On the 25th of May 2023, the Court of Justice of the European Union (CJEU) ruled in its judgment C-364/22. The case concerns three Lebanese nationals, who claimed asylum in Germany but their applications were rejected, and they voluntarily returned. In 2021, the applicants applied for asylum again and their applications were rejected due to the lack of new facts justifying further asylum procedures hence Germany issued deportation orders and entry bans in their respect. In the course of the proceedings, the referring court submitted preliminary questions to the CJEU.
The CJEU first held that a temporary return is not a relevant criterion under the Asylum Procedure Directive to determine whether a further application constitutes a subsequent application and so may be rejected as inadmissible. The Court ruled that Article 33(2)(d) of the Asylum Procedures Directive must be interpreted as not precluding the rejection of a subsequent application as inadmissible irrespective of the fact that (i) the applicant returned to his country of origin after his application for international protection was refused and before he made that subsequent application and (ii) the return was voluntary or forced.
The CJEU then noted that the German legislature did not create an autonomous subsidiary protection status until 1 December 2013. Therefore, the decisions on the previous applications did not concern the grant of subsidiary protection status but were adopted following an examination of the existence of grounds prohibiting expulsion as mentioned under German law, which is comparable to the examination to grant subsidiary status. The Court concluded that Article 33(2)(d) must be interpreted as not precluding the rejection of a subsequent application as inadmissible where the decision on the previous application did not concern the granting of subsidiary protection status but was adopted following an examination of the existence of grounds prohibiting removal and that examination is comparable, in substance, to the examination with a view to grant that subsidiary protection status.