Analysis: “L.R: An Asylum Application made to Norway is not an ‘Application for International Protection’ under EU law” by Janine Silga
Since its inception, the Common European Asylum System (CEAS) has kept revealing its blind spots. This is especially true in light of its fragmented geography, which includes some non-EU Member States, while not all EU Member States fully participate in it. One obscure point consists in the precise meaning of a ‘subsequent application’. According to Directive 2013/32 (‘Procedures Directive’), this notion refers to an application for international protection made ‘after a final decision has been taken on a previous application’.
This concept lies at the heart of the Court of Justice’s L.R. decision of 20 May 2021 (C-8/20). In this case, a third-country national had applied for international protection in Germany in December 2014. Prior to that, he had claimed asylum in Norway in 2008. This earlier request had been rejected in 2009 and the applicant was surrendered to the authorities of his country of origin in 2013.
At first, the German Office for Migration and Refugees considered that Norway was responsible for examining the second request for asylum on the basis of Regulation 604/2013 (The ‘Dublin Regulation’). However, Norway declined responsibility, relying on Article 19(3) of the Regulation. According to this provision, an asylum application made after the effective removal of a rejected applicant from the EU territory ‘shall be regarded as a new application giving rise to a new procedure for determining the Member State responsible’.
The German Office then considered that the application lodged in Germany was a ‘subsequent application’ in view of the former application lodged in Norway and that it was inadmissible.
In this case, the Court of Justice had to clarify whether this application could be considered a ‘subsequent application’, insofar as EU law defines an application for international protection as ‘a request made by a third- country national (…) for protection from a Member State’. The main difficulty was that Norway is not an EU Member State, although it implements the ‘Dublin Regulation’.
In its decision, the Court adopts a literal reading of the relevant EU law provisions and concludes that the application made in Germany is not a ‘subsequent application’ because Norway is not an EU Member State. While this solution may seem formalistic, it is also logical. Although Norway is part of the ‘Dublin system’, it does not apply the other instruments of the CEAS, including the ‘Procedures Directive’ itself. The Court, however, refrains from stating that the Norwegian asylum system is not equivalent to the CEAS. It merely refuses to assess it to preserve legal certainty. In doing so, the Court reaches a conclusion opposed to the Opinion of Advocate General Saugmandsgaard Øe.
This pragmatic approach answers the most pressing issue of the case. However, this cautious solution is not without gaps. First, the Court does not further examine the definition of a ‘subsequent application’. In particular, the Court does not address the underlying question as to whether a ‘subsequent application’ has to be made before the same Member State to be regarded as such. This is what the Commission suggests but this is also what the principle of mutual trust or reciprocal ‘confidence’ might contradict as the Advocate General highlighted. Besides, the Court does not clarify the relation between the notions of ‘new application’ in the Dublin Regulation and ‘subsequent application’. While the Advocate General’s explanation is not entirely clear on this point, this might have deserved closer attention from the Court. Indeed, it is understandable that a ‘new application’ exists mainly in relation to the Dublin procedure. And yet, how long shall an application for international protection be considered ‘subsequent’ when it is made, not only after the applicant was – forcibly – returned to their country but also more than six years after the first application?
The lack of guidance from the Court on these tricky issues is regrettable. However, this silence is also telling about the loopholes and diverging national practices that are still affecting the CEAS to date.
Janine Silga is a postdoctoral researcher at the University of Luxembourg. Her recent publications include: ‘Le droit au regroupement familial des réfugiés mineurs non accompagnés devenus majeurs: l’affaire A et S, entre progrès incontestable et portée relative’ (European Papers); and ‘Luxembourg Financial Aid for Higher Studies and Children of Frontier Workers: Evolution and Challenges in Light of the Case-Law of the Court of Justice’ (European Public Law).