The applicant, Iraqi national, was rejected asylum in Latvia by decision of 30 November 2021, following which the Office of Citizenship and Migration Affairs adopted the decision of 24 March 2022 concerning the removal of the applicant and an entry ban of 6 months. On 8 April 2022 the applicant submitted a subsequent application and by decision of 20 April 2022, the Office suspended the implementation of the removal decision until a final resolution of the application for asylum but left the content of the removal decision unchanged. The applicant submitted an appeal against the decision of 20 April 2022, arguing that his removal is contrary to the non-refoulement principle and invoked that he has fears of returning due to his sexual orientation and that he did not reveal this information previously due to fear.

The determining authority had first rejected the application for asylum as not credible, due to inconsistencies and the subsequent application was considered as abandoned. The appeal submitted with the request to have the substance of his subsequent application examined was also rejected. He submitted a second subsequent application and by administrative court decision of 7 October 2022, the determining g authority was obliged to analyse the merits of the application. The determining authority shared with the administrative court an opinion on the documents submitted by the applicant in October 2022.

The administrative court upheld the appeal and annulled the contested decision. The court noted that the applicant ‘s allegations with regard to his sexual orientation were assessed by the determining authority as being implausible and proceeded to assess whether the applicants’ statements on danger and risks in the country of origin, related to his non-traditional sexual orientation is plausible, and focused in particular on whether inconsistencies in the applicant’s story can be explained by his reluctance to reveal his sexual orientation during the initial asylum procedure. The court referred to the EASO Judicial Analysis Evidence and Credibility Assessment in the context of the Common European Asylum System (2018) and to the CJEU judgment of 10 June 2021, in case C-921/19. The court concluded that the applicants’ statements with regard to his sexual orientation and his membership of the particular social group of homosexuals are credible. The court consulted also the CJEU judgement of 7 November 2013, in cases C-199/12 to C-201/12, X, Y and Z and also referred to the EUAA COI Report: Iraq, targeting individuals, February 2022, and the EUAA Asylum Report 2022.

With regard to the situation in the country of origin, the court found that there is objective reason to believe that, by revealing his sexual orientation, the applicant’s life or health may be exposed to a real risk of acts contrary to Articles 2 and 3 of the ECHR.

The court annulled the contested decision to order the removal of the applicant as unlawful. Since the applicant’s forced expulsion was not lawful, the contested decision must also be declared unlawful in the part of the entry ban imposed on the applicant in the Republic of Latvia and the Schengen territory. In addition, the court clarified that if a subsequent application is allowed for substantive examination, it is to be expected that the original removal order issued against the applicant is annulled too.