Author
General (scope, criteria, time limits)
The admissibility procedure is set out in Article 57/6(3) of the Aliens Act. The CGRS can declare an asylum application inadmissible where the asylum seeker:
- Enjoys protection in a First Country of Asylum;
- Comes from a Safe Third Country;
- Enjoys protection in another EU Member State;
- Is a national of an EU Member State or a country with an accession treaty with the EU;[1]
- Has made a Subsequent Application with no new elements; or
- Is a minor dependant who, after a final decision on the application lodged on his or her behalf, lodges a separate application without justification.
The CGRS must decide on inadmissibility within 15 working days. Shorter time limits of 10 working days are foreseen for subsequent applications or even 2 working days for subsequent applications in detention.
In 2022, the CGRS took 4,253 inadmissibility decisions.[2]
Personal interview
Since the procedure that leads to a decision of inadmissibility does not in itself differ from the regular procedure, other than the time period in which a decision has to be made, the same legal provisions apply to the interview taken by either of the two instances.
A regular interview for the lodging of the asylum application takes place at the Immigration Office.[3] Although there is no explicit legal obligation to enquire specifically and proactively about potential new elements in case of a subsequent asylum application or about conditions which oppose a Dublin transfer, the officer at the Immigration Office is explicitly obliged under the Royal Decree on Immigration Office Procedure to take into consideration all elements concerning those two aspects, even if they are invoked only after the interview.[4]
At the CGRS, the regular personal interview about the facts underlying the asylum application has to take place in the same level of detail as is the case for other asylum applications. The interview may be omitted where the CGRS deems it can take a decision on a subsequent application based on the elements in the file.[5]
Appeal
An appeal against an inadmissibility decision must be lodged within 10 days, or 5 days in the case of a subsequent application by an applicant being detained in a specific place in view of their removal from the territory (a place as described in art. 74/8 and 74/9 of the Aliens act).[6] The appeal has an automatic suspensive effect, except for some cases concerning Subsequent Applications.[7]
The CALL shall decide on the application within 2 months,[8] under “full judicial review” (plein contentieux).
Legal assistance
In first instance procedures leading to inadmissibility decisions as well as in the appeal procedures, the general provisions on the right and access to free legal assistance apply. Challenges identified in the provision of legal assistance during the regular procedure also apply to the admissibility procedure (see section on Regular Procedure: Legal Assistance). During some admissibility procedures – like for example the procedure following a subsequent application for international protection – applicants often do not have the right to reception in a centre and stay at a private address (for example with family, friends or solidary citizens). This situation makes it more difficult to qualify for free legal assistance (see Regular procedure: Second line legal assistance). In practice, much fewer procedural interventions by lawyers, in appeals or otherwise, take place in these specific cases.
[1] Note that this ground is not foreseen in Article 33(2) recast Asylum Procedures Directive.
[2] CGRS, Asylum statistics 2022, available in Dutch at https://bit.ly/40JgEqF and in French at: https://bit.ly/3MpATp8.
[3] Article 51/10 Aliens Act.
[4] Articles 10, 16 and 18 Royal Decree on Immigration Office Procedure.
[5] Article 57/5-ter(2) Aliens Act.
[6] Article 39/57(1)(3) Aliens Act.
[7] Article 39/70 Aliens Act.
[8] Article 39/76(3)(3) Aliens Act.