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 rendered within 15 days from the date of the application.[5]
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.
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 implied that they failed to outline the new evidence because they were not aware that such possibility. This 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 outlined 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.[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 was never 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 the COVID-19 pandemic as an extremely vulnerable and traumatized applicant who suffered from Albinism. A 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 the Asylum Office 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.
The arguments of the Pakistani subsequent applicant were rejected and the essence of the reasoning 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 in 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.[8]
Additional two decisions from 2022 can be outlined as similar to those from 2021, but with an element of the national security assessment of BIA. Namely, in both of the cases applicants did not enjoy adequate legal support by incompetent attorneys at law in their initial asylum procedure and in both cases their asylum procedures were discontinued.
In the case of Turkish Political activist,[9] the applicant failed to underline an entire set of crucial evidence which indicate his political persecution in Türkiye. His lawyer was unable to fill out a very simple asylum application form, he did not prepare him for the hearing while in extradition detention, nor he did CoI research and submitted the CoI report. In the end, after asylum application was rejected as well as the appeal, the lawyer failed to lodge complaint to the Administrative Court and the case was discontinued.
In another case of Kyrgyz national,[10] the applicant was also in extradition detention and before his asylum hearing, his lawyer cancelled the power of attorney. When realized that he does not have legal representative, and in the context of asylum hearing conducted in extradition detention, the applicant refused to take part in the hearing due to distress. This was also the reason why his asylum procedure was discontinued.
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 Kyrgyz national, where the first instance procedure was concluded before the first instance decision was rendered, it is clear that Asylum Office has never taken in consideration a single fact which could indicate to the persecution but declared that the facts outline in subsequent asylum application were insufficient. In other words, Asylum Office denied the applicant the possibility for his case to be examined in merits.
Decisions on rejection of subsequent asylum applications were confirmed by the Asylum Commission[11] and both cases are currently pending before the Administrative Court. What is also common for these two cases is that CAT has imposed interim measures to the Government of Serbia.
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. 26-2404/18, 7 June 2021.
[8] Asylum Office, Decision No. 26-3229/19, 21 May 2021.
[9] Asylum Office, Decision No. 26-1247/21, 30 August 2022.
[10] Asylum Office, Decision No. 26-2052/21, 23 August 2022.
[11] Asylum Commission, Decision Nos. AŽ 24/22, 12 October 2022 and AŽ 27/21, 7 November 2022.