An Iraqi national requested asylum in Germany at the beginning of March 2017 after having previously applied for international protection in Finland where the asylum authority rejected the application in May 2016. The appeal procedures in Finland were unsuccessful, and the applicant was notified on 5 April 2017. In Germany, the Federal Office for Asylum and Migration (BAMF) rejected the application as inadmissible in April 2017 after the Finnish authorities accepted a take back request. The Administrative Court of Berlin annulled this decision in March 2018, and Germany became responsible to process the application.

By decision of 31 August 2018, the BAMF rejected the application as inadmissible on grounds that pursuant to Section 71a of the Asylum Act, the application was a subsequent one since the asylum procedure conducted in Finland was unsuccessful. The BAMF issued a one-week time limit for a voluntary return, a threat of deportation to Iraq and an entry ban of 36 months from the day of return. Upon an appeal, the Administrative Court annulled the BAMF decision of 31 August 2018, and the Higher Administrative Court of Berlin-Brandenburg upheld this decision, dismissing the onward appeal submitted by the BAMF. The Higher Administrative Court essentially ruled, contrary to the BAMF arguments, that the application was not to be considered as ‘subsequent’ because the conditions stipulated in Section 71a of the Asylum Act on ‘second application’* were not met. Specifically, according to the wording of this article, an asylum application is deemed subsequent ‘after the unsuccessful conclusion of an asylum application in a safe third country’. This means that the condition is fulfilled only when the asylum procedure has been concluded in the other country by a final and binding decision, at the time when the asylum application is lodged in Germany. The court held that this was not the case here since the application in Germany was submitted prior to a final decision in Finland, for which Germany became responsible later.

In an appeal on points of law, the BAMF argued that that the application must have been considered as subsequent application, alleging that, to assess whether there is an unsuccessfully concluded asylum procedure in a safe third country, the time of the transfer of responsibility must be taken into account, at least in cases in which international responsibility for examining an asylum application is transferred to Germany only after it has been filed.

The Federal Administrative Court dismissed BAMF’s appeal on points of law. It affirmed that the asylum application submitted in Germany was not filled "after the unsuccessful conclusion of an asylum procedure in a safe third country", since the asylum procedure in Finland had not already been completed at the time of the asylum application in Germany.

It recalled that Article 33(2)(d) in conjunction with Article 2(q) of the recast Asylum Procedures Directive (APD) does not preclude legislation of a Member State under which an application for international protection within the meaning of Article 2(b) of the recast APD may be rejected as inadmissible if it has been lodged in that Member State by a third-country national or stateless person whose application was previously lodged in another country which is bound by the same directive.

Also, a subsequent application, within the meaning of Article 33 (2)(d) in conjunction with Article 2(b) of the recast APD, may be rejected as inadmissible in the absence of new elements or circumstances submitted by the applicant. Moreover, the concept of ‘subsequent application’ under Article 2(q) of the recast APD refers to a further application which is lodged after a final decision has been adopted on an earlier application, within the meaning of Article 2(e) of the recast APD. The same applies when a further application is made after the applicant has expressly withdrawn their previously submitted application or if the determining authority has rejected such an application after the tacit withdrawal by the applicant pursuant to Article 28 (1) of the recast APD. In view of the above, the Federal Administrative Court concluded that there was no indication of a restriction related to subsequent applications in the same Member State. 

The court based its decision on the CJEU findings in the judgment N.A.K. and Others v Bundesrepublik Deutschland (joined Cases C-123/23 and C-202/23, 19 December 2024) in which it held that Article 33(2)(d) in conjunction with Article 2(q), (b) and (e) of the recast APD does not require that a new application for international protection must be lodged with the authorities of the same Member State which issued the final decision on an earlier application by the same applicant. This is confirmed also in the wording of Article 40(7) of the recast APD on the interplay with the Dublin procedure, which refers to a new application made in the Member State that requested the transfer after the Member State to which the person concerned is to be transferred has issued a decision on a previous application lodged by the same applicant.

Recalling the Recital 13 of the recast APD, the court emphasised that this interpretation appeared consistent with the objective of discouraging secondary movements of applicants for international protection between Member States.

Turning to the national provision of Section 71a of the Asylums Act, the court held that it equates the second application with the concept of subsequent application under the EU law and the asylum decision adopted in other Member State with a decision taken in Germany. The provision stipulates that an asylum procedure is conducted on grounds of a second application only when Germany is responsible for examining the application and there is a ground for resumption (which include ‘a considerable change to the circumstances in the country of origin, or new evidence becoming available which may lead to the individual in question being placed in danger should they return to their country of origin- see BAMF information). In this context, the court affirmed that the applicant’s request for asylum could not be regarded as second application within the meaning of Section 71a of the Asylum Act.

The court contended that a second application exists if, after the unsuccessful conclusion of an asylum procedure in a safe third country which is bound by the EU provisions for conducting an asylum procedure or with which Germany has concluded an international treaty on this matter, submits an asylum application in Germany within the meaning of Section 26a of the Asylum Act. While it noted that the applicant submitted an application in Germany, however this submission was done before the unsuccessful conclusion of the asylum procedure initiated in Finland. First, it noted that Finland is considered a safe third country within the meaning of Section 71a(1) of the Asylum Act and in which both the Dublin III Regulation and the recast APD apply. Second, the condition ‘after the unsuccessful completion of an asylum procedure’ within the acceptation of Section 71a of the Asylum Act presupposes that the previously lodged application was rejected by the determining authority of the safe third country and that decision became final at the time of the further application in Germany. Same applies when the applicant has tacitly withdrawn his or her application for international protection or has not continued the procedure, which has been discontinued after the deadline for its reopening, or a new application has lapsed.

Recalling the CJEU judgment in N.A.K. and Others v Bundesrepublik Deutschland, the court affirmed that a second application under the asylum law, which can be rejected as inadmissible without a substantive assessment in the absence of new elements, and which is subject to the procedure stipulated under Section 71a(1) first sentence, presupposes that an unsuccessful asylum procedure has been completed in a safe third country. The court clarified that the only decisive factor for qualifying an application for international protection as a ‘subsequent application’ under Article 2(q) of the recast APD or as a ‘second application’ under Section 71a of the Asylum Act is the date of lodging of the application. Therefore, it ruled that Section 71a(1) of the Asylum Act requires to take into account the date of the application and, in line with the EU law, it also covers the situation of a further asylum application submitted in Germany after the unsuccessful conclusion of an asylum procedure in another Member State. The relevant point in time for the classification of an application for international protection as a second application within the meaning of Section 71a(1) of the Asylum Act is the date on which the application was submitted and not the date on which the responsibility was transferred to Germany. Consequently, an asylum application submitted by an applicant before the decision becomes final or before the expiry of the reopening period is not a second application and does not become such even after a transfer of responsibility.

The court emphasised that both from a grammatical and a systematic interpretation it results that the legislator referred to the concept of subsequent application when it created the term of ‘second application’, by observing the provisions of the Dublin III Regulation and the recast APD. According to the CJEU, the wording ‘made’ in Article 2(q) of the recast APD means that the date of the formal application is taken into account when assessing whether an application is subsequent within the meaning of this provision.

Also, the court referenced the Advocate General Richard de la Tour opinion in the pending case C-621/24, to hold that Article 2(q) of the recast APD provides that a subsequent application is only the further application which was lodged after the adoption of a final decision on an earlier application, or, in case of withdrawal of an application, after the Member State’s reopening period, thus the concept "subsequent application" does not cover the case in which an applicant submits a new application in another Member State, before the first Member State has taken a final decision on an application previously submitted before its authorities. Moreover, other EU provisions confirm this interpretation. For example, citing the CJEU judgments in XY v Federal Office for Immigration and Asylum (Bundesamt für Fremdenwesen und Asyl‚ BFA) (C-18/20, 9 September 2021) and LH v Staatssecretaris van Justitie en Veiligheid (C-921/19, 10 June 2021) it reiterated that pursuant to Recital 36 of the recast APD, Member States must be able to reject an application as inadmissible based on the principle of res judicata when an applicant submits a subsequent application without presenting any new evidence or arguments, otherwise it would be disproportionate for a Member State to re-conduct the entire international protection procedure.

It recalled also that based on the principle of mutual trust and in case of secondary movements, Member States can give constitutive effect to decision that have been already taken in another country, to avoid disputes on matters that have been already decided and referenced the CJEU judgment in Ibrahim (Joined Cases C‑297/17, C‑318/17, C‑319/17 and C‑438/17, 19 March 2019). This is also in line with the fact that a single Member State must examine the merits of a subsequent application pursuant to the principles of exclusivity and continuity of jurisdiction as enshrined in Articles 3(1), 28(2) and 40(7) of the recast APD and Articles 18 and 19 of the Dublin III Regulation.

The Federal Administrative Court rejected the appeal on points of law submitted by BAMF, thus confirming the Higher Administrative Court judgment.

*See BAMF information on the concept of ‘second application’ under the domestic law: BAMF - Bundesamt für Migration und Flüchtlinge - Initial, subsequent and second applications