This request for a preliminary ruling was made in proceedings between Lebanese nationals, J.B., S.B. and their daughter F.B., and the Federal Republic of Germany, concerning the rejection of their applications for asylum as inadmissible. S.B and F.B. were rejected in May 2010, a second application lodged by J.B. was rejected in October 2010. In March 2011, the applicants left Germany voluntarily and returned to Lebanon. They entered Germany again in 2021 and requested asylum on 11 February 2021, arguing that the situation in Lebanon had changed after their return. By decision of 11 August 2021, their applications were declared inadmissible, they were ordered to leave Germany, failing which they would be removed to Lebanon, and imposed a ban on entry and residence for 30 months from the date of that removal.

The referring court, the Administrative Court of Minden, noted that the applicants did not submit new facts or evidence justifying the initiation of a further asylum procedure. The state argued that the applications of 11 February 2021 should be considered ‘subsequent applications’ within the meaning, inter alia, of Article 2(q) and Article 33(2)(d) of the recast Asylum Procedures Directive and that a return to the country of origin is not sufficient to establish a new element or finding.

The Administrative Court of Minden referred the following questions to the CJEU for a preliminary ruling:

1. Must Article 33(2)(d) of Directive 2013/32/EU be interpreted as precluding a national rule under which a further application for international protection must be refused as inadmissible irrespective of whether the applicant concerned returned to his or her country of origin after an application for international protection was rejected and before a further application for international protection was made?

2. In the context of the answer to Question 1, does it make any difference whether the applicant concerned was removed to his or her country of origin or returned there voluntarily?

3. Must Article 33(2)(d) of Directive 2013/32/EU be interpreted as precluding a Member State from refusing a further application for international protection as inadmissible where, although a decision on the granting of subsidiary protection status was not taken by way of the decision on the earlier application, grounds preventing removal were examined, and that examination is comparable in substance to the examination as to the granting of subsidiary protection status?

4. Are the examination of grounds preventing removal and the examination as to the granting of subsidiary protection status comparable where, in the examination of grounds preventing removal, it was necessary cumulatively to examine whether, in the country to which the applicant concerned is to be removed, he or she faces:

(a) a real risk of torture or inhuman or degrading treatment or punishment;

(b) a risk of being subjected to the death penalty or execution;

(c) a risk of being the subject of an infringement of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights – ECHR);

or (d) a real and significant threat to his or her life and limb or freedom;

or whether he or she

(e) is exposed, as a member of the civilian population, to a significant individual threat to life or limb in the context of an international or internal armed conflict?

The CJEU noted that the temporary return to the country of origin after the rejection of an application for international protection has no bearing on the classification of a further application for asylum as a ‘subsequent application’ within the meaning of Article 2(q) of the recast Asylum Procedures Directive and the mere fact that the applicant returned to the country of origin, voluntarily or was removed, does not preclude the rejection of a subsequent application as inadmissible.

With regard to the remaining two questions, the court noted that Germany created an autonomous subsidiary protection status on 1 December 2013 and that the concept of ‘subsequent application’, within the meaning of Article 33(2)(d) of the recast Asylum Procedures Directive, relates to the existence of a previous final decision establishing whether the applicant is entitled to subsidiary protection status. The court concluded that even though the decisions on the previous applications did not concern the grant of subsidiary protection status, they were adopted following an examination of the existence of grounds prohibiting expulsion in accordance with the Law on residence of foreign nationals, comparable to the examination carried out with a view to granting that status. The court thus concluded that Article 33(2)(d) of the recast Asylum Procedures Directive allows the rejection of a subsequent application as inadmissible where the decision on the previous application did not concern the granting of subsidiary protection status, but was adopted following an examination of the existence of grounds prohibiting removal and that examination was comparable, in substance, to the examination carried out with a view to granting subsidiary protection.