The Asylum Act envisages that a foreigner whose asylum application has been rejected on the merits “may submit a subsequent asylum application if he or she can provide evidence that the circumstances relevant to recognising his or her right to asylum have changed substantially or if he or she can provide any evidence that he or she 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 rendered within 15 days from the date of the application.[5]
In the 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.
Two decisions 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 applicants (4 member Iranian family who converted from Islam to Christianity) in the first case implied that they failed to outline the new evidence because they were not aware that such possibility. This evidence was a witness statement of applicant’s brother as well as decision on refugee status which the brother received in the Netherlands. The Asylum Office outlined that it is the applicant’s fault that they failed to provide such evidence, and that the fact that they had legal representative is an additional argument that goes in favour of their standing that there is no justification for not brining that up in the initial procedure.[7]
The second case gives serious reasons for concern because 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 has never been a decision on his case. After he returned back, he expressed his will to apply for asylum again. The argumentation which was provided by his legal representatives was the following:
- he was in mental distress due to COVID-19 pandemic as an extremely vulnerable and traumatized applicant who suffered from Albinism. Psychological report was provided to support this claim
- he outlined new facts which he did not outline in his asylum application because he changed two lawyers and none of them spent more than 1 hour in total in preparation for asylum request. For that reason, the very asylum request did not contain all relevant facts
- the very fact that Asylum Office has never decided on his asylum application, but simply discontinued his asylum procedure due to his absconding, implies that asylum authorities have never even considered facts and evidence that he outlined in his first asylum application, but also newly provided facts and evidence which he provided after through legal counselling.
Arguments of Pakistani subsequent applicant was rejected and the essence of the reasoning was that applicants had legal representatives who should have secured that he outlines all the evidence. Also, the argument that his case has never been examined in merits, but simply discontinued were 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.[8]
There were no instances in which applicants who had been returned to their countries of origin came back to Serbia and lodged subsequent application. Applicants who lodge subsequent application 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. 26-2404/18, 7 June 2021.
[8] Asylum Office, Decision No. 26-3229/19, 21 May 2021.