The applicant brought an action against the order of the Deputy National Director of the Aliens and Borders Service (SEF) which declared inadmissible the application for international protection and ordered the applicant’s transfer to Germany, as this was the member State considered responsible for examining the application. The first appeal was dismissed by the Lisbon Administrative Court on 14 December 2022, which ruled that it was not apparent from the facts established that the applicant had lodged a subsequent application for international protection because he had new means of proof or because the circumstances on the basis of which he made his initial application had changed. Against that judgment the applicant brought an appeal before the Central Administrative Court (Tribunal Central Administrativo – TCA Sul) which, by judgment of 29 June 2023, upheld the appeal, annulled the contested act and ordered the SEF to admit the applicant’s application for international protection as a subsequent application. The Public Prosecutor’s Office before the Central Administrative Court (Tribunal Central Administrativo – TCA Sul) lodged an appeal on a point of law before this Supreme Administrative Court, arguing that it should be admitted on the ground that there was a question of social relevance of fundamental importance and for a better application of the law.

The Supreme Administrative Court allowed the appeal and set aside the appealed judgment of the Central Administrative Court (Tribunal Central Administrativo – TCA), maintaining the judgment of the Lisbon Administrative Court. The court held that the applicant’s request was not based on new facts, since he merely repeated the facts which he had already stated before the German authorities and made no express reference to changes which have occurred in the meantime in the country of origin, so the application cannot be classified as a claim based on the ‘emergence’ of new facts and, consequently, does not constitute a subsequent application. The court held that it is not for the authorities to proceed of their own motion to verify the emergence of changing conditions in the country of origin, without such changes being invoked by the applicant. The court referred to the CJEU judgments in the cases C-18/20 and C-921/19 to note that the presentation or emergence of new elements or evidence in the context of a subsequent application always refers to elements adduced by the applicants for international protection and not to elements collected or added of their own motion to the procedure by the authorities responsible for examining and deciding the application.

Thus, the Supreme Administrative Court held that when the application presented by an asylum applicant, who has already had an application assessed and rejected previously in another Member State, is not based on new facts, but merely repeats the facts already stated in the previous application, and does not make any express reference to changes that have since occurred in the context of the country of origin, the legally required conditions for classifying this request as a subsequent request are not met, under the terms and for the purposes of the provisions of Article 33(1) of the Asylum Law.