CJEU - XY v Bundesamt für Fremdenwesen und Asyl, Case C-18/20, 09/09/2021

Facts:

An Iraqi citizen with Muslim Shia faith lodged an application for international protection at the Austrian Federal Office for Immigration and Asylum in July 2015. The application got dismissed in January 2018 and the decision became final in September 2018 after the Austrian Constitutional Court dismissed the legal remedies against this decision.

In his application for international protection as well as in his appeal, the applicant claimed that he would fear for his life when returned to Iraq because he refused to fight for the Shia militia and that his country is still in war. In December 2018, the applicant lodged a second application for international protection claiming that he did not mention that he is homosexual and that that was the real reason for his application for international protection in the first procedure. Due to his sexual orientation, he would have to fear for his life in Iraq because homosexuality is forbidden in his religion. Only through the support of an association after his arrival in Austria, with whom he got in touch in June 2018, did he realise that he would not be persecuted if he is coming out with his homosexuality.

The Federal Office for Immigration and Asylum dismissed the applicant’s second application for international protection in 2019 on the grounds of § 68 para. 1 of the domestic General Administrative Procedure Act (AVG) according to which the modification of an administrative decision is not subject to appeal when the decision is final. Additionally, the Federal Office for Immigration and Asylum issued a return of the applicant to Iraq and an entry ban to Austria for two years.

The applicant appealed before the Federal Administrative Court of Austria. The Court upheld the appeal only regarding the entry ban to Austria and otherwise dismissed the appeal since the applicant did not mention his homosexuality in his first application for international protection; that decision became final and thus obstructed the recognition of the new element. The applicant appealed before the High Administrative Court of Austria claiming that he brought a new element for the examination of whether he qualifies as a beneficiary of international protection which does not ground on his homosexuality but on the fact that he is able to articulate that because of his stay in Austria.

According to the High Administrative Court of Austria, the admissibility of a second application for international protection must be examined by the provisions pursuant to the AVG due to a lack of specific regulations in domestic law. Accordingly, § 68 para. 1 AVG rejects, in principal, requests for modifications of an administrative decision for reasons of decision final. Domestic case-law does only justify a new procedure for a second application for international protection if facts or evidences emerge which bring a significant change of the circumstance of the applicant. New facts or evidence can only reopen a proceeding if it was not the applicant’s fault that he was not able to bring them up during the first proceeding and which alone or in connection with other results of the proceeding so far were likely to result in an administrative decision different from the main contents of the decision (§ 69 para. 1 AVG). Against this backdrop, the High Administrative Court of Austria submits the following questions for preliminary decision:

1)     Does the scope of new elements or findings which have arisen or which have been presented by the applicant pursuant to Article 40(2) and (3) of the Asylum Procedure Directive encompass circumstances which have been available before the legally binding decision of the first application for international protection?

2)     If so: Is it sufficient in such cases that an applicant for international protection can ask for a reopening of the formerly finally ruled procedure?

3)     Can the Austrian authority dismiss the subsequent application on the grounds of domestic legislation if it is the applicant’s own fault that he did not bring new evidence in the former asylum procedure even though if the Member State did not implement the provisions pursuant to Article 40(2) and (3) of the Asylum Procedure Directive and, therefore, exercise the right for an exemption of a further examination of the subsequent application according to Article 40(4) of the Asylum Procedure Directive?

Decision & reasoning:

Regarding the first question, the Court holds that new elements or findings under the Asylum Procedure Directive are those which were not considered during the examination of the first procedure for international protection and which thus do not refer to that final decision. Subsequent applications consist of new elements or findings which are new, i.e. which have arisen after the final decision, but also of new elements and findings, i.e. which have been presented by the applicant for the first time [§ 36]. From the wording in Article 40(2) and (3) of the Asylum Procedure Directive, the Court interprets that elements and findings are new according to this Directive, if the decision of the former application for international protection became final without the element or finding being expressed before the relevant authorities; the provision does not differentiate whether the elements or findings, on which the subsequent application grounds, have arisen before or after the final decision [§ 37]. Therefore, new elements or findings which have arisen or have been presented by the applicant according to Article 40(2) and (3) of the Asylum Procedure Directive are such elements or findings which have arisen after the decision became final but also such which existed before the decision became final but which have not been presented by the applicant [§ 40].

Regarding the second question, the Court holds that Article 40(3) of the Asylum Procedure Directive must be interpreted in the way that the proceeding of the first application for international protection can be reopened if the domestic provisions for reopening of a proceeding are compliant with Chapter II of this Directive and if there is no expiry period to file such reopening request. The examination of subsequent applications consists of two phases: the first phase concerns the admissibility and the second phase the examination of the substance of the application. However, the Directive does not foresee a specific procedural scope; Article 40(3) only stipulates that the further examination shall be in conformity with Chapter II of this Directive. Therefore, the Member States can have procedural provisions as long as they are compliant with the provisions set in this Directive [§ 48]. Given the removal of a limited period to file a subsequent application according to Article 34(2)(b) from the former Asylum Procedure Directive (2005/83/EU) in the current Asylum Procedure Directive, Article 42(2) of this Directive does not allow Member States to foresee such a limited period [§ 58]. Article 5 of this Directive confirms this interpretation by stating that Member States may introduce or retain more favourable standards on procedures for granting and withdrawing international protection insofar as those standards are compatible with this Directive and thus rules out lesser favourable provisions [§ 59]. Therefore, Article 42(2) of this Directive forbids Member States to foresee a limited period to file a request for reopening a proceeding.

Regarding the third question, the Court holds that Article 40(4) of the Asylum Procedure Directive must be interpreted in the way that Member States which did not implement special provisions to transpose this Directive are not allowed to dismiss the examination of a subsequent application on the grounds of domestic legislation if the new elements or findings on which this application is based on already existed during the former procedure on the grounds that it was the applicant’s own fault that they have not been presented in the first proceeding. According to Article 40(4) of the Asylum Procedure Directive, Member States may provide that the application will only be further examined if the applicant concerned was, through no fault of his or her own, incapable of asserting the new elements or findings in the previous procedure set out in paragraph 2 and 3. However, the effectiveness of Article 40(4) depends on whether Member States have any specific implementing provisions in this regard; this provisions alone thus has no immediate effect if it is not specifically implemented in domestic law [§ 65].

Outcome:

1.      Article 40(2) and (3) 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 meaning that the concept of ‘new elements or findings’ which ‘have arisen or have been presented by the applicant’, within the meaning of that provision, includes elements or findings which arose after the procedure relating to a previous application for international protection was definitively concluded and elements or findings which already existed before the procedure was concluded, but which were not relied on by the applicant.

2.      Article 40(3) of Directive 2013/32 must be interpreted as meaning that the substantive examination of a subsequent application for international protection may be conducted in the context of the reopening of the procedure concerning the first application, provided that the rules applying to that reopening comply with Chapter II of Directive 2013/32 and that the lodging of that application is not subject to compliance with time limits.

3.      Article 40(4) of Directive 2013/32 must be interpreted as not permitting a Member State which has not adopted specific measures transposing that provision to refuse, in accordance with the general rules of national administrative procedure, to examine the substance of a subsequent application, where the new elements or findings relied on in support of that application existed at the time of the procedure concerning the previous application and were not presented in the context of that procedure through the fault of the applicant.

Observations/comments:

This summary was written by Sebnem Meryem Danaci, LLM student at Queen Mary University.