A man, whose asylum application had been finally rejected by the Federal Asylum Office, based a follow-up application on a reason not given before: He was threatened with persecution at home because of his homosexuality. The new application was rejected – wrongly, according to the ECJ.
An Iraqi has won a dispute with the Austrian authorities about the admissibility of a follow-up asylum application before the European Court of Justice (ECJ). According to EU law, the resumption of the asylum procedure should not – as in Austria – be made dependent on the application being submitted within a certain period, the judges decided on Thursday in Luxembourg (case C-18/20).
The Iraqi national, whose first application for protection had been finally rejected by the Federal Office for Immigration and Asylum, filed a follow-up application for international protection with the authorities a few months later. He had based his first application on the fact that he would fear for his life if he returned to Iraq because he had refused to fight for Shiite militias.
In his follow-up motion, however, he suddenly asserted that the real reason for his motions was his homosexuality, which was forbidden in his country and his Islamic religion. He claimed that at the time of his first application in Austria he did not yet know that he had nothing to fear there because of his sexual inclinations, and therefore did not dare to state that as a reason to flee.
The Federal Asylum Office rejected the follow-up application as inadmissible because it questioned the earlier negative and already legally binding decision. The Iraqi and his legal assistants, on the other hand, took the view that his follow-up motion for a different reason should have led to the opening of new proceedings, and sued.
Legally interesting to tricky
Against this background, the Administrative Court asked the ECJ in Luxembourg to interpret the EU directive on asylum procedures. The ECJ has now ruled that the opening of a new procedure on the basis of changed submissions should not be rejected on the grounds that a period in this regard had passed, that the new allegations could have been made earlier and that the applicant was at fault.
This is, however, from a legal point of view interesting and even tricky: In proceedings before administrative authorities and courts, it is typically impossible to force the resumption of a completed proceeding by submitting new evidence, facts or allegations that could have been made during the proceedings, but which one could had not done anything through no fault of his own – for example, because the existing evidence or fact was not known.
“The special situation of people who had to flee their home country because of their sexual orientation, gender characteristics or gender identity must also be taken into account in the asylum procedure. Today’s judgment by the ECJ is a further step in the right direction,” said the foreign policy spokeswoman of the Greens, Ewa Ernst-Dziedzic.
(APA/ed.)