C-8/20: AG Saugmandsgaard gives opinion on the compatibility of inadmissibility provisions with Article 33 of the Asylum Procedures Directive

Thursday, March 18, 2021

On 18 March 2021, Advocate General Saugmandsgaard published an opinion in case C-8/20 concerning the interpretation of a ground for inadmissibility under Article 33 of the Asylum Procedures Directive (2013/32).

The request for preliminary ruling arose in proceedings between L.R., an Iranian national, and the Federal Republic of Germany concerning the legality of a decision to reject L.R.’s application for international protection based on the fact the L.R. had previously submitted an unsuccessful application for international protection in Norway and had been subsequently removed to Iran by the Norwegian authorities. The referring court seeks clarification on whether an application for international protection can be classified as a ‘subsequent application’ within the meaning of the Procedures Directive where the procedure which led to the rejection of an earlier application took place, not in another EU Member State, but in Norway.

AG Saugmandsgaard first considered the applicability of Article 33(2)(d) of the Asylum Procedures Directive in cases where the applicant has been removed to his or her country of origin before reapplying for international protection. The AG pointed to other provisions such as Article 2(q) of that directive as well as the Dublin III Regulation but noted that the responsibility of Norway for the applicant had ceased upon the completion of his removal to his country of origin. In that regard, the AG concluded that if Germany were obliged to examine the application, it would not prejudice the objectives the Dublin III Regulation. Consequently, the AG inferred that the application, in these circumstances, must be regarded as a ‘new application’.

The AG then considered the alternative; the applicability of Article 33(2)(d) where the applicant seeks international protection in a Member State other than that which adopted the previous negative final decision. The AG opined that in the context of the combined application of the Procedures Directive and the Dublin III Regulation, it is possible, by virtue of the principle of mutual trust for a Member State to adopt provisions in national law which can declare an application for international protection as a ’subsequent application’ where it  has not itself  adopted the final decision rejecting an earlier application by the same applicant but has become the Member State responsible for examining the later application. Nevertheless, the AG again noted that where an effective removal has taken place between the previous final rejection decision and the new application, the Member State will not enjoy this discretion.
Finally, the AG considered that where the examination of an application for international protection in a third state such as Norway, is subject to the guarantees required by EU law, the person concerned enjoys a level of protection that is at least as high as that of other Member States. As such, he considered that the fact that the final negative decision on an earlier application by the applicant was taken by Norway cannot, in itself, prevent a Member State, such as Germany in this case, from declaring a 'subsequent application' by the same applicant inadmissible under Article 33(2)(d) of Directive 2013/32.

In conclusion, the AG suggested that the Court interpret Article 33(2)(d) of Procedures Directive, read in conjunction with Article 2(q) of that directive, as meaning that an application for international protection cannot be declared inadmissible as a 'subsequent application' where the applicant has been removed to his country of origin before submitting it.

Based on an unofficial translation by the EWLU Team.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Inadmissible application