A.N., a Ukrainian national, applied for international protection in 2018, claiming to have left his country of origin to avoid military conscription. The Office for Foreigners rejected his application in July 2018. A.N. exhausted legal remedies, but his appeals were dismissed at all stages.

A.N. then submitted a subsequent application for international protection, which the Office for Foreigners found inadmissible in September 2020. In July 2021, the decision was upheld by the Refugee Council, who stated that the subsequent application did not reveal any elements that had not been already examined during A.N.’s first application and that would increase probabilities of international protection being granted.

A.N. challenged the decision before the Voivoideship Administrative Court in Warsaw, who also dismissed the appeal, stating that the applicant had not raised any new circumstances or indicated new evidence that would significantly increase the likelihood of being granted international protection, thus confirming the Refugee Council’s decision.

The applicant filed a cassation appeal, citing a violation of both procedural rules and substantive law provisions. While the cassation appeal was ongoing, A.N. also submitted another application for international protection, and was granted subsidiary protection by the Office for Foreigners in January 2023.

The Supreme Administrative Court noted that, in accordance with Article 38 of the Act on Granting Protection to Foreigners, the determining authority should conduct a preliminary examination upon receiving subsequent applications. This preliminary examination should examine the circumstances raised and considered during the first application and whether the subsequent application contains new evidence or factual or legal circumstances that would significantly increase the likelihood of granting international protection. In the absence of new elements, the subsequent application would be considered inadmissible. The court then stated that the Voivodeship Administrative Court in Warsaw’s judgment was correct as it pointed out that no new elements that would increase the probability of being granted international protection had been identified in A.N.’s subsequent application.

The court also pointed out that the Russian invasion of Ukraine took place after the contested judgment was issued. The court, citing Article 46 of the Asylum Procedures Directive, noted that Member States should ensure that effective remedies provide a full ex nunc consideration of both facts and legal elements, including international protection needs in line with the Qualification Directive, and concluded that these provisions also apply to subsequent applications. The court also noted that a full ex nunc examination carries an obligation to assess new circumstances that emerged since a decision was issued as well as the circumstances that the determining authority should have taken into account, if these occurred after the decision was issued.

The Supreme Administrative Court concluded that in A.N.’s case, the commencement of hostilities in Ukrainian territory would require a full ex nunc examination, which is coherent with the fact that A.N. was granted subsidiary protection in the second subsequent application in October 2022.