The case was registered before the CJEU under C-123/23

The applicants are stateless Palestinians from the Gaza Strip entered the Federal Republic of Germany on 11 November 2019 and sought asylum on 15 November 2019. Their formal asylum applications were registered by the Federal Office for Migration and Refugees on 22 November 2019. A Eurodac query by the Federal Office resulted in category 1 hits for the first applicant for Spain and Belgium. A take-back request by BAMF to the Spanish authorities was refused by letter dated 28 November 2019. No take-back request was made to the Belgian authorities.

Following a request for information, the Belgian authorities answered in a letter dated 5 March 2021 that the first applicant’s application for international protection of 21 August 2018 had been rejected on 5 July 2019 after an examination of the grounds for asylum and that no appeal had been lodged against that decision. According to the documents sent to the Federal Office by the Belgian authorities, the rejection of the application was based, among other things, on the fact that it had not been credibly demonstrated that the first applicant was threatened with persecution or serious harm in her country of origin. Upon her return to the Gaza Strip, she could call upon the support of UNRWA.

By decision of 25 May 2021, the BAMF rejected the applicants’ asylum applications as inadmissible, determined that there were no removal bans pursuant to Paragraph 60(5) and the first sentence of Paragraph 60(7) of the Law on residence and the applicants can be removed to the Gaza Strip. The BAMF concluded this way based on the following: pursuant to Paragraph 71a(1) of the Law on asylum no further asylum procedure was to be carried out. The asylum procedure pursued by the applicants in Belgium had been concluded unsuccessfully. There were no grounds for reopening the procedure pursuant to Paragraph 51(1) to (3) of the Law on administrative procedure. Neither the factual and legal circumstances had changed, nor had the applicants submitted new evidence.

The applicants appealed against that decision on 9 June 2021 and claimed that as a single or divorced woman, the first applicant faced considerable discrimination in the Gaza Strip. In particular, violence against women was socially legitimised and access to medical care and work was limited. Additionally, the precarious conditions in the Gaza Strip would not allow them to meet their basic living expenses. The applicants highlighted a complicating factor that there was no family support in the Gaza Strip and it was not expected that UNRWA would provide adequate support. The applicants claimed that Belgian authorities had failed to examine this aspect thoroughly enough. Regardless of this, it was de facto impossible for them to return to the Gaza Strip and again place themselves under the protection of UNRWA. On that basis, the applicants claimed that they should be granted refugee status as stateless Palestinians in accordance with Paragraph 3(3) of the AsylG and Article 1(D) of the Refugee Convention (ipso facto protection).

The Regional Administrative Court of Minden ordered on 31 August 2021 the suspensive effect of the action against the threat of removal contained in the contested decision, with the principal argument that, on the basis of the observations of the European Commission (‘the Commission’) on the concept of ‘subsequent application’ in Case C-8/20, which the CJEU did not address in detail in those proceedings, there were serious doubts as to whether Paragraph 71a of the AsylG was compatible with EU law.

The administrative court of Minden referred the following question before the CJEU for a preliminary ruling:

Must Article 33(2)(d) of Directive 2013/32/EU, read in conjunction with Article 2(q) of that directive, be interpreted as precluding legislation of a Member State under which an application for international protection lodged in that Member State is to be rejected as inadmissible if an application for international protection previously lodged in another Member State has been finally rejected by that other Member State as unfounded?