioned inadmissibility clauses along with the merits of the application.[17]
Statistics shared by AIMA for 2023 do not make a distinction between inadmissibility decisions and in-merit rejections in accelerated procedures, merely indicating a total of 158 decisions for both categories.
According to the information available to CPR, except for Dublin-related decisions, the number of asylum applications deemed inadmissible in 2023 was low. As per the data collected by CPR, a total of 271 inadmissibility decisions from applications made in 2023 were adopted by the beginning of 2024.[18] Out of those, 18 were non-Dublin decisions, including inadmissibility on the grounds of having been granted international protection in another Member State, first country of asylum, safe third country and a subsequent application without new elements.
While SEF/AIMA generally admits asylum seekers to the regular procedure in case of non-compliance with applicable time limits, the automatic admission and issuance of a provisional residence permit has at times required a proactive intervention of the asylum seeker or of their legal counsel.
Additionally, in 2023, CPR observed significant delays in the recognition of automatic admission to the regular procedure by the national authorities. Notably, by the end of the year, AIMA issued more than 300 admissibility decisions due to the non-compliance with the 30-day time limit by the national authorities.[19] A significant number of these decisions concerned applications made several months before.
Since the beginning of the operation of AIMA, CPR has also observed a number of cases where applications are simultaneously deemed inadmissible, rejected as manifestly ill-founded (accelerated procedure), and deemed excluded from subsidiary protection (including in border procedures).[20]
Personal interview
The Asylum Act provides for the systematic personal interview of all asylum seekers, including to assess admissibility,[21] except for cases where:
- the evidence already available allows for a positive decision; or
- the applicant lacks legal capacity due to long lasting reasons that are not under their control.[22]
As mentioned above, in previous years, SEF confirmed that applicants were guaranteed the right to an interview before any decision regarding their application was adopted, emphasising that interviews could only be waived in the cases listed in the Asylum Act. SEF also noted that interviews were conducted in all types of procedure, including Dublin (see Regular procedure: Personal interview and Dublin procedure: Personal interview).
AIMA did not provide information regarding its interviewing practices, notably the number of interviews conducted, the number of applications decided without a personal interview, and the use of remote means (for the conduction of interviews or for interpretation).
In practice, the individual interview can either focus on Dublin related questions only or cover both the admissibility and the merits of the claim. The modalities of the interview are the same as those of the regular procedure (see Regular procedure: Personal interview).
CPR is aware of cases deemed inadmissible on the grounds of the applicant having been granted protection in another Member State where the personal interview was waived on the grounds of article 5(2)(a) of the Dublin Regulation.
CPR is not aware of the use of videoconferencing for interviews. This has been confirmed by SEF in the past.
A decision from TCA South issued in 2021 considered that, despite the absence of an explicit reference in the relevant norm,[23] the authorities are bound to articles 16 and 17 of the Asylum Act (personal interview and report) within the examination of applications made following a removal order.[24]
Appeal
The Asylum Act provides for an appeal against an inadmissibility decision consisting of a judicial review of relevant facts and points of law by the Administrative Court.[25] The time limit for lodging the appeal varies according to the inadmissibility ground. It is further impacted by the application of the border procedure.
| Time limits for appealing inadmissibility decisions in calendar days | ||
| Inadmissibility ground | Asylum Act provision | Days |
| Inadmissibility at the border | Article 25(1) | 4 |
| Inadmissibility on the territory: | ||
| Subsequent application with no new elements | Article 33(6) | 4 |
| Application following a removal decision | Article 33-A(6) | 4 |
| Dublin decision | Article 37(4) | 5 |
| Protection in another EU Member State | Article 22(1) | 8 |
| First country of asylum | Article 22(1) | 8 |
| Safe third country | Article 22(1) | 8 |
| Application by dependant | Article 22(1) | 8 |
As in the regular procedure, the first and onward appeals are automatically suspensive,[26] with the exception of onward appeals concerning inadmissible subsequent applications and applications following a removal order.[27]
The law provides for a simplified judicial process with reduced formalities and time limits with the objective of shortening the duration of the judicial review.[28]
Without prejudice to issues already discussed in Regular Procedure: Appeal, such as the poor quality of legal assistance and language barriers therein that have an impact on the quality and effectiveness of appeals, CPR is not aware of systemic or relevant obstacles faced by asylum seekers when appealing a first instance decision on admissibility in practice.
The information provided by the CSTAF for 2023 regarding the number, nationalities of appellants, and average duration and results of judicial reviews of first instance decisions does not make a distinction between the type of asylum procedures (see Statistics).
Legal assistance
Regarding access to free legal assistance for asylum seekers during the first instance admissibility procedure and at appeal stage, the general rules and practice of the regular procedure apply (see section on Regular Procedure: Legal Assistance).
[1] Article 19-A Asylum Act.
[2] Articles 20(1),24(4), 33(4) and 33-A(5) Asylum Act.
[3] Articles 20(2) and 26(4) Asylum Act.
[4] Articles 22(1) and 25(1) Asylum Act.
[5] Article 27(1)-(3) Asylum Act pertaining to the issuance of a provisional residence permit. Furthermore, until the amendment to the Asylum Act enacted in 2022, only applicants admitted to the regular procedure had the right to work according to article 54(1) Asylum Act.
[6] Article 19-A(1(a) Asylum Act.
[7] Article 19-A(1(b) Asylum Act.
[8] Article 19-A(1(c) and Article 2(1)(z) Asylum Act.
[9] Article 19-A(1(d) and Article 2(1)(r) Asylum Act.
[10] Article 19-A(1(e) Asylum Act.
[11] Article 19-A(1(f) Asylum Act.
[12] Article 20(1) Asylum Act.
[13] Article 33(4) Asylum Act.
[14] Article 33-A(5) Asylum Act.
[15] Article 24(4) Asylum Act.
[16] Articles 20(2) and 26(4) Asylum Act. However, according to information gathered by CPR in the course of 2021, SEF seems to consider that the deadline prescribed in article 33-A(5) Asylum Act is not mandatory and that elapsing of such a deadline without a decision being issued with regard to the admissibility/merits (accelerated procedure) does not entail admission to the regular procedure. Such an understanding seems to be at odds with an adequate interpretation of the provision and is not in line with the generalised practice in this regard.
[17] Article 16 Asylum Act.
[18] These figures may include a low number of inadmissibility decisions issued already in the first quarter of January, as the data collection is made through date of application and not date of decision (which also means that decisions issued in 2023 regarding applications made in prior years are not included).
[19] However, as mentioned in Statistics, AIMA reported that only 281 such decisions have been adopted in 2023. This figure is not compatible with CPR’s experience and observation.
[20] In what seems to be a wrong interpretation of the concept of exclusion given that, despite resorting to the institute of exclusion, in the decisions analysed, the authorities do not substantiate that an exclusion clause is verified, but merely that the inclusion requirements are not verified.
[21] Article 16(1)-(3) Asylum Act.
[22] Article 16(5) Asylum Act.
[23] Article 33-A Asylum Act.
[24] TCA South, Decision 139/21.9 BELSB, 23 September 2021, available at: https://tinyurl.com/3hzeyywd. Note that, while the decision systematically refers to subsequent applications, it is indeed analysing the rules applicable to asylum applications made following a removal order (article 33-A Asylum Act).
[25] Articles 22(1), 25(1), 33(6) and 37(4) Asylum Act and Article 95(3) Code of Procedure in Administrative Courts.
[26] Articles 22(1), 25(3) and 37(6) Asylum Act.
[27] Articles 33(8) and 33-A(8) Asylum Act, respectively.
[28] Articles 22(2), 25(2), 33(7) and 37(5) Asylum Act.
[29] Again, by providing country of origin information, Dublin country information, guidance on legal standards, or other expert opinion.