Author
The law provides for specific features in the Admissibility Procedure of subsequent applications, including:
- a time limit of 10 days for the adoption of an admissibility decision at first instance i.e., to conduct a preliminary assessment;[1]
- the absence of automatic consequences in case of non-compliance with the time limit for deciding on admissibility;
- reduced guarantees regarding the right to a personal interview and to seek revision of the narrative of the personal interview;[2]
- specific criteria for assessing the admissibility of the claim;[3] and
- partially different time limits and effects of (onward) appeals.[4]
The Asylum Act does not provide for specific rules regarding the right to remain on the territory pending the examination of the application,[5] or the suspension of a removal decision,[6] nor does it provide specific time limits or limitations on the number of subsequent applications a person can lodge.[7] Nevertheless, an ‘unjustified’ subsequent application can lead to the Reduction or Withdrawal of Reception Conditions.[8]
The National Director of SEF/Board of AIMA is the competent authority to take a decision on the admissibility of subsequent applications.[9]
The analysis of admissibility of a subsequent claim must determine:
- whether new elements of proof have been submitted, or
- if the reasons that led to the rejection of the application have ceased to exist.[10]
The law does not provide further clarification on what is to be considered as a new element of proof or on how to assess cessation of the rejection motives. The preliminary admissibility assessment also applies to cases where the applicant has explicitly withdrawn their application and where SEF/AIMA has rejected an application following its implicit withdrawal.[11]
Given the usually low number of subsequent applications, it is difficult to ascertain relevant practical guidance.
A first instance decision on the admissibility of a subsequent application from 2016 referred to a ‘substantial and fundamental’ difference as criteria for assessing the admissibility of the subsequent application. Several first instance decisions from 2018 referred to ‘any event occurred since prior decisions at first instance and appeal stages [were adopted]’, ‘new elements of proof regarding the alleged facts’, and that the ‘absence of new facts is also enhanced by the fact that according to his statement the applicant did not return to his country of origin or left European soil since his last application’. According to the available information, more recent decisions do not offer further guidance with regard to the interpretation of the relevant concepts.
Recent case law has failed to provide guidance in this regard.[12] However, it has been ruled that facts that were not presented during the initial application without reason cannot be considered as new facts. In the same case, the Court also conducted an analysis – echoing SEF’s first instance assessment – of whether the new facts stated by the applicant constitute relevant grounds for a well-founded risk of persecution, which seems to be at odds with the admissibility assessment at hand.[13]
The limited number of subsequent applications registered does not allow for a general assessment of existing obstacles in lodging a subsequent application. According to data provided by AIMA, 29 were made in 2023.[14] Figures of previous years were typically below or around 10.
According to information collected by CPR, in recent years, subsequent applicants are generally provided a personal interview to assess whether new elements were submitted.[15] Such an interview tends to differ from those conducted in the admissibility/accelerated/regular procedure insofar as it mainly seeks to ascertain new facts, evidence, or changes in circumstances related to persecution since the presentation of the initial asylum application. The reasoning of inadmissibility decisions generally includes an assessment of the existence, credibility and relevance of new facts and changes in circumstances since the presentation of the initial asylum application. The evidentiary value of documents and other elements of proof submitted, as well as the inconsistencies between the information provided and the facts described in the context of the original application, are usually analysed.
The information available to CPR indicates a typically low success rate of subsequent applications.
The Asylum Act provides for an appeal against the decision to reject a subsequent application (see Admissibility Procedure: Appeal). The time limit for lodging the appeal is 4 days.[16] The initial appeal has automatic suspensive effect,[17] as opposed to onward appeals that have no automatic suspensive effect.[18]
With regard to access to free legal assistance for asylum seekers during the preliminary admissibility assessment and at appeal stage, the general rules and practice of the regular procedure apply (mutatis mutandis given the specific changes in the procedure, e.g., the possible absence of a personal interview, see Regular Procedure: Legal Assistance).
In practice, CPR is not aware of systemic or relevant obstacles faced by asylum seekers to appealing a first instance decision on the admissibility of a subsequent application.
In 2023, STA adjudicated a case on the relationship between Dublin cases and subsequent applications. The applicant in the case had been issued a transfer decision to Germany following a take back request (article 18(1)(d) Dublin Regulation), accepted by the German authorities. The appeal court (TCA South) stated that, if the applicant based his asylum application in Portugal on new facts, this was not the adequate solution and the application should be analysed as a subsequent application. TCA South considered that in the case analysed the applicant had in fact invoked introduced/relied on new facts and it concluded that the asylum authority should have conducted an analysis of such facts and assessed whether the grounds for the decision taken by the German authorities persisted.
STA considered that the applicant merely restated facts previously invoked to the German authorities and did not refer explicitly to any change that had occurred in the meantime in the country of origin. As such, STA concluded that the application could not be deemed as a subsequent one. The Court further stated that in order for such an application to be deemed as a subsequent one, the applicant did not have to qualify it as such but they bear the burden of referring to the change of circumstances. STA emphasised that the administrative authority has no obligation to assess moto proprio whether a change of circumstances occurred in the country of origin. The Court further added that the Portuguese authorities would never be competent to adjudicate such a subsequent application, due to the responsibility criteria of the Dublin Regulation.[19]
[1] Article 33(4) Asylum Act.
[2] Article 33(2), (4) and (6) Asylum Act.
[3] Article 33(1) and (6) Asylum Act.
[4] Article 33(6) Asylum Act.
[5] Articles 13(1) and 33(9) Asylum Act.
[6] In this case it should be understood that the general rule providing for the suspension of a removal order until a final decision is reached in the asylum application applies: Article 12(1) Asylum Act.
[7] Article 33(1) Asylum Act, according to which the asylum seeker is entitled to present a new application whenever there are new elements in light of the first asylum procedure.
[8] Article 60(3)(f) Asylum Act. The Asylum Act does not provide criteria to assess whether a subsequent application is unjustified. CPR is not aware of internal guidance used by the authorities to perform such assessment either.
[9] Article 33(6) Asylum Act.
[10] Article 33(1) Asylum Act.
[11] Article 2(1)(t) Asylum Act.
[12] TAC Lisbon, Decision 1748/18.9BELSB, 26 November 2018, unpublished.
[13] A similar approach was followed in a 2019 judgement of TAF Porto that noted that a subsequent application should only go beyond the preliminary evaluation if there are new facts, circumstances or evidence that by themselves show that it is likely that the applicant is eligible for international protection. TAF Porto, Decision 649/18.5BELSB, 17 January 2019, unpublished.
[14] Data collected by CPR based on communications made by the authorities according to the Asylum Act indicates a total of 31 subsequent applications made in 2023.
[15] Article 33 Asylum Act states that subsequent applications are submitted to SEF with all available supporting evidence and that SEF may, following the application, provide the applicant with a reasonable time limit to present new facts, information or evidence.
[16] Article 33(6) Asylum Act.
[17] Ibid.
[18] Article 33(8) Asylum Act.
[19] STA, Decision 03319/22.6BELSB, 9 November 2024, available at: https://tinyurl.com/mrfv7fnw. A summary of this decision is available in the EUAA case-law database (see: https://tinyurl.com/mrymd9sf). One of the STA judges adjudicating the case dissented, considering that (1) the applicant invoked new and sufficient facts to qualify their the application as a subsequent application; (2) the applicant alleged that a return decision was pending in Germany, and that, as such, the national authorities could and should analyse the case taking into account the principle of non-refoulement.