The Court of Justice of the European Union has ruled that the rejection by an Austrian court of a request to review an application for international protection that had already been subject to a final decision on the grounds that not all the elements had been provided at the outset is not in conformity with EU law.
Austria cannot refuse to reopen proceedings on the grounds that the request for review was not made within a certain time limit, i.e. two weeks under Austrian law, the Court of Justice said in a judgment on 9 September (Case C-18/20).
The case concerns an Iraqi national whose first application for international protection, filed in 2015, was definitively rejected in January 2018 by the Bundesamt für Fremdenwesen und Asyl (Austrian Federal Office for Immigration and Asylum), the Court recalls.
At the end of 2018, this Iraqi submitted a subsequent application for international protection to the same authority. “Whereas he had based his first application on the fact that he feared for his life if he returned to Iraq, on the grounds that he had refused to fight for Shiite militias (himself a Shiite Muslim) and that Iraq was still at war, he now argued that the real reason for his applications was his homosexuality, which would be forbidden by his country and his religion”.
He explained that at the time of the first application, he did not yet know “that he would not have risked anything in Austria by disclosing his homosexuality”, the Court said.
However, the Bundesamt für Fremdenwesen und Asyl rejected this later application and declared it inadmissible because it challenged a previous refusal decision that had become res judicata.
According to Austrian law, any subsequent application based on elements or facts already existing before the adoption of the final decision that closed the previous proceedings can only lead to the reopening of these proceedings, and this only if the applicant was not at fault in failing to invoke them in the previous proceedings. But only elements or facts that have newly occurred after the adoption of the initial final decision can justify the opening of a new procedure.
In this case, the Austrian court held that the applicant had erred in not presenting all the facts at the outset, namely that he was gay. The Court of Justice was therefore called upon to interpret the Directive on common procedures for granting international protection (2013/32/EU).
In its judgment, it states that the examination on the merits of a subsequent application for international protection based on elements or facts already existing before the final closure of the first procedure, may, in principle, allow the procedure to be reopened, provided that these new elements or facts significantly increase the likelihood that the applicant will qualify as a beneficiary of international protection and that the applicant was, through no fault of his or her own, unable to assert them in the previous procedure.
However, such a reopening may not be subject to the condition that the subsequent application has been submitted within a certain period.
Austria has also failed to transpose the optional provision of the Directive mentioned above, which allows Member States, in the case of new proceedings, to provide for the further examination of the subsequent application only if the applicant concerned was unable, through no fault of his or her own, to establish the new elements or facts in the previous proceedings, even though they already existed.
It is therefore not possible for it to refuse to open the new proceedings on the grounds that such an error can be imputed to the applicant.
Link to the judgment (in French): https://bit.ly/3tpMGbq (Original version in French by Solenn Paulic)