Germany, CJEU, J.B. and Others v Bundesrepublik Deutschland, C 364/22, 25 May 2023.

Facts:

The applicant (J.B), a Lebanese national, first entered Germany in November 2000 and applied for asylum. The application was rejected as manifestly unfounded in December 2000. Consequently, the applicant was removed to Lebanon in August 2001.

In March 2010, the applicant entered Germany again with his family (S.B and F.B) and made a new asylum application. The German authorities rejected these applications, given that the family did not meet the conditions for refugee status and there were no grounds against their removal from the territory.

Following the decision, the applicants voluntarily left Germany and returned to Lebanon in March 2011

In January 2021, the applicants entered Germany again and submitted a new asylum application, arguing that the situation in Lebanon was no longer safe. These applications were declared inadmissible and categorised as “subsequent applications”. Following that, the authorities ordered the applicants to leave the country, or they could be removed to Lebanon, and imposed a 30-month entry ban.

The applicants appealed the decision, arguing that the situation in Lebanon had changed since their return in 2011.

The referring court, noting that the applicants had not provided new facts or evidence to justify a further asylum procedure, suspended their removal order and referred the case to the CJEU to clarify how the rules regarding "subsequent applications" should be applied.

Decision & reasoning:

Questions 1 & 2:

Under Article 33 (2) of Directive 2013/31, a list of situations is provided where Member States can reject an asylum application as inadmissible, which includes “subsequent applications” that do not show new elements and findings. The Court stated that the Directive does not include an applicant's temporary return to their country of origin as a relevant criterion for deciding if an application is inadmissible. (para 32)

The Court rejected the arguments based on the Dublin III Regulation, clarifying that while a return after an effective removal is considered to be a “new application” under the Regulation, it is only applied to determine which Member State is responsible for processing the application, not its admissibility. (para. 37)

Following the Court’s finding that the temporary return of an applicant for international protection is irrelevant, the nature of the return, voluntary or forced, is equally irrelevant. (para. 39)

The Court ruled that under Article 33(2)(d) of Directive 2013/31, a Member State can reject a subsequent application for international protection as inadmissible, regardless of whether the applicant returned to their country of origin after the decision or whether the return was forced or voluntary. (para. 40)

Questions 3 & 4:

The Court acknowledged that Germany did not have a specific “subsidiary protection status” until December 2013, but the German authorities used the exact evaluation framework that Directive 2005/83 provided to determine the grounds prohibiting removal. (para. 42)

The Court ruled that even though German law did not explicitly contain the phrase “by reason of indiscriminate violence” found in the EU Directive, the case-law and administrative practice showed that the national law was interpreted to include all the Directive’s criteria. (para. 44)

Following this, the Court ruled that Article 33 (2)(d) does not preclude a Member State from rejecting a subsequent application as inadmissible even if the prior decision did not specifically concern the granting of subsidiary protection status, as long as the previous decision was adopted following an examination of grounds prohibiting removal that is comparable in substance to the examination carried out to grant subsidiary protection status. (para. 47)

Outcome:

On those grounds, the Court (Seventh Chamber) hereby rules:

1. Article 33(2)(d) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection must be interpreted as not precluding the rejection of a subsequent application for international protection as inadmissible irrespective of (i) the fact that the applicant returned to his or her country of origin after his or her application for international protection was refused and before he or she made that subsequent application for international protection and (ii) whether that return was voluntary or forced.

2. Article 33(2)(d) of Directive 2013/32/EU must be interpreted as not precluding a Member State from rejecting a subsequent application for international protection as inadmissible where the decision on the previous application did not concern the granting of subsidiary protection status, but was adopted following an examination of the existence of grounds prohibiting removal and that examination is comparable, in substance, to the examination carried out with a view to granting that status.

Subsequent proceedings:

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.