The request for a preliminary ruling was lodged before the CJEU by the Administrative Court in Austria, in the context of a dispute between XY and the Federal Office for Immigration and Asylum (Bundesamt für Fremdenwesen und Asyl, BFA) concerning the rejection of XY's application for international protection. XY, an Iraqi national of Shia Muslim faith, argued that he feared persecution because he refused to fight for Shiite militias and that his country was still at war. His request was rejected on 29 January 2018, and he subsequently lodged another application in which he argued that he, in fact, feared persecution due to his homosexuality. This subsequent application was rejected as inadmissible. On appeal, the Federal Administrative Court held that XY failed to disclose his homosexuality during the investigation of the first application and that the res judicata principle prohibits the authorities from considering this factual element. Upon revision, the Administrative Court requested the CJEU to determine whether the concept of new elements or facts under the recast Asylum Procedures Directive, Article 40 (2) and (3), refers only to elements or facts that have newly arisen or also includes those alleged by the applicant that already existed before the final closure of an earlier proceeding.

The CJEU concluded that new elements or facts which ‘have arisen or have been presented’ include elements or findings which arose after the procedure relating to a previous application was definitively concluded and which already existed before the procedure was concluded, but which were not relied on by the applicant. Citing LH v Staatssecretaris van Justitie en Veiligheid (C-921/19, 21 June 2021), the court held that such an interpretation was furthermore respectful to the principle of res judicata: the examination of whether a subsequent application is based on new elements or findings should be confined to ascertaining whether, in support of that application, there are elements or findings which were not examined in the context of the decision taken and on which that decision could not be based.

The court also noted that the national provision transposing Article 40 of the recast Asylum Procedures Directive included an additional criterion not provided in the directive: a time limit of two weeks to submit the subsequent application, calculated from the moment the person becomes aware of the new fact that would reopen the case. The court held that Article 40 does not authorize the Member States to fix time limits for lodging a subsequent application, thereby implying that it prohibits fixing such deadlines.

Finally, the court also interpreted Article 40 (4) of the recast Asylum Procedures Directive as meaning that it does not allow a Member State, which did not transpose this provision, to refuse to examine the substance of a subsequent request, when the new elements or facts relied on existed at the time of the previous proceedings and were not presented within the framework of this procedure due to a fault attributable to the applicant.

See also the CJEU's press release here.