XY v Bundesamt für Fremdenwesen und Asyl, 2021 (CJEU)

Case C-18/20, XY v Bundesamt für Fremdenwesen und Asyl, Judgment of the Court, 9 September 2021, ECLI:EU:C:2021:710

Official summary

EU law precludes a subsequent application for international protection from being rejected as inadmissible on the sole ground that it is based on circumstances which already existed during the procedure relating to the first application. In addition, the reopening of the first procedure in order to examine the substance of the subsequent application cannot be subject to the condition that that application has been lodged within a certain time limit.

ELENA summary [ELENA Weekly Legal Update – 10 September 2021]

C-18/20: CJEU rules that new elements in a subsequent application can include pre-existing circumstances and should not be subject to time limitations

On the 9th September 2021, the CJEU released its judgment on the referred case of XY v Bundesamt für Fremdenwesen und Asyl. This case concerns an Iraqi national who applied for asylum in Austria on the basis that his life was in danger due to his refusal to join and fight for Shiite militias and the internal situation caused by war in Iraq. This application was rejected and on subsequent application the applicant presented that he was homosexual as a new ground for reopening his case. This claim was rejected on first instance and on appeal with the reasoning that although the applicant did not rely on this information in his previous application, the circumstance is not new and so does not amount to new and substantial evidence.

The applicant took this decision to the Upper Administrative Court in Austria, who referred three preliminary questions to the CJEU, which concerned the interpretations of Art 40 (2-4) of the Procedures Directive. The Court answered the first question in the affirmative and set out that Article 40 (2) and (3) must be interpreted as meaning that new elements or facts arisen or have been submitted includes new elements or facts which already existed before the closure of the previous procedure that were not relied on by the applicant.

A further issue for the Court in this case, was the extent to which the Directive was transposed effectively into Austrian law. The CJEU found that although most of Article 40 was transposed in Article 69 of the AVG, this provision added a third condition which outlined that a time limit of two weeks must be followed for applicants to submit a subsequent application after becoming aware of the grounds for reopening a case. The CJEU held that Article 40 of the Procedures Directive does not provide for such time limits and when read in the light of Article 33 (2) prohibits Member States from subjecting the lodging of subsequent applications to full-limitation periods.

A final issue considered in this judgment was the interpretation of the 4th paragraph of Article 40 and the ability of Member States to exclusively examine the new facts if they were not presented due to an absence of fault of the applicant. The Court firstly determined that the wording “may provide” used in Art 40(4) makes it an optional provision and therefore depends on the transposition in to national law. Therefore, the CJEU concludes that this provision must be interpreted as not allowing a Member State which has not transposed the provision to refuse to examine the substance of a subsequent application where the new elements existed in the previous proceeding but were not submitted due to the fault of the applicant.

(Based on an unofficial translation by the EWLU team.)

Press release available here.

Advocate-General Opinion available here.