Background information
If the final decision has been made on the previous application (either a negative decision or a decision granting subsidiary protection), the new application will be registered as a subsequent application and preliminary examination will be carried out to assess the new elements.
The new application will be admissible if new elements significantly add to the likelihood of qualifying as a beneficiary of international protection. In such a case, the subsequent application will be admissible and the examination of the claim will be continued.
The application will be inadmissible if new elements are not provided by the applicant or new findings do not arise. In such an event, the determining authority will not examine the applicant’s claim on the merits (113).
The right to remain in the host country during the examination may be restricted if the applicant has already benefited from a thorough examination of two or more applications for international protection which were rejected (114).
The right to remain in the host country during an appeal against inadmissibility may be restricted. Depending on the national law, the applicant may have the right to remain in the territory during the appeal procedure or at least until a court decides on their right to remain (115).
If the subsequent application is lodged merely to frustrate removal and found inadmissible, Member States may make an exemption to the right to remain as soon as such a subsequent application is found inadmissible pending the decision of the appeal authority (116).
The authorities can only proceed with the return decision if the return does not lead to direct or indirect refoulement.
Consult national legislation regarding the time limits applied in case of a subsequent application.
(113) Article 40(2), (3) and (5) APD (recast) ‘Subsequent application’: '2. … a subsequent application for international protection shall be subject first to a preliminary examination as to whether new elements or findings have arisen or have been presented by the applicant which relate to the examination of whether the applicant qualifies as a beneficiary of international protection … 3. If the preliminary examination … concludes that new elements or findings have arisen or been presented … the application shall be further examined in conformity with Chapter II. … 5. When a subsequent application is not further examined pursuant to this Article, it shall be considered inadmissible, in accordance with Article 33(2)(d)'.
(114) Article 41(1) APD (recast) ‘Exceptions from the right to remain in case of subsequent applications’: 11. Member States may make an exception from the right to remain in the territory where a person: a. has lodged a first subsequent application, which is not further examined pursuant to Article 40(5), merely in order to delay or frustrate the enforcement of a decision which would result in his or her imminent removal from that Member State; or b. makes another subsequent application in the same Member State, following a final decision considering a first subsequent application inadmissible pursuant to Article 40(5) or after a final decision to reject that application as unfounded. Member States may make such an exception only where the determining authority considers that a return decision will not lead to direct or indirect refoulement in violation of that Member State’s international and Union obligations'.
(115) Article 46(8) APD (recast) ‘The right to an effective remedy’.
(116) Article 41(1), point (a) and 41(2), point (c) APD (recast) ‘Exceptions from the right to remain in case of subsequent applications’.
Related EUAA tool
For more information please refer to the EASO, Practical Guide on Subsequent Applications, December 2021.
Explain these messages to the applicant during the registration/lodging:
- The previous application has been concluded and their new application is going to be assessed as a subsequent application. The subsequent application is not another chance to appeal against the previous decision but an opportunity to present new elements, either new events that happened after the previous application was rejected or new evidence or documents related to the reasons the applicant cannot return to their country, which could not be presented before.
- The procedural steps. Firstly, the application must be registered again. Secondly, the authority will assess the new elements. This assessment is called a preliminary examination. It can conclude that the subsequent application is either admissible or inadmissible. Inform the applicant about the time frame of the preliminary examination.
- If it is in line with national practice, the examination can be carried out solely based on the written submissions, without a personal interview (117).
- The timeframe for the decision on subsequent application according to the national legislation (118).
- The rights and obligations of an applicant for international protection and consequences if not complying with the obligations.
- The obligation to substantiate. Stress that it is important that the applicant tell the officials as soon as possible off any new information as to why they need protection and cannot return to their country and all documents or evidence that support they need for protection.
- How the new elements and explanations can be submitted in line with national practice.
- The applicant can be also asked to explain why the new elements were not submitted earlier and how, if applicable, the new elements relate to (a) previous application(s).
- If relevant in your national context, the right to remain in the host country may be restricted and the reception conditions can be reduced or withdrawn.
Explain these messages to the applicant if the application is inadmissible:
- the examination will end and the application will not be further examined.
- the applicant will be notified of the decision that explains why the application will not be further examined.
- the possibility to appeal and the time limits.
- If applicable, that the right to remain in the host country will be restricted or that the right to remain in the host country has now ceased and the return procedure will be initiated if it complies with the principle of non-refoulement.
Explain these messages to the applicant if the application is admissible:
- the application will be examined on the substance (as in the regular procedure).
- the timeframe for the examination according to the national legislation.
- if applicable, provide information provision messages related to the personal interview (for more information, see topic 'Personal interview').
- information provision messages during the notification stage (for more information, see topic 'Notification').
(117) Article 42(2), point (b) APD (recast) ‘Procedural rules’: 'Member States may lay down in national law rules on the preliminary examination pursuant to Article 40. Those rules may, inter alia: a. permit the preliminary examination to be conducted on the sole basis of written submissions without a personal interview, with the exception of the cases referred to in Article 40(6)'.
(118) Article 31(8), point (f) and 31(9) APD (recast) ‘Examination procedure’.