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The Asylum Act envisages that a foreigner whose asylum application has been rejected on the merits ‘may submit a subsequent asylum application if:
- they can provide evidence that the circumstances relevant to recognising their right to asylum have changed substantially or;
- if they can provide any evidence that they did not present in the previous procedure due to justified reasons.’[1]
The precondition for the subsequent application is that the initial application was rejected by a final decision as unfounded or discontinued due to applicant’s failure to appear for the asylum interview.[2] The applicant must provide all the above and bring forward evidence in a comprehensible manner.[3] The Asylum Office shall assess the admissibility of subsequent applications in line with the new facts and evidence, and in connection with the facts and evidence already presented in the previous asylum procedure.[4]
If it has been established that the subsequent asylum application is admissible, the competent authority shall revoke the previous decision. On the contrary, the subsequent asylum application shall be rejected if it has been established that it is inadmissible due to a lack of new evidence. The decision on a subsequent application will be issued within 15 days from the date of the application.[5]
What is important to note is that, since the institute of subsequent asylum application has been introduced in the Asylum Act from 2018, not a single applicant successfully lodged it.
In 2018, there was one case where the family A. from Libya was allowed to submit the subsequent application, but in line with the old Asylum Act. This was the consequence of the ECtHR communicating their case to the Government of Serbia.[6] In 2020, only 2 subsequent applications were submitted, while in 2021 a total of 11 subsequent asylum applications were lodged: Iran (6), Bulgaria (3), Cameroon (1) and Pakistan (1). All subsequent applications were rejected as unfounded and all applicants were already on the territory of the Serbia. The same practice continued in 2022 when two subsequent asylum applications were rejected as unfounded. In 2023, 3 subsequent asylum applications from applicants from Bulgaria, Afghanistan and Russia were rejected. The Afghan applicant absconded, the Bulgarian applicant was considered as non-credible prima facie as she had returned to Bulgaria prior to lodging her subsequent asylum application to obtain a new passport, even though she claimed to face ‘risk for her life’.[7]
Two decisions from 2021 are worth mentioning because they were both based on subsequent asylum applications which contained new facts and evidence which were not examined in the initial asylum procedure. The argumentation of the applicants (4-member Iranian family who converted from Islam to Christianity) in the first case referred to the fact that they failed to outline new evidence because they were not aware of such possibility. The impugned evidence was a witness statement of an applicant’s brother as well as decision on refugee status which the brother received in the Netherlands. The Asylum Office emphasized that it is the applicant’s fault that they failed to provide such evidence, and that the fact that they had a legal representative is an additional argument that goes in favour of their position that there is no justification for not bringing that up in the initial procedure.[8] The second case gives serious reasons for concern as it was related to an UASC from Pakistan who lodged his asylum application, but then absconded because his lawyer was not answering his calls. Thus, there was never a decision on his case. After he returned back, he expressed the will to apply for asylum again. However, his subsequent application was rejected, without taking into account the motivations he presented. The essence of the reasoning behind the reject decision was that he had legal representatives who should have ensured that he outlined all the evidence. Also, the argument that his case has never been examined on the merits, but simply discontinued was completely ignored. This further means that subsequent applications can only be considered as theoretical and illusory in case of absconding, but also in case of inadequate legal representation.[9] The unfortunate outcome is that both the Iranian family and Pakistani UASC left Serbia and it is not possible to assess how the higher instance authorities would have decided in these cases.
In 2022, two similar cases, this time also involving a national security assessment by BIA, were discontinued because they were not provided with adequate legal support in their initial asylum procedure.
In a 2022 case of Turkish Political activist,[10] the applicant failed to underline an entire set of crucial evidence which indicate his political persecution in Türkiye. His lawyer failed to fill out the asylum application form. He did not prepare the applicant for the hearing while in extradition detention either, nor did he conduct CoI research and submitted the CoI report. After asylum application and the ensuing appeal were rejected, the lawyer failed to lodge a complaint to the Administrative Court and the case was discontinued.
In another case from 2022, a legal representative cancelled the power of attorney granted to him by a Kyrgyz national who was in extradition detention, before his asylum hearing. When realizing that he did not have legal representative the distressed applicant refused to take part in his asylum hearing, which was conducted in extradition detention. As a result, his asylum procedure was discontinued.[11]
Both applicants, with the help of their new legal representatives, decided to lodge subsequent asylum application outlining now in details with an entire set of facts which were not put forward in their past procedures, but also some new facts which arose in the meantime. As it was the case in subsequent asylum procedure of the Pakistani boy, the Asylum Office outlined the following.
- the facts outlined were not new
- the fact that applicants had legal representatives in previous asylum procedure was taken as a safeguard that applicants were able to outline all the crucial facts, but there was not assessment of their competence and commitment
- the incompetence of legal representatives was not considered at all as the argument for subsequent application.
In the case of the Kyrgyz national, where the first instance procedure was concluded before the first instance decision was issued, it is clear that the Asylum Office never took into consideration a single fact which corroborated his alleged persecution and, instead, declared that the facts set forth in the subsequent asylum application were insufficient. In other words, the Asylum Office denied the applicant of the possibility to have his case examined on the merits.
The decisions rejecting their subsequent asylum applications were confirmed by the Asylum Commission[12]. It is worth mentioning that, in both cases, the CAT indicated interim measures to the Government of Serbia. Both measures were lifted after their extraditions were rejected by Serbian Courts. While the complaint presented by the Kyrgyz national to the Administrative Court of is still pending; on 12 January 2024, the complaint from the Turkish national was instead rejected.[13]
As for 2023, it is worth mentioning that the circumstances which arose with regards to Russian aggression on Ukraine were not consider as new circumstances in the subsequent application of Russian national who never claimed his anti-war sentiment and risk of mobilization in his initial asylum procedure. The Asylum Office claimed that he did not provide any evidence which would corroborate such claims, but the question that remains open is if this assessment was supposed to be done during the examination of the admissibility of subsequent asylum application, or in the newly reopened asylum procedure.[14]
There were no instances in which applicants who had been returned to their countries of origin came back to Serbia and lodged subsequent applications. Applicants who lodge subsequent applications are considered to be asylum seekers and are entitled to material reception conditions.
[1] Article 46(1) Asylum Act.
[2] Ibid.
[3] Article 46(2) Asylum Act.
[4] Article 46(3) Asylum Act.
[5] Article 46(4), (5) and (6) Asylum Act.
[6] ECtHR, A. and Others v. Serbia, Application No 37478/16, Communicated on 12 December 2017.
[7] Asylum Office, Decision No. 26-1637/20, 31 January 2023.
[8] Asylum Office, Decision No. 26-2404/18, 7 June 2021.
[9] Asylum Office, Decision No. 26-3229/19, 21 May 2021.
[10] Asylum Office, Decision No. 26-1247/21, 30 August 2022.
[11] Asylum Office, Decision No. 26-2052/21, 23 August 2022.
[12] Asylum Commission, Decision Nos. AŽ 24/22, 12 October 2022 and AŽ 27/21, 7 November 2022.
[13] Administrative Court, Judgment U 80/23, 12 January 2024.
[14] Asylum Office, Decision No. 26-1529/18, 27 October 2023.