Asylum Report 2023

EUROPEAN UNION AGENCY FOR ASYLUM

failure would render the transfer decision irremediably unlawful or should the applicant prove

that the outcome of the transfer decision would have had been different if the requesting

Member State provided the information and held the interview. In relation to the interpretation

of Article 27(1) does the provision of information and the personal interview form part of the

effective remedy, and if so, can a court re-examine the substance of the transfer decision,

even when the requested Member State has accepted its responsibility for the asylum

application?

The French Council of State ruled that an appeal against a refusal to requalify was admissible

only if the person is able to establish that the transfer period had expired or that another new

circumstance had developed.

4.2.4. Decisions on outgoing Dublin requests

Decisions on outgoing Dublin requests include decisions in response

to take back requests (under Articles 18(1b-d) and 20(5) of the Dublin

III Regulation) and take charge requests (under Articles 8-16 and

17(2)), but they exclude decisions taken under the sovereignty clause

(Article 17(1)). Thus, the data on outgoing Dublin requests cover all

persons included in a decision received by the reporting country in

response to a request to have a partner country take responsibility

for the asylum application. This does not mean that the transfer was

necessarily carried out, but it does mean that the partner Member

State replied to the request, whether it was accepted or rejected,

within the time limit or there was an implicit acceptance due to the

expiration of the time limit

In 2022, 163,000 decisions were issued in response to outgoing Dublin requests,^xx according

to provisional data which are regularly exchanged between the EUAA and 29 EU+ countries.^xxi

This represented an increase by more than two-fifths compared to 2021, resulting in the

highest annual total since at least 2016. Since the second half of the year, the number of

decisions steadily rose to an unprecedented level in December 2022. The increase in

decisions coincided with a rise in asylum applications in EU+ countries during the same

period.

Overall, the annual ratio of decisions received on Dublin requests to asylum applications

lodged was 16%, on par with 2021. Although some decisions on Dublin requests concerned

family reunion cases, the stable ratio of decisions to applications suggests that in 2022 an

increased number of asylum seekers moved from the first country of arrival to another to

lodge a new application (referred to as secondary movements), impacting asylum caseloads

overall.

At the country level, Germany and France continued to receive the most decisions in response

to their requests (see the left side of Figure 7), jointly accounting for over three-fifths of the

EU+ total. Germany received almost two-thirds more responses than in 2021, whereas

^xx This includes both decisions on requests and re-examination requests.

^xxi EPS data were not available for Iceland and Liechtenstein.

100

ASYLUM REPORT 2023

responses received by France rose by around one-seventh. Most other countries received

more responses to Dublin requests in 2022, with the most notable relative increases in Spain,

Norway, Cyprus, Austria, Portugal and Czechia (in descending order).^xxiiIn contrast, some

countries received fewer responses in absolute terms, notably Greece, Ireland, Slovakia,

Croatia, Romania and Malta (in descending order).

As in previous years, Italy issued the most decisions overall on Dublin requests. However, for

the first time on record, Austria and Bulgaria emerged as second and third countries issuing

the most decisions, overtaking Germany and Greece (see the right side of Figure 7). While Italy

issued one-third more decisions than in 2021, decisions issued by Austria and Bulgaria almost

tripled compared to the previous year, in fact, rising to the most in at least 6 years.

At lower levels, important relative increases also took place in Lithuania, Cyprus, Portugal,

Croatia and Poland (in descending order).^xxiii Lithuania issued five times as many decisions as

in 2021, decisions by Cyprus more than tripled, and decisions by Croatia, Poland and Portugal

more than doubled from 2021. In contrast, fewer decisions were issued by Romania, Greece

and Germany (ordered from largest to smallest absolute decrease).

Germany and France received the most decisions on Dublin

requests, while Italy responded to the most requests

Figure 7. Decisions on outgoing Dublin requests by selected countries receiving a decision

(left) and responding to a request (right), 2022

Receiving a decision Responding to a request

Bulgaria

Accepted

Poland

Romania

Refused

Spain

Croatia

Greece

Sweden

Slovenia

Italy

Switzerland

Netherlands

Austria

Belgium

France

Germany

65,000 55,000 45,000 35,000 25,000

15,000

5,000

15,000

25,000

Note: The selection of countries includes the Top 10 countries receiving requests and the Top 10 countries

responding to requests. The figure does not include decisions issued and received in 2022 with a reported

‘unknown’ legal basis, which accounted for less than 1% of all decisions received and issued. For each Member

State, received decisions are self-reported, while reported replies are based on data from receiving countries.

Source: EUAA EPS data.

^xxii Only countries which received at least 200 decisions in 2022 were considered.

xxiii

Only countries which received at least 500 decisions in 2022 were considered.

101

EUROPEAN UNION AGENCY FOR ASYLUM

4.2.4.1. Citizenship of applicants in the Dublin procedure

Afghan citizens received the most decisions on Dublin requests in 2022,

accounting for one-quarter of all decisions.^xxiv This was one and a half times as

many as in 2021 (see Figure 8). Decisions for nationals of Syria followed and

surged to an even greater extent, increasing by four-fifths from the previous

year and reaching an unprecedented level.

A rise in decisions on Dublin cases was noted for other nationalities as well. Decisions for Iraqi

and Pakistani nationals increased by one-half from the previous year, and for Turks, the

number more than doubled. For all three nationalities, this was the most in several years.

At lower levels, marked increases in decisions were recorded for nationals of Burundi, India,

the Democratic Republic of the Congo, Armenia and Russia (in descending order).^xxv In

contrast, decisions for Nigerians remained stable at low levels, while those for nationals of

Côte d’Ivoire declined by one-tenth from 2021.

One-quarter of decisions on Dublin requests concerned

Afghan citizens

Figure 8. Top 10 nationalities receiving decisions on Dublin requests, 2022 compared to

2021

2022

Afghanistan

Iraq

Pakistan

Morocco

Nigeria

Syria

Türkiye

Algeria

Guinea

Somalia

Source: EUAA EPS data.

^xxiv Citizenship was not reported in 6% of decisions. In the third quarter of 2022, France started reporting both the

legal basis and the citizenship of applicants who received decisions. This explains the lower level of unreported

citizenships at the EU+ level compared to 2021 (13%) and may account for some of the increases observed for

several nationalities.

^xxv Only citizenships which received at least 1,000 decisions in 2022 were considered.

102

ASYLUM REPORT 2023

4.2.4.2. Acceptance rate for Dublin requests

The acceptance rate for decisions in response to a Dublin request measures the

share of decisions accepting responsibility (explicitly or implicitly) for an

application out of all decisions issued. The overall acceptance rate in 2022 was

60% (6 percentage points higher than in 2021), increasing for the first time in

5 years at the EU+ level.

At the country level, the acceptance rate remained stable or increased from the previous year

in most countries. The most notable increases were in Hungary (+29 percentage points),

Bulgaria (+24 percentage points) and Malta (+16 percentage points). In contrast, a significant

decrease was recorded in Spain (-9 percentage points ).^xxvi Acceptance rates varied from

over 80% in Croatia and Lithuania to 1% in Greece.

4.2.4.3. Decisions on take back and take charge requests

The Dublin III Regulation distinguishes between two categories of

requests: take back and take charge. A Member State may send a

take back request (Articles 18(1b-d) and 20(5)) asking another

Member State to take responsibility for an applicant who applied for

international protection within the reporting country but had already

applied in the first Member State or because the other Member State

previously accepted responsibility through a take charge request.

Conversely, a Member State may send a take charge request

(Articles 8-16 and 17(2)) asking another Member State to take

responsibility for an applicant who has not applied for international

protection in the requesting Member State but criteria under the

Dublin III Regulation indicate that the other Member State should be

responsible. The criteria include family reunion (in particular for

unaccompanied minors), documentation (visas, residence permits),

entry or stay reasons (using information from Eurodac) and

humanitarian reasons.

About 71% of all decisions (with a reported legal basis) issued in EU+ countries in 2022 were

for take back requests.^xxvii This is a decline from the previous year, when decisions on take

back requests accounted for more than three-quarters of the total. However, marked

differences were noted at the country level. In particular, the share of decisions received on

take charge requests was relatively high for Greece (95%) and Cyprus (90%).

^xxvi Only countries which responded to at least 500 requests in 2022 were considered.

xxvii

EUAA data do not contain information on the specific article of the Dublin III Regulation which was used as a

basis for sending a request, but they do distinguish between responses to take charge and take back requests.

Since the second quarter of 2022, data for France are disaggregated according to the type of request, thus the

share of decisions with an unknown legal basis decreased from 30% in 2021 to 12% in 2022.

103

EUROPEAN UNION AGENCY FOR ASYLUM

The acceptance rate for take back requests in 2022 was 57% (8 percentage points higher

than in 2021) and for take charge requests, it was 66% (up by 7 percentage points). The

increase in the acceptance rate for take back requests was driven by more positive decisions

issued by Bulgaria, Austria and Croatia (in descending order) and fewer negative decisions by

Greece and Romania. Meanwhile, the increase in the acceptance rate for take charge

requests was due to many more positive decisions by Italy and Spain.

4.2.5. Use of the discretionary clause

Discretionary clauses are defined in Article 17 of the Dublin III

Regulation. Article 17(1) is also referred to as the sovereignty clause,

which allows a Member State to examine an application for

international protection lodged by a third-country national or a

stateless person, even if such an examination is not its responsibility

under the criteria laid down in the regulation.

In the context of the discretionary clause, a partner country is the

country to which a take back or take-charge request could have

been sent before invoking the clause.

Article 17(1) was invoked about 4,800 times in 2022, increasing for the first time in 4 years but

still well below pre-pandemic levels. It was applied most frequently by Belgium, followed at a

distance by France, Germany and the Netherlands. The discretionary clause was used mostly

for Afghan citizens in Belgium and Germany; Syrians in the Netherlands and Belgium; and

Turks in the Netherlands.

For the first time, Bulgaria was identified as the main partner country to which requests could

have been sent, mostly in relation to Afghan applicants. This was followed closely by Greece,

for which the discretionary clause was evoked mostly in relation to Turkish applicants. Other

commonly identified partner countries included Italy and, at lower levels, Spain, Germany and

France (in descending order).^xxviii

4.2.6. Assessing transfers to specific countries

Serious and systematic infringements of EU law

Following two similar cases, the Regional Court of Den Bosch referred a case to the CJEU for

a preliminary ruling on the divisibility of mutual trust between Member States in the

Dublin procedure. The previous two referrals were submitted in October 2021 and

March 2022,³³⁸ but they were later withdrawn as the appeals of the decisions were revoked.

xxviii

The share of ‘unknown’ partner countries decreased from 22% in 2021 to 1% in 2022. Therefore, the actual

number of times a particular country was deemed responsible by another Member State in 2021 may have been

underestimated.

104

ASYLUM REPORT 2023

National courts inquired if serious and systematic infringements of EU law by the potentially

responsible Member State would preclude a Dublin transfer to that state or would the

infringements imply that the requesting Member State cannot rely on the principle of mutual

trust, necessitating it to examine and demonstrate that the applicant would not be in a

situation contrary to the Charter of Fundamental Rights of the EU, Article 4. The courts also

inquired about the types of evidence that can be used and the standard of proof.

Differences in protection policies

The Icelandic Immigration Appeals Board examined the possibility of transferring an applicant

to Sweden, where an application for international protection was rejected, the applicant was

issued a return order to Palestine, lost the right to material reception conditions and was

homeless for 5 months. The board noted that the procedure for assessing the principle of

non-refoulement in return procedures in Sweden provided sufficient guarantees to ensure that

the applicant’s life would not be at risk. The rejected applicant also retained the right to

essential health care until departure, and the board concluded that this is adequate in the

particular case. In addition, the applicant did not have a condition that would require treatment

that is only available in Iceland and not in Sweden. Finally, the board acknowledged that

applicants with a negative decision lose their right to accommodation in Sweden, but as an

exception, vulnerable persons could still be accommodated. Thus, the board confirmed the

transfer decision.

Similarly, the Dutch Council of State confirmed that a more restrictive policy in Sweden related

to applicants from Syria in itself does not indicate that there would be a shortcoming in the

asylum procedure or that the applicant would run a real risk of indirect refoulement if he were

transferred back. Based on the principle of mutual trust, the court highlighted that the

authorities can assume that a Member State’s asylum system is effective and in compliance

with fundamental rights enshrined in the Charter of Fundamental Rights of the EU, the ECHR

and the Geneva Convention. The burden of proof is on the applicant to demonstrate that he

would not be offered international protection in the Member State responsible on the basis of

its protection policy, while in principle he would receive this in the Netherlands. This means

that the applicant should substantiate that there is an obvious and fundamental difference in

protection policies and that both the administrative authority and the courts in the Member

State responsible would not protect him against refoulement. If this burden of proof is met,

then the Dutch authorities are responsible to further investigate and remove all doubts of a

possible risk, if the transfer is implemented.

The Regional Court of The Hague declared a Pakistani applicant’s appeal as inadmissible,

noting that the fact that the legal representative’s secretariat confused the case with another

appeal was not an excusable justification for lodging the appeal with a delay. The court still

analysed whether the specific circumstances of the case would render it admissible. It

concluded that the fact that the Netherlands, unlike Germany, considers Ahmadis from

Pakistan a risk group cannot be considered as evidence of a fundamental difference in

protection between the two countries. The court added that it could not ascertain in advance

whether the Netherlands would grant the applicant international protection. Also, the applicant

did not substantiate that the German authorities would not protect against refoulement.

When assessing transfers to Denmark (202106573/1/V3 and 202105784/1/V3), the Dutch

Council of State found “obvious and fundamental differences” in asylum policies between

Denmark and the Netherlands related to Syrian applicants. The Council of State held that the

applicants met the burden of proof by providing evidence that the policy of the determining

105

EUROPEAN UNION AGENCY FOR ASYLUM

authority in Denmark was to return Syrian applicants, and this was endorsed by the Danish

Refugees Appeals Board. The Council of State noted that the State Secretary did not conduct

a further investigation to eliminate any doubts about a possible real risk of refoulement.

Access to the asylum procedure and non-refoulement

The situation at the Croatian border (see Section 4.1) was at the focus of several appeals in

many EU+ countries in the context of the Dublin procedure. For example, the Belgian CALL

ordered the suspension of transfers to Croatia in several cases due to inadequate material

reception conditions and a possible risk of refoulement.³³⁹ The Croatian Ministry of the Interior

signalled that the Dublin Procedure Department did not receive an official revocation of

transfers from Belgium to Croatia. The ministry added that as of December 2022, an individual

guarantee is submitted to Belgium for applicants who accepted through the Dublin procedure,

with each response accepting responsibility to examine the request for international

protection. Dublin returns to Croatia did continue throughout 2022.

The Federal Administrative Court (FAC) in Switzerland annulled SEM’s transfer decision of two

applicants to Croatia, noting that the authority had not sufficiently clarified the facts of the case

which are relevant for the determination of the state responsible for the asylum applications.

In addition, the applicants substantiated in a credible manner their detention and acts of

torture by police officers at the border, while SEM had based its decision on old reports to

conclude that there were no systemic flaws in Croatia’s asylum system. At the beginning of

2023, FAC noted that it is highly probable that unlawful removals constitute a regular practice

in Croatia, but for Dublin transfers, it was not a primary concern whether it was extremely

difficult for an applicant to reach the Croatian territory. The court underlined that there was no

indication that Dublin returnees to Croatia were being unlawfully removed despite expressing

their wish to apply for international protection. The Croatian Ministry of the Interior added that

Dublin returnees are issued a certificate of registration after they express their intention to

apply for international protection, and they are instructed to report to the reception facility in

Zagreb (families with children are transported to the facility in an official vehicle without a

police label).

The Dutch Council of State cancelled several transfers to Croatia (for example, of an applicant

from Egypt and an applicant from Algeria), noting that various sources and reports indicated

that the risk of pushbacks existed for third-country nationals transferred to Croatia from other

Member States. The court also noted that there was clear evidence of pushbacks at the

border and the Dutch authorities could no longer assume that Croatia complies with its

international obligations toward third-country nationals. Thus, Dutch authorities could no

longer transfer applicants to Croatia based on the Dublin III Regulation without further

investigation on whether the country complies with the requirements of the ECHR, Article 3.

The Croatian Ministry of the Interior shared that a non-paper was sent to the Dutch authorities

about the situation of nationals of Egypt and Algeria and it expressed the possibility of

providing individual guarantees for transferred applicants for international protection, if

requested. The authorities underlined in the non-paper their conviction that the Dublin III

Regulation is implemented fully and consistently, and that applicants’ rights are protected in

accordance with EU and national legislation and international obligations.

Similarly, in Germany, the Regional Administrative Courts of Freiburg, Hanover and Stuttgart

annulled transfers to Croatia. All courts mentioned the recent incidents of pushbacks as an

indication of a risk of treatment contrary to the ECHR, Article 3 and the Charter of

Fundamental Rights of the EU, Article 4, and noted systemic deficiencies in the asylum and

106

ASYLUM REPORT 2023

reception systems. The Stuttgart court highlighted that applications from persons who were

transferred back under the Dublin III Regulation were treated as subsequent ones, and there

was a risk that the applicants were denied a substantive examination of the merits of their

asylum claim and, thus, were not offered adequate protection against refoulement.

Nevertheless, other courts - like the Regional Administrative Courts of Ansbach, Leipzig³⁴⁰

and Hannover³⁴¹ - decided that there are no systemic flaws in the Croatian asylum system.

For Dublin transfers to Hungary, a new legal position was published in Sweden. The Swedish

Migration Agency (SMA) continued to send requests and take transfer decisions when

Hungary was identified as the Member State responsible, but it also continued to suspend the

implementation of transfers to Hungary as long as the situation persists. The legal position

was issued to assess the impact of the ‘embassy procedure’ (see Section 4.1) and underlined

that there was no legal clarity on whether applicants transferred back to Hungary may lodge

an application on the territory of Hungary. In addition, the legal position found that a claim by a

transferred applicant would be treated as a subsequent application and noted that this was

contrary to Dublin III Regulation, Article 18. The document added that there were also doubts

about the possibility to access an effective remedy. The position underlined that suspending

the implementation of transfers to Hungary does not mean that the transfer time limit is

suspended according to Dublin III Regulation, Article 29(1).³⁴²

The Regional Administrative Court of Arnsberg in Germany ordered the suspension of the

transfer of an Uzbek applicant to Hungary. He entered the country through Ukraine in

March 2022 and continued his journey to Germany without asking for international protection.

The court highlighted serious reasons to assume systemic flaws in the Hungarian asylum

procedure and violations of the non-refoulement principle. The court underlined that, despite

a request from the German authorities, the Hungarian authorities did not provide written

guarantees that the applicant’s case would be managed in line with the recast APD.

The AIDA report for the Netherlands observed that transfers to Hungary from the Netherlands

were not undertaken in 2022 by applying the sovereignty clause in cases where it was

established that Hungary is the Member State responsible (a practice which was started

in 2015).

When assessing transfers to Lithuania, courts in Germany and Estonia took a different

approach. The Regional Administrative Court of Hanover found that the German authorities

should not have determined Lithuania as the state responsible for the asylum application

merely on the basis of the Dublin III Regulation, Article 13 (irregular entry), but they should

have continued the examination whether another Member State could have been designated

as responsible, referring to potential systemic flaws in asylum and reception conditions. The

court noted that, due to increased border crossings in the summer of 2021 and concerns

around the possibility to access the asylum procedure and adequate material reception

conditions, the asylum and reception systems in Lithuania showed signs of systemic

weaknesses, which could result in inhuman or degrading treatment. At the same time, other

courts in Germany (see for example here and here³⁴³) have concluded that there are no

systemic flaws in the Lithuanian asylum system.

In contrast, the Estonian Circuit Court assessed that the shortcomings in accommodation in

Lithuania due to mass arrivals could not lead to a conclusion that the transfer could not be

implemented. It found that since the applicant could contest the negative decision before a

court, it suggested that there were no deficiencies in the system. The court also considered

107

EUROPEAN UNION AGENCY FOR ASYLUM

that the situation of the applicant, who arrived from Belarus in 2020, was not comparable to

those who arrived on a mass scale in the summer of 2021.

For transfers to Spain, the Icelandic Immigration Appeals Board analysed the possibility of the

applicant to access the asylum procedure, receive material reception conditions, including

appropriate health care, and be protected against refoulement. The board upheld the transfer

decision by the Directorate of Immigration.

Access to and quality of reception conditions in the country responsible for the application

The court cases cited above involving transfers to Croatia, Lithuania and Spain also looked

into the applicant’s possibility of accessing reception conditions and the quality of these

conditions. Concerns around inadequate reception conditions for individual applicants has led

to cancelling transfers to Croatia and Lithuania. The Croatian Ministry of the Interior added that

the authorities made efforts to improve the reception system and accommodation through

projects co-financed with AMIF. For example, improvements were made to the reception

centre in Kutina and the reception centre in Zagreb was in the process of being reconstructed.

Projects implemented in previous years, such as the cooperation with Médecins du Monde

Belgique on health care services and psychosocial support from the Croatian Red Cross, have

continued in 2022 as well (see Section 4.7).

In January 2022, the Belgian Immigration Office confirmed to the Flemish Refugee Action that

it no longer took Dublin transfer decisions for Bulgaria.³⁴⁴

For transfers to Italy, selected jurisprudence pointed more and more towards a trend of courts

concluding that there was no evidence of systemic flaws in the asylum and reception systems

following legislative changes in 2020. However, the approach may change in the beginning of

2023, after Italy notified other Member States in December 2022 that it would not accept

incoming transfers due to a lack of reception places.

In January 2023, the Court of The Hague concluded that the Italian government’s circular

must be regarded as a temporary obstacle to implementing transfers and should not be

considered as an indication of structural and fundamental shortcomings. The court underlined

that the presumption of mutual trust remains.

The German Federal Administrative Court confirmed on 27 January 2022 the decision of the

Higher Administrative Court of North Rhine Westphalia in July 2021, halting the transfer of a

single man to Italy. The transfer was ruled to be unlawful due to the lack of accommodation in

Italy, based on an alleged lack of sufficient consideration of the facts on the ground.

The Swiss Federal Administrative Court established a different approach to take charge and

take back requests to Italy. In 2022, the obligation previously introduced by the court in

December 2019 to obtain individual guarantees from Italian authorities for applicants with

serious health problems (with regard to adequate accommodation and immediate access to

medical care) was lifted for take charge procedures. For take back procedures, guarantees

were still required. The court reasoned this with the risk of being excluded from

accommodation in take back cases.

The Swiss Refugee Council continued its work on monitoring reception conditions in Italy for

Dublin returnees. In February 2022, the organisation published a report which assesses the

situation specifically for applicants with mental health problems. The organisation continued to

advocate against Dublin transfers to Italy.³⁴⁵

108

ASYLUM REPORT 2023

The Regional Court of the Hague underlined that Dutch authorities may rely on the principle of

mutual trust, although it considered that there were still certain shortcomings in the Italian

asylum and reception systems. It found that the applicant in the specific case, who had

diabetes, had access to medical treatment upon a return and would not be faced with a

situation that would be in violation of the ECHR, Article 3.

However, the Portuguese Central Administrative Court concluded in another case that the

applicant’s medical conditions needed to be assessed as a vulnerability factor and upheld the

lower court’s decision to oblige the authorities to reconsider the applicant’s transfer to Italy.

The Icelandic Immigration Appeals Board concluded that better living conditions in Iceland

than in Italy did not justify cancelling a Dublin transfer decision. In the case, the court noted

that the applicant was living in an overcrowded reception centre and faced discrimination

against applicants and beneficiaries of international protection, but the applicant had a valid

residence permit on grounds not related to international protection, was in good health, found

work and studied in Italy, and did not appear to have any special ties with Iceland.

The regional court in Brno, Czechia, ruled in February 2022 on an applicant’s transfer to

France. It reiterated that Czechia was obliged to consider properly, individually and thoroughly

if there existed a risk of breaching the ECHR, Article 3.

In another case, the Portuguese Supreme Court found that the fact that the applicant was not

granted accommodation in kind could not be considered as a systemic failure of the French

reception system. The court considered that the EUR 400 cash benefit and access to free

health care should be sufficient for the applicant to cover his needs.

In October 2022, the Swiss FAC examined the Dublin transfer to Bulgaria of an Afghan

applicant, who suffered from health problems and drug addiction. SEM used text modules to

substantiate the decision and the request sent to Bulgaria did not contain information on the

applicant’s medical state. Thus, the court considered that not all legally-relevant medical facts

were examined. In addition, the court was not convinced that the Bulgarian authorities took

sufficient account of the principle of non-refoulement. Lastly, the court added that SEM had

also failed to take into account the impact of the war in Ukraine on the Bulgarian asylum and

reception system.³⁴⁶

The Court of the Hague annulled a Dublin transfer to Belgium after the ECtHR issued interim

measures against the country (see Section 4.7). The burden of proof on reception conditions

thus shifted from the applicant to the national authorities to demonstrate that the applicant

would be provided with adequate material reception conditions following a transfer to

Belgium.

Use of detention

Approaches to Dublin transfers to Malta seemed to have converged, and several transfers

were halted due to the country’s detention policy (see Section 4.8). For example, the Tribunal

of Rome annulled the transfer decision of an applicant who had been detained in Malta for

16 months, fell ill due to the conditions and had to be hospitalised for 2 months.

Likewise, the Dutch Council of State upheld a case concerning two applicants, including a

child who suffered trauma in Malta and experienced PTSD. The court stated that the child

would be at risk of a significant and irreversible impact on her health if transferred back to

Malta. The council added that, even though the medical advice concluded that the child was

109

EUROPEAN UNION AGENCY FOR ASYLUM

physically fit to travel, the Dutch authorities should have been more active to fulfil their duty to

clarify any serious doubts about the impact of the transfer on the child’s health. According to

its own manual, SEM does not transfer vulnerable asylum seekers to Malta if they are facing

detention.³⁴⁷

The Constitutional Court in Austria disagreed with a decision by the Federal Administrative

Court (BVwG) when the court found a planned transfer of a Syrian national to Malta to be

admissible. The Syrian national claimed that he would be detained upon a return to Malta and

that the conditions in detention in Malta would violate his rights guaranteed by the ECHR,

Articles 2 and 3. The BVwG did not assess the situation in detention in Malta .

The practice of detaining children and conditions in detention in Poland led to a case being

referred back by a Regional Administrative Court to BAMF. The court found several reports

from various, reliable sources on concerns about the detention of children and concluded that

BAMF must undertake further investigation to assess whether the applicants would be at risk

of a situation contrary to the Charter of Fundamental Rights of the EU, Article 4.

Impact of the war in Ukraine on neighbouring EU+ countries

Courts had different approach towards Dublin transfers to EU+ countries which were the most

impacted by the arrival of Ukrainians, such as Poland and Romania. In Germany, the Regional

Administrative Court in Aachen noted in March 2022 that Poland sent a circular on

25 February 2022 temporarily suspending all incoming transfers as of 28 February 2022 until

further notice. Hence, the court annulled a transfer.

In June 2022, the Czech Supreme Administrative Court did not make reference to this circular,

but it sent back a case to the regional court, noting that the lower court did not provide

sufficiently relevant and up-to-date reports to determine whether the number of people

arriving from Ukraine led to systemic flaws in the Polish asylum and reception systems.

For transfers to Romania, in July 2022, the Regional Administrative Court of Arnsberg in

Germany noted that the Romanian authorities announced on 28 February 2022 that Dublin

transfers would be accepted only in urgent cases and, thus, the court annulled a Dublin

transfer.

In October 2022, the Civil Court of Rome annulled an applicant's transfer to Romania

according to Article 3(2) of the Dublin III Regulation and Article 4 of the EU Charter of

Fundamental Rights, considering systemic deficiencies existing in the country. The court

observed that the country was already unprepared to accommodate asylum seekers before

the Ukrainian crisis and that with the arrival of thousands of people from Ukraine the situation

had reached a critical level. In January 2023, the Civil Court of Rome confirmed its previous

orientation, annulling a transfer to Romania.

However, the Dutch Council of State concluded that the fact that Romania intended to

suspend incoming transfers would not mean that Romania refused the requests. The council

found that it was an indication of a temporary measure and noted that the letter from the

Romanian authorities allowed urgent transfers, such as the transfer of applicants in detention

or transfers with a close deadline.

110

ASYLUM REPORT 2023

4.2.7. Implementing Dublin transfers

After dropping to very low levels on account of the COVID-19 pandemic in

2020 and 2021, the number of Dublin transfers which were implemented in

2022 remained low. Overall, about 15,000 transfers were undertaken in

2022,^xxix which was about one-seventh more than in 2021, yet about two-fifths

lower than the number in 2019. Transfers were partially hampered by the

increased pressure on staff and reception systems following the activation of

the Temporary Protection Directive in the wake of the Russian invasion of Ukraine.

In 2022, implemented transfers fluctuated moderately throughout the year (see Figure 9). The

low number of transfers in 2022, combined with a slight increase in accepted requests,

resulted in a lower ratio of implemented transfers to accepted requests: just under one to

seven,^xxx down from one to five in 2021 and one to four in 2020.^xxxi

Germany and France implemented one-half of all transfers in 2022. Transfers implemented by

Germany increased by about three-fifths compared to 2021 (see Figure 10, left side). The

surge was mainly due to many more Afghan, Syrian, Turkish and Iraqi applicants (in

descending order) who were transfered. Transfers implemented by France increased by one-

tenth from 2021 and continued to involve mainly Afghans and Guineans.

A low number of Dublin transfers were implemented in 2022

Figure 9. Number of outgoing Dublin transfers implemented in EU+ countries by month,

January 2019-December 2022

3,000

2,500

2,000

1,500

1,000

500

Jan Feb Mar Apr May Jun

Jul

Aug Sep Oct Nov Dec

2019

2020

2021

2022

Note: Data were missing for Denmark. For the purpose of comparison, data on transfers from and to the United

Kingdom in the periods when it was part of the EU were not included.

Source: EUAA EPS data

^xxix Data were missing for Denmark.

^xxx This calculation was made excluding data for Denmark for 2022.

^xxxi The ratio of transfers following accepted requests should be used with caution to assess a Member State’s

capability to successfully implement transfers, due to the lack of cohort data and a substantial time lapse between

an accepted transfer request and a physical transfer. This time lapse distorts the calculation of the rates if the

number of acceptances is not stable over time.

111

EUROPEAN UNION AGENCY FOR ASYLUM

Germany and France implemented one-half of all Dublin

transfers

Figure 10. Number of outgoing Dublin transfers implemented by sending (left) and

receiving country (right) for selected countries, 2022 compared to 2021

2021

2022

Other

Switzerland

Sweden

Spain

Netherlands

Italy

Greece

Germany

France

Belgium

Austria

4,000

2,000

4,000

Note: Data were missing for Denmark as a sending/reporting country. For each Member State, implemented

transfers are self-reported while received transfers are based on data from all other receiving countries.

Source: EUAA EPS data.

Among the countries implementing the most transfers, Greece undertook less than one-half as

many transfers as in 2021 (on account of an important drop in Afghan transfers), while those

carried out by the Netherlands remained stable.

At lower levels, more transfers were implemented by Austria (where Afghans remained the top

transferees but numbers grew considerably for Algerians, Indians and Moldovans), Belgium

(due to more Algerians, Afghans and Moroccans), Portugal (due to more Gambians) and

Sweden (on account of an unprecedented number of transfers of Russian and Uzbek

nationals).

The largest absolute increases in receiving countries occurred in Austria, Spain and Italy (in

descending order) (see Figure 10, right side). Transfers to Austria increased to the most in at

least 6 years, mainly due to more Afghans, Syrians and Turks. Such increases were offset by

declines in Germany, Romania, Sweden and Belgium (in descending order), mainly driven by

fewer transfers of Afghans.^xxxii

As in the previous year, in 2022, most transferees were Afghans, accounting for just under

one-fifth (17%) of the total. They were followed at some distance by Algerians (8%),

Syrians (7%), Guineans, Moroccans and Iraqis (5% each). The transfer of Afghan nationals

declined by one-tenth from 2021 but remained above the pre-pandemic level of 2019.

Germany transferred more than twice as many Afghan citizens as in 2021, while transfers of

Afghans from Greece declined by almost two-thirds to the lowest level in at least 6 years.

xxxii

Only countries where the surplus of transfers in 2021 compared to 2022 exceeded 140 are considered.

112

ASYLUM REPORT 2023

Around 1,200 Algerians were transferred in 2022, which was about one-sixth more than in the

previous year and the most in at least 7 years. Transfers of Syrians increased slightly

compared to 2021, while transfers of Iraqis and Moroccans both rose by more than one-

quarter. In contrast, after dropping in 2020 and 2021, transfers of Nigerians declined further

in 2022.

Most asylum applicants who were transferred through a Dublin procedure in 2022 were adult

males (see Figure 11), but children under 18 years represented at least 14% of all

transferees.^xxxiii In 2022, transfers of minors declined by around one-fifth compared to 2021,

but there were variations between the age groups. While the transfer of minors in the younger

age group (under 14 years of age) remained stable, significantly fewer minors aged between

14 and 17 were transferred. The decline was due to a steep fall in the number of minors

transferred from Greece, likely linked to fewer transfers executed under the relocation

scheme. Nevertheless, Greece remained the top country for the implementation of transfers

involving minors, carrying out two-fifths of all such transfers, but it was followed closely by

Germany, which accounted for around 30% of the total.

Transfers of female minors remained stable compared to 2021, with minor girls representing

one-third of all transferred minors. In the lower age group (under 14 years), minor girls

represented roughly two-fifths of the total.

The number of minors being transferred declined for the

top two nationalities of transferees

Figure 11. Transferees in the Dublin procedure by age group and sex, 2022

Unknown

Female

Male

Unknown

65+

35-64

18-34

14-17

0-13

1,000

2,000

3,000

4,000

5,000

6,000

7,000

Note: Data were missing for Denmark for 2022.

Source: EUAA EPS data.

xxxiii

This proportion includes transferees for whom EU+ countries had not reported the age, which accounted for

13% of the cases.

113

ASYLUM REPORT 2023

Section 4.3.

Special procedures

to assess

protection needs

Countries may opt to use special

In the EU context, in addition to regular

procedures to assess an asylum

examination procedures, the recast APD

application in an accelerated

sets the framework to examine applications

manner out of the regular

for international protection at first instance

procedure. This can be done, for

under special conditions involving

example, when there are special

accelerated procedures when:

protection needs or when an

an application is presumably unfounded;

application is likely to be

applications are made at border or transit

unfounded. Also, when an

zones; or

applicant presents a subsequent

when the admissibility of the application is

application without new evidence,

in question.

the application may be dismissed

as inadmissible without an

In addition to special procedures, countries

examination on the merits, on the

may also introduce policies to process

basis of the res judicata principle.

specific categories of cases with priority and

In these special procedures, the

ahead of other pending cases (see

duration of the procedure is

Section 4.4).

shortened without undercutting

procedural safeguards or a

complete examination.

115

EUROPEAN UNION AGENCY FOR ASYLUM

In 2022, jurisprudential developments took the lead in the area of special procedures. Several

EU+ countries revised their national lists of safe countries of origin, and some legislative

developments changed border procedures and accelerated procedures. Concerns persisted

around the use of border procedures and around the risks of acceleration based on the safe

country concept and subsequent applications.

4.3.1. Border procedures

Many applications for international protection are made at the border of a

country or in a transit zone before an applicant gains entry into the territory. In

well-defined circumstances under the recast APD, a Member State can handle

the application directly in such a location, either to assess its admissibility or to

fully determine the case on the merits of the application.

In 2022, Finland and Greece initiated changes to their legislative framework on

border procedures. The Finnish government submitted a legislative proposal to the parliament

suggesting the introduction of a border procedure. The procedure could be triggered by a

government decision if an exceptionally large number of migrants arrive in a short period of

time or if hybrid activities aiming to exploit migration were directed against Finland. The

procedure would allow authorities to process potentially unfounded asylum applications at the

border. The procedure could not be applied to vulnerable applicants if they cannot be

guaranteed the special support they need.³⁴⁸ The legislative proposal forms part of a more

comprehensive legislative package of proposed amendments, which aim to ensure that the

country is prepared in case of hybrid activities.³⁴⁹ However, the parliament did not manage to

consider the proposal by the end of the electoral term (29 March 2023) and it was allowed to

lapse. The next government will decide if the changes will be proposed again.

The Finnish Refugee Advice Centre commented on the plans and highlighted, for example,

that remote interviewing should only be applied in this procedure if the applicant consents.

The organisation underlined that an applicant’s access to legal aid should clearly be

guaranteed. The centre also emphasised that detention should remain a last resort, and

alternatives to detention should be prioritised.³⁵⁰

The application of the Joint Ministerial Decision that provided for the application of the

exceptional border procedure in Greece was not renewed after 31 December 2021. Since the

beginning of 2022, the general provisions of Law No 4939/2022, Article 90(1)-(2) apply. The

government noted that the change was necessary, as the number of applications decreased

and a mass influx no longer existed. Following the change, according to the law, border

procedures apply only to applicants for international protection who arrive on the islands of

Lesvos, Chios, Samos, Kos and Leros and live in a RIC or a CCAC. The border procedure can

be applied for the period of the reception and identification procedure, for a maximum of 25

days.

The Greek Refugee Council observed that legal aid practitioners in Lesvos reported that,

since June 2022, the Regional Asylum Office (RAO) automatically applied non-border

procedures for applicants for whom the first instance decision had not been notified within

28 days from registration, without however issuing any decision for a referral to the normal

procedure (as it is not foreseen in the law, according to RAO). In these cases, the deadline for

the appeal is automatically extended as follows: for admissibility, the 10 days convert

automatically to 20 days and for eligibility they are extended from 10 to 30 days. This practice

116

ASYLUM REPORT 2023

is based on Article 95(2) of Law No 4939/2022, however the Joint Ministerial Decision

regulating this procedure was not issued for 2022. In Kos during 2022, all asylum applications

were examined under the border procedure, regardless of whether a first instance decision

had been issued and served to asylum seekers within 28 days of the registration of the

application.³⁵¹

A report by Equal Rights Beyond Borders, HIAS Greece and Refugee Support Aegean

observed delays in the registration of asylum applications and often there was too little time

between the summons for the interview and the interview itself. The organisations highlighted

delays in vulnerability assessments and expressed concern that interviews were conducted

before this assessment, and thus, special procedural guarantees could not be applied.³⁵²

In France, the border procedure was applied during the disembarkation of 234 people from

the ship Ocean Viking in November 2022. While unaccompanied minors (44 minors) were

taken directly into care by the child protection system, the remaining persons (190 people)

were placed in a waiting zone and their asylum applications - if there was any - were

examined under the border procedure. In total, 66 persons had their asylum application

considered as not manifestly unfounded. However, a total of 186 people were eventually

admitted by the judicial or administrative authorities to the territory to register their asylum

application and were referred to accommodation.

4.3.2. Safe country concepts

In the context of asylum, the term 'safe country' refers to countries which

do not generally generate protection needs for their people or countries in

which asylum seekers are protected and are not in danger. EU law

provides four safe country concepts which can be applied:

Safe country of origin: Under specific circumstances, certain countries

can be designated as generally safe for their nationals or former

residents. As a result, asylum applications from such countries are likely

to be unfounded, and Member States may accelerate or prioritise their

examination. The concept is described in the recast APD, Article 36.

Safe third country: A safe country with which the applicant has a

genuine connection and where he/she should have applied for

international protection. Unlike the safe country of origin concept, this

concept is not related to the substance of the application and the

application may be declared inadmissible.

First country of asylum: Asylum seekers and refugees may be returned

to a country where they have, or could have, sought international

protection and where their safety would not be jeopardised, whether in

that country or through a return from the first country to the country of

origin. The concept of first country of asylum is defined in the recast

APD, Article 35.

European safe third country: Certain European third countries observe

particularly high human rights and refugee protection standards.

117

EUROPEAN UNION AGENCY FOR ASYLUM

These concepts are regulated in the recast APD, which states that Member States should

conduct regular reviews of the situation in safe countries based on a range of sources of

information. When a significant change related to the human rights situation occurs in a

country which has been designated as safe, Member States must evaluate the situation as

soon as possible and, where necessary, assess the designation of that country as safe.

The national courts of EU+ countries remain the primary guardians of CEAS within the national

framework. When necessary, they review the practical implementation of safe country

concepts in line with their relevant competences. In addition, CJEU interprets the relevant

rules in the context of preliminary rulings or assesses their implementation in cases of

infringement procedures. The ECtHR indirectly reviews safe country concepts when

examining human rights violations.

Additional resources on safe country concepts

The application of the safe country concept in EU+ countries is presented in the EUAA

report, Applying the Concept of Safe Countries in the Asylum Procedure.

The Who is Who in International Protection interactive platform supplements this

report by presenting the EU+ countries which apply the concept, the competent

authorities responsible and national lists of safe countries.

4.3.2.1. Recent changes in national lists of safe countries

During periodic reviews, new countries may be determined as safe and others may be

withdrawn from the national list.

Safe country of origin

In 2022, several EU+ countries revised their lists of safe countries. The main changes occurred

in Cyprus,³⁵³ Estonia,³⁵⁴ Greece,³⁵⁵ Iceland,³⁵⁶ Norway³⁵⁷ and Slovenia.³⁵⁸ Belgium was the

only country where no changes were introduced,³⁵⁹ although in March 2023, the Council of

Ministers approved the removal of Georgia from the list.³⁶⁰

In the Netherlands, the State Secretary announced in 2021 that 12 countries will be removed

because there was no substantial interest or relevance to keep them on the list.³⁶¹ In addition,

it maintained the United States,³⁶² Armenia (with the exception of LGBTIQ applicants and

persons who have been placed in criminal detention),³⁶³ and Trinidad and Tobago (with the

exception of LGBTIQ applicants)³⁶⁴ as safe countries of origin.

On 5 April 2022, the Council of State ruled that specific groups within a country can be

excluded from the designation of a safe country of origin. Until this ruling was delivered, the

Netherlands could opt to pay special attention to specific groups that did not completely meet

the threshold to be excluded from the safe country of origin designation. Therefore, the

accelerated procedure in Track 2 still applied. With the new ruling, all groups to which special

attention was given in Track 2 were subsequently excluded from the safe country of origin

designation.

In Ireland, the International Protection Act was amended to allow for the prioritisation of

applications from safe countries of origin and for the acceleration of the appeal procedure in

front of the International Protection Appeals Tribunal (IPAT).³⁶⁵ Under the revised procedure,

118

ASYLUM REPORT 2023

applicants from safe countries of origin receive a date for their substantive interview within 4

to 6 weeks of making the initial application.³⁶⁶

In October 2022, a fast-track procedure was re-introduced in Switzerland for certain countries

of origin: countries on the list of safe countries of origin, visa-exempt countries, and - because

of the high number of insufficiently-justified claims - Algeria, Morocco and Tunisia. This

procedure merges the normally separate procedures of the Dublin interview and interviews in

the national asylum procedure according to AsylA, Articles 26 and 29. According to the SEM,

this would allow the asylum procedure to be completed more quickly.³⁶⁷

For specific groups of applicants, aditus strongly criticised the presence of a number of

countries on the safe country list in Malta because they discriminate and criminalise

LGBTIQ individuals. The organisation pointed out that this practice undermines the proper

safeguards at second instance for these individuals who are fleeing persecution on the basis

of their sexual orientation and gender identity, especially in cases where the first instance

decision rejects the application as manifestly unfounded.³⁶⁸ The International Protection

Agency stated that all procedural guarantees apply within the accelerated procedure.

Following the Russian invasion in February 2022, Ukraine was removed or de facto

suspended in all EU+ countries that had previously designated Ukraine as a safe country of

origin (Austria,³⁶⁹ Cyprus,³⁷⁰ Czechia, Estonia, Greece,³⁷¹ Iceland,³⁷² Italy³⁷³, Luxembourg and

the Netherlands³⁷⁴).

The change in the security situation in Ukraine led the Supreme Administrative Court in

Czechia to accept appeals lodged before February 2022 by Ukrainian nationals based on the

safe country of origin concept and held that these cases should be re-considered due to the

ongoing armed conflict.

In S.H. v Malta (Application No 37241/21), the ECtHR found that there had been violations of

Article 13 in conjunction with Article 3 of the Convention when Malta ordered the return of an

applicant to Bangladesh, which the International Protection Act deems as a safe country of

origin. Under Rule 39 of the Rules of the Court, the ECtHR indicated to the Maltese

government not to expel the applicant.

Similarly, the Tribunal of Catania overturned a negative decision and stated that Tunisia

cannot be considered a safe country of origin due to the deteriorating the security situation.

The Court of the Hague overturned decisions given to some applicants from safe countries of

origin. In one case it found that the determining authority had not asked sufficient questions

during the interview with an applicant from Georgia, and in another, there was insufficient

investigation of the individual circumstances of the applicant from Armenia.

The Dutch Council of State underlined that even when a country is considered as a safe

country for origin for unaccompanied children, the authority should examine if adequate

reception is available in the return country.

In contrast, national courts upheld the designation of some countries as safe countries of

origin. There was no information available to challenge the designation for Cameroon, Egypt,

Georgia and Morocco.

The Irish High Court sent several cases back to IPAT to re-examine whether Georgia can be

considered as safe for victims of domestic violence (see Section 5.2).

119

EUROPEAN UNION AGENCY FOR ASYLUM

Safe third country

Only a few changes were reported for national lists of safe third countries in 2022. Following

the Russian invasion, Estonia removed Ukraine from the list on 25 May 2022.

Greece introduced the list in June 2021, specifying Türkiye as a safe third country for certain

nationalities.³⁷⁵ The list was further supplemented in December 2021 with the addition of

applicants entering from Albania and North Macedonia.³⁷⁶

The retention of Türkiye as a safe third country on 12 December 2022³⁷⁷ drew a strong

reaction from civil society organisations.³⁷⁸ 15 NGOs addressed a letter to the Director of the

Asylum Service, noting that the latest European Commission report on Türkiye

(SWD(2022) 333)³⁷⁹ counters Greece’s designation of Türkiye as a safe third country for

refugees.³⁸⁰ The lack of readmission leading to prolonged detention on the islands was also

criticised by NGOs.³⁸¹

Members of the European Parliament (E-001347/2022) raised with the European Commission

the issue of the applicability of the recast APD, Article 38(4) as Türkiye had suspended all

transfers from Greece.³⁸² The European Commission underlined that if the applicant is not

permitted to enter the safe third country, in particular if the underlying situation preventing

entry persists since 2018 or 2020, the Member State should ensure that access to the asylum

procedure is given, in accordance with the recast APD.³⁸³ The Refugee Support Aegean and

the Greek Refugee Council submitted an annulment of this piece of legislation to the Greek

Council of State, which referred questions to the CJEU for a preliminary ruling.³⁸⁴

However, despite the suspension of returns to Türkiye since March 2020, applications lodged

by applicants falling under the scope of Joint Ministerial Decision 42799/2021

(FEK B’ 2425/07.06.2021) in 2022 were still examined in the context of the safe third country

concept and the fast-track border procedure. The Appeals Committee does not apply

Article 38(4) of the Procedural Directive to applications rejected as inadmissible on the basis

of the safe third country concept with regard to Türkiye, despite the fact that readmissions to

Türkiye have been suspended since March 2020. It is only in a limited number of cases that

the Appeals Committee proceeded to an in-merit examination of an application. UNHCR

continued its advocacy for the examination on the merits, based on its public statement issued

in August 2021.³⁸⁵

Challenges were also brought up by the Norwegian Organisation of Asylum Seekers (NOAS)

about the application of the concept of the safe third country. NOAS proposed a series of

legislative and procedural changes to ensure that asylum seekers who are returned to a safe

third country following the Immigration Act, Section 32(1d) are not exposed to the risk of

refoulement, including chain refoulement.³⁸⁶

120

ASYLUM REPORT 2023

4.3.3. Admissibility procedures

Admissibility procedures are conducted when a Member State does not

have to examine whether an applicant qualifies for international protection

because of specific circumstances, for example:

Another Member State is responsible for the application under the

Dublin III Regulation;

Another Member State has already granted protection;

Another country is considered to be the first country of asylum or a safe

third country for the applicant;

The application is a subsequent one with no new elements; or

A dependent lodges an application after consenting to be a part of

another application.

In these special cases, a Member State conducts an admissibility procedure

to verify if the application may still be admitted for examination.

In 2022, jurisprudential developments shaped the framework established for admissibility

procedures. Following the CJEU’s judgment in November 2021, the Asylum Law was

amended in Hungary.³⁸⁷ The inadmissibility ground was repealed from the Asylum Law, which

allowed the asylum authority to reject a case when the applicant had arrived through a

country where the person was not exposed to persecution or at risk of serious harm. This

provision gave rise to an infringement procedure by the European Commission.³⁸⁸

Nonetheless, the Hungarian Helsinki Committee underlined that the corresponding provisions

still remained in the Fundamental Law of Hungary, allowing authorities to continue using this

inadmissibility ground in practice.³⁸⁹

The CJEU ruled that a new application in a Member State from an applicant who had

previously been rejected by Denmark cannot be considered as a subsequent application, and

thus dismissed it as inadmissible, since Denmark does not implement the recast QD and the

recast APD (see Section 2.6). The court also ruled on the admissibility of an asylum application

lodged by a minor whose family members were already beneficiaries of international

protection in another Member State (see Sections 2.6 and 4.2).

The German Regional Administrative Court of Minden referred questions to the CJEU for a

preliminary ruling, inquiring whether an application could be considered as a subsequent one

and dismissed as inadmissible when the applicants in the meantime had returned to their

country of origin. Another Regional Administrative Court asked the CJEU whether national

legislation was in line with EU law if it considers a subsequent application to be admissible

only if the factual or legal position changed in favour of the applicant, and whether a ruling

from the CJEU must be treated as a new element, even if that ruling found that national

legislation was in line with EU law.

These questions referred to the practice of BAMF between 2019 and April 2022 of

deprioritising applications from applicants who had already been granted international

protection in Greece, until BAMF started processing them again in April 2022. BAMF stated

121

EUROPEAN UNION AGENCY FOR ASYLUM

that it planned to assess each case again on its merits, instead of accepting the decision to

grant international protection from another Member State, and to only deem applications

inadmissible “in justified individual cases” where no threat of violation of the ECHR, Article 3 or

EU Charter of Fundamental Rights, Article 4 exists. Over the course of 2022, this led to cases

where asylum applications were rejected, although protection had been granted by Greek

authorities.

The Federal Administrative Court of Leipzig in Germany referred questions for a preliminary

ruling on secondary movements. The court inquired whether a Member State was prevented

from examining an asylum application in an open-ended manner if another Member State had

already granted international protection, but a return to the first Member State would entail a

risk of violating the Charter of Fundamental Rights of the EU, Article 4.

Indeed, the trend of recognised beneficiaries of international protection moving onto other

Member States and applying for international protection persisted in 2022. The Swiss

Refugee Council published a legal analysis and presented some recent case law related

specifically to returning applicants who had been granted international protection in

Greece.³⁹⁰

In addition, an EUAA publication on Jurisprudence on Secondary Movements by Beneficiaries

of International Protection highlights the changing approach of courts when assessing these

cases and some of the practical and procedural issues faced by judges.³⁹¹ Following the

publication of the report, the number of relevant cases registered in the EUAA Case Law

Database continued to grow, for example with Belgium, Finland, France, Germany, Iceland and

the Netherlands assessing individual situations against the Ibrahim threshold and examining

whether national authorities fulfilled the duty to sufficiently investigate the circumstances.

4.3.4. Accelerated procedures

According to the recast APD, when an application for international

protection is likely to be unfounded or where there are specific grounds,

such as the applicant is from a safe country of origin or presented false

information, Member States may accelerate the examination of the

application. This can be done by introducing shorter, but reasonable, time

limits for certain procedural steps without compromising the right to a fair

process or the applicant’s access to basic rights and guarantees. In the

circumstances when a procedure can be accelerated - which are the same

circumstances to examine an application at the border or in transit zones

(see Section 4.3.1), the directive allows Member States to consider an

application as manifestly unfounded.

While several Member States undertook steps to speed up the regular asylum procedure (see

Section 4.4), relatively few developments were reported specifically related to accelerated

procedures.

Changes to national lists of safe countries of origin (see Section 4.3.2) had an impact on

accelerated procedures. For example, Russia was removed from the ÅGH country list in

Denmark, which meant that applications from that country could not be processed in the

122

ASYLUM REPORT 2023

expedited version of the manifestly unfounded procedure. However, the Danish Immigration

Service underlined that applications from Russian citizens could still be processed in the

manifestly unfounded procedure on other grounds, with the agreement of the Danish Refugee

Council.³⁹²

The appeal timeline for an accelerated procedure was shortened in Cyprus with an

amendment to the "Law on the rules of procedure for the Administrative Court for International

Protection”.³⁹³

The Lithuanian Red Cross underlined that, since summer 2021, applicants from certain

nationalities arriving from Belarus were automatically referred to an accelerated procedure.

While the law requires the authorities to assess the cases within 10 days in this procedure, the

organisation observed that applicants often had to wait 6 months or more for a decision.³⁹⁴

In Malta, the First Hall Civil Court ruled that there was a breach of parts of the Maltese

Constitution and the applicant’s rights when a rejected application is automatically reviewed

by the International Protection Appeals Tribunal without hearing the applicant and without a

clear possibility of a further appeal. The case was further appealed to the Constitutional Court,

which delivered its judgment in January 2023. The court concluded that there was no violation

of the constitution, as it found that the rights in asylum were not part of civil rights and

obligations. In 2022, concerning the case of a different applicant, the ECtHR held that the

accelerated asylum procedure did not offer effective guarantees to protect the applicant from

an arbitrary removal.

4.3.5. Subsequent applications

A former applicant may lodge a new asylum application when their

situation has changed or new circumstances have arisen. Lodging a new

application has however sometimes been used by applicants to prevent or

delay a return decision. When an applicant makes a subsequent

application without presenting new evidence or arguments, it would be

disproportionate to oblige a Member State to carry out a new, full

examination.

In these cases, a Member State has the possibility to dismiss an application

as inadmissible in accordance with the res judicata principle (that the

matter has been decided on its merits and cannot be litigated again

between the same parties). When an application is not examined in

accordance with the Dublin III Regulation, a Member State is not required

to examine whether the applicant qualifies for international protection as

the application is already considered to be inadmissible after a preliminary

examination pursuant to the recast APD.

Similar to admissibility procedures, in 2022 jurisprudence influenced the procedural

framework of subsequent applications. As mentioned earlier, the CJEU ruled that a Member

State may not consider an application as a subsequent one after a first application was

rejected in Denmark (see Sections 2.6 and 4.3.3).

123

EUROPEAN UNION AGENCY FOR ASYLUM

The Turku Regional Administrative Court in Finland ruled on the scope of people who can

submit an appeal against a subsequent application and concluded in this case that the spouse

of the applicant does not have a right to appeal.

The Dutch Council of State assessed the concept of new evidence in subsequent applications.

It confirmed that the analysis of a report should be considered as separate evidence, thus if

the authorities considered only the report itself, the analysis should be considered as new.

The council also noted that the authorities cannot reject evidence arguing that it could have

been introduced sooner, as outlined in the recast APD, Article 40(4). This provision applies

only if a Member State transposed it in national law, and this was not the case for the

Netherlands.

The Czech Supreme Administrative Court considered the subsequent application of a

Ukrainian national and concluded that the case should be reconsidered as a result of Russia’s

invasion of Ukraine. The court also noted that it cannot be presumed that the applicant is

entitled to temporary protection, as he arrived long before the beginning of the war.

A report by Equal Rights Beyond Borders, HIAS Greece and Refugee Support Aegean

highlighted that the Greek authorities did not accept as a new element and did not declare

subsequent applications admissible when readmission to Türkiye was not plausible. Health

concerns or risk of torture or violence in the country of origin had also been seen to be

dismissed as non-substantial new elements. The report underlined that a judicial review was

still pending at the Greek Council of State, assessing a measure from September 2021 which

required asylum applicants to pay a EUR 100 fee for a second and further subsequent

applications.³⁹⁵

Assessing procedural requirements, the Court of The Hague annulled the IND’s decision in a

subsequent application when it did not distinguish between the two phases of examining the

admissibility of a subsequent application, as outlined in the CJEU’s LH ruling. However, the

court confirmed that the IND was not obliged to hear the applicant during the admissibility

assessment, and it confirmed that the legal consequences of the decision could be

maintained, even if the decision itself was annulled.

In a case concerning an applicant’s conversion to Christianity, the Dutch Council of State

overturned the inadmissibility decision in a subsequent application. The council emphasised,

that the IND should better recognise in its policy the importance that a growth in faith is

procedure-transcending. The authority should assess all information in combination with the

previous asylum procedure and examine whether a different outcome would result in the

credibility assessment.

The Austrian Supreme Administrative Court referred questions to the CJEU related to the

status which may be granted in a subsequent application when an applicant converts to a faith

after the first application was rejected. The Federal Office for Immigration and Asylum (BFA) as

the first instance court and the BVwG as the appeal court had considered the subsequent

application credible, but due to the fact that the risk of persecution emerged based on

circumstances that the applicant created by his own decision and relying on the Asylum Act,

Article 3(2) (transposing into national law the recast QD, Article 5(3)), it granted subsidiary

protection instead of refugee status. The court wanted to verify the compliance of this

interpretation with EU law. In relation to this preliminary reference, UNHCR published a written

statement in which it reiterated that individuals who are objectively at risk of persecution are

124

ASYLUM REPORT 2023

entitled to protection. This is irrespective of their motivations or intentions and of whether

these constitute a continuation of previously-held convictions or orientations.³⁹⁶

German courts also referred questions to the CJEU related to the admissibility of subsequent

applications (see Section 4.3.3).

4.3.5.1. Data on subsequent applications

A subsequent application is a legal term based on the recast APD,

Articles 2(q) and 40. It refers to situations where a person submits a new

application for international protection after a final decision has been

made on a previous application.^xxxiv

The proportion of subsequent applications lodged in the same EU+ country to total asylum

applications decreased to 1 in 12 in 2022, from 1 in 7 in the previous year.^xxxv The notable

decline was due to a decrease in the number of subsequent applications overall

(76,000 submitted in 2022 compared to 91,000 in 2021), coupled with a two-thirds increase in

first-time applications.

Subsequent applications declined in 12 out of 27 reporting countries. As illustrated on the left

side of Figure 12, subsequent applications in Germany declined the most in absolute terms

(26,000 in 2022 compared to 42,000 in 2021).^xxxvi Despite this decline, Germany was still the

main receiving country, accounting for over one-third of the total.

With an increase from the previous year, France followed with 19,000 subsequent

applications, representing one-quarter of total subsequent applications. With the exceptions of

Greece (11%), Italy (9%) and Belgium (6%), all other EU+ countries received 3% or less each of

the total subsequent applications in 2022.

Close to three-quarters of all subsequent applicants in 2022 were male, most of whom were

aged 18 to 34. Applicants older than 35 years submitted over one-quarter of all subsequent

applications, while minors made up 22%.

For certain countries, around one in five applications was a subsequent application. This was

the case in Czechia, Finland, Greece and Poland. For other countries, the share dropped to

around one in ten applications - this included Belgium, France, Germany, Italy, Latvia and

Lithuania. In all remaining EU+ countries, subsequent applications were relatively rare.

As shown on the right side of Figure 12, nationals of Afghanistan, Nigeria, Pakistan, Iraq and

Syria lodged the most subsequent applications in 2022. The latter submitted far fewer

repeated applications than in the previous year, with 3,400 in 2022 compared to 17,000 in

2021. The peak in 2021 resulted from Syrians in Germany lodging an exceptionally high

number of subsequent applications following a ruling by the CJEU.

xxxiv

https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Glossary:Repeated_applicant

^xxxv At the time of writing, data on subsequent applications were missing for Cyprus, Denmark, Iceland and Sweden.

xxxvi

Subsequent applications in Germany increased to unprecedented levels in 2021 following a CJEU ruling

relating to Syrian nationals and the Taliban takeover in Afghanistan.

125

EUROPEAN UNION AGENCY FOR ASYLUM

Subsequent applications by nationals of Syria and Afghanistan

declined from peak levels in 2021, particularly in Germany.

Figure 12. Receiving countries (left) and countries of origin (right) with the most

subsequent applications, 2022 compared to 2021

Other EU+ countries

Other Nationalities

Switzerland

Albania

Netherlands

Türkiye

Spain

Moldova

Poland

North Macedonia

Austria

Russia

Belgium

Syria

Italy

Iraq

Greece

Pakistan

2021

France

Nigeria

2022

Germany

Afghanistan

20,000

40,000

20,000

40,000

Note: Data on subsequent applications were missing for Cyprus, Denmark, Iceland (the law on foreigners does not

clearly define subsequent applications) and Sweden.

Source: Eurostat [migr_asyappctza] as of 13 April 2023.

Although still significantly higher than in earlier years, citizens of Afghanistan also submitted

fewer subsequent applications in 2022 (9,300 compared to 14,000 in 2021 when the Taliban

takeover in Afghanistan began). Afghans continued to lodge subsequent applications mainly

in Germany.

Subsequent applications by nationals of Nigeria (5,500) also declined from their peak in 2021,

but they were the second-largest applicant group in this category. As in previous years, the

majority of the subsequent applications by Nigerians were concentrated in Italy.

In contrast, subsequent applications by nationals of Türkiye and Pakistan (in descending

order) increased the most in absolute terms in 2022. Both increased significantly in France,

while repeated applications lodged by citizens of Pakistan increased the most in Greece,

where they more than doubled from the previous year. Subsequent applications by several

other countries in the vicinity of the EU also increased significantly in 2022, including nationals

of Russia (3,200), North Macedonia (3,000), Moldova (2,900), Georgia (2,400), Ukraine and

Serbia (1,800 each).

126

ASYLUM REPORT 2023

Section 4.4.

Processing

asylum applications

at first instance

The procedures foreseen in the recast APD

CEAS is based on the principle of

aim to ensure that decisions on applications

common standards to grant and

for international protection are taken on the

withdraw international protection,

basis of facts and by persons with

while ensuring fair and efficient

appropriate knowledge and training, after an

procedures. The aim is that similar

adequate and complete examination has

asylum cases are treated in a

been undertaken without undue delay and

similar manner in all Member

subject to remedies. Within this framework,

States, leading to uniform

Member States have established their

decision-making and convergence

asylum systems and procedures in various

across the EU, while ensuring that

ways.

an individual assessment is

provided in each case.

127

EUROPEAN UNION AGENCY FOR ASYLUM

In 2022, the number of applicants for international protection increased considerably,

alongside millions of displaced persons from Ukraine in need of temporary protection, leading

to increased pressure on first instance processing capacity. To carry out the examination of

applications and, at the same time, complete registrations for temporary protection, national

authorities were faced with the need to split already-limited resources and staff.

EU+ countries responded to this challenge by adopting measures to increase the efficiency of

the overall asylum system and to speed up the asylum procedure. Recruitment of new staff

and the reorganisation of determining authorities were initiated, and additional territorial

offices were created to increase presence and facilitate applicants’ access to the asylum

procedure and competent authorities. Studies were commissioned to analyse the organisation

of migration structures to identify best practices. Some EU+ countries introduced prioritisation

policies and guidelines for certain profiles, extended time limits to issue a decision at first

instance, and shortened or omitted certain steps in the procedure when the outcome would

be favourable to the applicant.

Overall reforms of international protection systems at the national level were initiated in

several EU+ countries, for example by launching new digitalisation projects to improve the

efficiency of the procedure. Some proposed legislative changes aimed to further accelerate

the asylum procedure, but civil society organisations reacted critically noting that, while

governments express the intention to keep the quality of the procedure, in practice the

changes may lead to a limitation of procedural safeguards for applicants. In other countries,

policies that aimed to exclude more people from international protection drew heavy criticism

from civil society organisations.

The CJEU ruled on an applicant’s right to access a copy of the administrative file and the

meaning of communication ‘in writing’ of the administrative decision, thus interpreting

Articles 23(1), 46(1) and 46(3) of the recast APD (see Section 2.6), while the ECtHR examined

the effectiveness of asylum applications in specific EU+ countries. In addition, national courts

contributed with interpretations provided in areas that needed clarification through judicial

reviews, such as the way in which personal interviews were carried out, the use of specific

software during the personal interview and the use of mobile phone data to determine the

identity and nationality of applicants.

4.4.1. Reorganisation and future restructuring

To enhance the effectiveness of asylum systems, in 2022, EU+ countries

reorganised their determining authorities, increased their presence and, where

necessary, updated their internal organisational rules.

In June 2022, the government of Iceland approved the Prime Minister’s

proposal to appoint a temporary Council of Ministers for Immigrants and Refugees. The

purpose of the council is to work systematically on increasing the speed and efficiency of

processing asylum cases, as well as build trust and transparency in decisions of immigration

authorities.³⁹⁷

Poland reorganised the Department for Refugee Proceedings at the Office for Foreigners to

have more specialised teams that could work with specific categories of applicants, such as

detained applicants or applicants from specific countries of origin.

128

ASYLUM REPORT 2023

In Sweden, the Migration Agency’s services were offered in eleven new locations since

January 2022 (see Section 4.9.1.1).³⁹⁸

In Bulgaria, the State Agency for Refugees, under the Council of Ministers, updated and

published rules governing access to and activities for national and international NGOs in the

territorial units of the agency.³⁹⁹

Several EU+ countries were considering changing the structure of competent authorities

involved in the international protection procedure. For example, in Belgium, the State

Secretary for Asylum and Migration announced that it considered plans to merge the

Immigration Office, the Office of the Commissioner General for Refugees and Stateless

Persons (CGRS) and Fedasil. This was based on an audit of the Belgian asylum process in

2021, which concluded that it would be better to merge the three services. Discussions were

ongoing on the feasibility of this plan, including how to safeguard the independence

assessing applications for international protection within this new system.

With the purpose of developing the best model of administration structures, the Ministry of the

Interior in Finland commissioned a study to analyse the organisation of migration structures in

Denmark, Germany and Sweden.⁴⁰⁰

In Greece, an amendment was presented to the parliament to establish a Fundamental Rights

Officer at the Ministry for Migration and Asylum. The officer would have competence in

evaluating complaints of fundamental rights violations during the international protection

procedure and referring possible complaints to other competent authorities.⁴⁰¹

In Portugal, a new asylum and migration agency was announced by the Minister of Home

Affairs to expand capabilities to welcome, host and integrate refugees. The responsibilities of

the Immigration and Border Service (SEF) will be reorganised, including three law enforcement

agencies, with the Criminal Police (Polícia Judiciária), the Public Security Police and the

National Republican Guard cooperating to ensure border security, integrated management,

and countering illegal practices and human trafficking.⁴⁰²

4.4.2. Legislation and policy changes

New migration packages with comprehensive laws and policies on

international protection, as well as amendments to existing legislation, were

drafted in several EU+ countries or were in the process of negotiation.

Belgium is drafting a new Migration Code to clarify and enhance legislation on

immigration and, for example, to improve the efficiency of the asylum

procedure. The Belgian Council of Ministers approved its structure, which includes the general

principles of the code, such as a reasonable time for managing cases, a more coherent

appeals system, a more dynamic reception system, a clearer legal framework for the return of

rejected applicants and the protection of persons in vulnerable situations.⁴⁰³

Czechia amended its national law in August 2022 to expand the exclusionary clause of

Sections 15 and 15a of the Act on Asylum to cases where the foreigner is subject to

international sanctions, namely a ban on entry or residence. In addition, subsidiary protection

cannot be granted to a foreigner who committed criminal offenses outside the territory, if the

person left the country of origin or the state of last permanent residence solely with the aim of

129

EUROPEAN UNION AGENCY FOR ASYLUM

avoiding criminal prosecution, provided that in Czechia the criminal offenses are punishable

with a prison sentence.

In July 2022, the German government approved the first migration package presented by the

Federal Minister of the Interior. The draft law was subsequently adopted by the German

parliament on 2 December 2022. The package includes a bill to accelerate the asylum

procedure to reduce the burden on BAMF by providing the possibility to have the personal

interview through video-conferencing and without the presence of the legal representative

(Asylum Act, amended Sections 12a and 25) (see Section 4.10) and speed up court procedures

(Asylum Act, amended Sections 77-78) (see Section 4.5). The law also has the objective to

strengthen legal certainty to harmonise and achieve faster decisions in the asylum procedure.

It also provides for the additional possibility to reject an asylum application due to an implicit

withdrawal, while re-shaping the time limits for processing an asylum application (Asylum Act,

amended Section 24).⁴⁰⁴

A new code of laws entered into force in Greece (Law No 4939/2022), systematically

classifying all laws on international protection, reception and temporary protection.

Malta amended the International Protection Act in December 2022. The amendments cover

several aspects and steps in the asylum procedure, including provisions on subsidiary

protection and manifestly unfounded applications. Article 22(3) of the International Protection

Act was amended to include the criteria for exclusion from subsidiary protection, while

Article 22(2) was amended to provide that exclusion from subsidiary protection must be in

accordance with Article 17(3) of the International Protection Act, namely when an applicant has

committed one or more crimes prior to entering Malta. Article 23 was amended to state that

applications may only be considered as manifestly unfounded if the International Protection

Agency established that the applicant does not qualify for international protection.⁴⁰⁵

The International Protection Act was also amended for the subsequent application procedure

(see Section 4.3), the application procedure for children in need of care (see Section 5.6) and

the procedure for temporary humanitarian protection (a national form of protection) (see

Section 4.14). Aditus presented comments on the proposed legislative amendments in June

2022. It welcomed a number of provisions, notably the clarification of the nature of the appeal

procedure, in line with EU law and jurisprudence.⁴⁰⁶

Slovakia amended its Act on Asylum in June 2022 to regulate the hierarchy of national and

international protection statuses, prioritising the consideration and granting of subsidiary

protection based on serious injustice over the granting of asylum for the purpose of family

reunification, and over the granting of asylum on humanitarian grounds. Thus, the first step will

be to assess the need for international protection, and if the conditions for granting

international protection are not met, then the possibility of granting a national status will be

considered.

In Iceland, a Steering Committee on Immigration kicked off its activities on 23 January 2023 to

formulate a detailed policy on immigration and refugee issues.⁴⁰⁷ Prior to the creation of the

committee, on 16 June 2022, the parliament adopted a resolution for the implementation of an

action plan for immigration for 2022-2025 focused on five pillars (society, family, education,

the labour market and refugees). A clear and coherent long-term strategy for immigrants,

refugees and multiculturalism is one of the main strategic objectives of the plan, with special

emphasis on social rights, health care, education and employment.⁴⁰⁸

130

ASYLUM REPORT 2023

In Sweden, the Asylum Commission (Asylkommissionen), a collaborative project between civil

society organisations, researchers and professionals, was carried out between 2019 and 2022

to review the impact of changes made to asylum law in 2015. The commission found many

detrimental effects, including long waits in the procedure and unpredictable asylum

processes, and stressed the importance of research-based knowledge on the experiences of

asylum applicants to form policy design.⁴⁰⁹

Civil society organisations in Sweden protested against the Tidö Agreement, a draft

government policy to transform the Swedish migration policy by increasing evidentiary

requirements for asylum applicants and limiting the right to interpretation and legal

assistance.⁴¹⁰

4.4.3. Case load management and prioritisation policies

In 2022, the elimination of backlogs remained a priority,⁴¹¹ while the number of

applications for international protection increased in several EU+ countries.

The arrival of displaced persons from Ukraine brought further challenges to

national asylum systems.

In Ireland, the Economic and Social Research Institute identified COVID-19,

conflicts and the war in Ukraine as key drivers for the surge in asylum applications.⁴¹² The

latter was an additional pressure on the asylum system, which meant that first instance

resources were diverted from processing asylum applications to registering displaced persons

from Ukraine for temporary protection (see EUAA Situational Analysis on Providing Temporary

Protection to Displaced Persons from Ukraine. A Year in Review, March 2023).

Some EU+ countries took additional measures to address the high influx of cases, such as

introducing prioritisation policies for certain profiles, extending time limits to issue a decision

at first instance, shortening or omitting certain steps in the procedure when the outcome

would be favourable to the applicant and recruiting additional staff. Furthermore, UNHCR

published a paper compiling good practices to guide asylum authorities in effectively

processing applications through robust structures, close cooperation between relevant actors,

and the involvement of legal aid providers and civil society organisations to address systemic

issues.⁴¹³

In Austria, the number of decisions taken in the fast-track procedure increased significantly

in 2022. The practice of fast-track processing focused on applicants from safe countries of

origin and applicants who had already been sentenced by a criminal court.⁴¹⁴

Belgium prioritised certain categories of applicants who were in the reception system.

Targeted action was taken for countries with high recognition rates, which made it possible to

take a decision granting an international protection status for certain profiles without the

organisation of a personal interview and only based on the information in the file (including the

interview at registration) (for example for applicants from Eritrea, Somalia and Syria).

The Immigration Service in Denmark extended processing time limits and reallocated

personnel to prioritise applications submitted under the Special Act on Residence Permits for

Displaced Persons from Ukraine.⁴¹⁵

131

EUROPEAN UNION AGENCY FOR ASYLUM

Similarly, due to the large number of cases received over the last year and the arrival of a

large number of asylum seekers from Afghanistan and people fleeing from Ukraine, in

September 2022 the IND in the Netherlands decided to extend the time limit for a decision by

9 months for all cases where the 6-month time limit had not yet expired on 27 September

2022. In addition, for all asylum applications lodged after 27 September 2022, the time limit

was pre-emptively extended by 9 months, meaning that the IND could take a maximum of

15 months to decide on an asylum application lodged after 27 September and before

1 January 2023. At the start of January 2023, it was uncertain whether this general extension

of the decision-making period would be prolonged for asylum applications lodged after

1 January 2023.

On 23 November 2022, the Regional Court of Den Bosch ruled in favour of the general

extension of the time limit. In contrast, on 6 January 2023, the Regional Court of Amsterdam

issued a judgment declaring the time limit extension to be unlawful. The court maintained that,

even though there was an increase in the number of asylum applications, it was not of such

magnitude that the threshold included in the Aliens Act, Article 42(4b) was reached.⁴¹⁶

In Ireland, the International Protection Office (IPO) introduced a new case load management

system to improve the efficiency of the asylum procedure by channelling specific cases to

different procedures. For example, cases related to minors were prioritised (see Section 5.6).

In addition, Ireland omitted asylum interviews for certain profiles of applicants to speed up

processes (this was the case for applicants from Afghanistan, Eritrea and Somalia).⁴¹⁷ In

November 2022, IPO introduced a revised asylum application procedure. In accordance with

the European Communities (International Protection Procedures) Regulations 2022, an

applicant making an application at IPO would be required to complete the International

Protection Questionnaire onsite at IPO, in addition to completing their preliminary interview.

The questionnaire was reduced significantly to 24 questions in order to enable applicants to

complete the questionnaire at the time of making their application.⁴¹⁸

UNHCR reported that the Spanish Asylum and Refugee Office (OAR) created a unit focusing

on cases of vulnerable applicants, and it improved its practices on the assessment of cases

related to gender-based persecution. The two organisations worked together to improve

prioritisation procedures and the quality of assessments of international protection cases.

In June 2022, the IND in the Netherlands published its first Performance Update, concluding

that deciding quickly on applications was becoming more difficult due to the migration flows

and complex laws and regulations. Cases involving religious conversion or LGBTIQ applicants,

in particular, led to longer processing times and more time spent on training staff.⁴¹⁹ Another

report published in the Netherlands by the investigation agency Anderson Elffers Felix

concluded that a project-based approach to eliminate backlogs or process applications by a

specific group proved valuable in order to provide legal certainty to a large number of asylum

applicants.⁴²⁰

Overall, the capacity of the IND to examine asylum cases was considered insufficient in 2022

and measures were taken to mitigate the lack of capacity and limit waiting times. Measures

included the ongoing recruitment of case officers in various locations, shorter interviews for

applicants likely to be provided international protection and further acceleration of

applications if applicants already requested protection in another EU Member State or came

from a safe country of origin.⁴²¹

132

ASYLUM REPORT 2023

Furthermore, from 26 September 2022, the Netherlands increased the time limit for deciding

on applications for international protection from 6 months to 15 months for first asylum

applications submitted until 1 January 2023, subsequent applications and family reunification

cases for which the statutory decision period did not expire on 27 September 2022.⁴²²

On 8 February 2023, the Advisory Division of the Dutch Council of State issued advice on the

bill extending decision periods in asylum and family reunification cases (see

Section 4.14.2.4).⁴²³

4.4.4. New general guidelines to assess applications

In Bulgaria, the State Agency for Refugees reviewed internal guidelines and

rules and prepared an analysis of national jurisprudence for internal use. The

aim was to improve procedures and reduce the number of cases that courts

send back to the agency following an appeal.

In Germany, the Federal Ministry of the Interior issued new guidelines,

according to which, as of 1 October 2022, for applicants who fear persecution on the basis of

their sexual orientation or gender identity, the decision on the risk of return is to be based on

the assumption that the applicant will openly express their sexual orientation or gender

identity upon a return to the country of origin.⁴²⁴

In February 2022, it was reported that the Irish Department of Justice was omitting interviews

for certain profiles (such as applicants from Afghanistan, Eritrea and Somalia) in order to speed

up the asylum procedure.⁴²⁵ In July 2022, the UN Human Rights Committee published

Concluding Observations on Ireland’s Human Rights Record and urged Ireland to significantly

reduce processing times for applications for international protection.In Norway, the Ministry of

Justice and Public Security issued a new instruction No 15/22, “Assessment of the conditions

for asylum in the Immigration Act, Section 28(1) when the applicant already has a residence

permit in Norway”, for example as family immigrants or after family reunification with a

beneficiary of international protection. The ministry noted that if the applicant has a permanent

residence permit in Norway or a temporary residence permit based on which a permanent

residence permit may be issued, in principle there will not be a well-founded fear of

persecution or a real risk of ill treatment under Section 28(1) of the Immigration Act, but the

UDI must make an individual assessment of whether the negative decision will in fact lead to

the person having to return to their country of origin, taking into consideration for example

whether revocation proceedings have already been instituted, whether the applicant has

separated/divorced from their spouse or whether the applicant is a registered resident at a

different address.⁴²⁶

Through judicial reviews, courts provided guidance to determination authorities on various

complex issues that may arise during the first instance procedure. National courts examined

decisions to exclude applicants for whom there were serious reasons to believe that they had

committed war crimes (see here and here), serious non-political crimes outside the country of

refuge,⁴²⁷ including human trafficking, or where there were serious reasons for considering

that they had been guilty of acts contrary to the purposes and principles of the UN.

In Belgium, CALL overturned a decision on the exclusion of an applicant on the basis that the

Kurdistan Workers' Party (PKK) cannot be considered a terrorist organisation and the applicant

should not be excluded under Article 1F(c) of the Geneva Convention. Considering different

sources of information on the nature, structure, activities and methods of the PKK, CALL noted

133

EUROPEAN UNION AGENCY FOR ASYLUM

that the acts committed by the organisation cannot be qualified as terrorist acts contrary to the

purposes and principles of the UN. CALL added, however, that another exclusion clause may

be applicable in the particular case. Therefore, the case was referred back to the CGRS for

further assessment if the applicant was individually liable for any war crimes committed by the

PKK, within the meaning of Article 1F(a) of the Geneva Convention.⁴²⁸

In Germany, the Federal Administrative Court pronounced a judgment in February 2023 on

BAMF’s use of mobile data carriers to determine the identity and nationality of an asylum

applicant. The court held that the evaluation of digital data carriers to determine the identity

and nationality of an asylum applicant was not lawful without considering other information

and documents. It was only permitted if the purpose of the measure, based on the time it was

ordered, cannot be achieved by less severe means. It noted that, according to the findings of

the administrative court, more lenient means were available to BAMF, such as a marriage

certificate or register comparisons and inquiries about linguistic abnormalities. In this particular

case, the request to hand over the access data for the evaluation of the mobile phone was

assessed to be unlawful.

In Ireland, in the case of a Georgian applicant who falsely claimed international protection

based on sexual orientation, IPAT rejected his credibility in a new claim as well, based on

political opinion. The High Court found that the tribunal failed in not assessing the new claim

at all. The admittedly false claim should have been an element in the general credibility

assessment.

The Italian Supreme Court of Cassation highlighted the manner in which the determining

authority must assess cases involving victims of torture who request international protection

(see Section 5). In addition, the Tribunal of Rome allowed an appeal lodged against a

subsequent application decision and ruled that the procedure should be classified as ordinary

due to the violation of the time limit for a decision in an accelerated procedure.

With regard to the use of medical reports in the examination of an asylum application, the

Council of State in the Netherlands ruled in December 2022 that the ‘component requirement’

was no longer tenable. The ‘component requirement’ means that, if in a forensic medico-legal

report the examiner (for instance, the Dutch Institute for Human Rights and Medical

Assessment (iMMO)) has come to the conclusion that the physical and psychological situation

of the asylum seeker may have affected (heavily) their ability to tell their asylum story in a

complete, consistent and coherent manner during the interviews with the IND, the examiner

should be able to pinpoint directly which components of the asylum story were effected. The

component rule was laid down by the Council of State in its landmark ruling of 27 June 2018.

However, those with relevant expertise (e.g. iMMO) pointed out that from a medical and

scientific point of view the component requirement could not be met satisfactorily for the IND

and the legal courts. Accordingly, in its judgment the Council of State abandoned the view it

adopted in 2018.⁴²⁹

134

ASYLUM REPORT 2023

4.4.5. National policies on cases lodged by specific

profiles and nationalities

Ukrainian applicants

Following the Russian invasion of Ukraine in February 2022, many EU+ countries changed

their policies with regard to applicants from Ukraine. In Bulgaria, the Administrative Court of

Sofia City and the Administrative Court of Varna found in several cases that the termination of

proceedings for international protection were unlawful for Ukrainian applicants who also

applied for temporary protection.⁴³⁰ Belgium, the Netherlands and Sweden suspended

decisions and returns of applicants from Ukraine.⁴³¹

In Denmark, following a decision by the Refugee Appeals Boards’ coordination committee on

24 February 2022, all asylum cases lodged by Ukrainian citizens were put on hold and the

applicants were notified. It was further noted that foreign nationals displaced from Ukraine

who did not have the criteria to obtain a temporary residence permit under the Special Act

could apply for a residence permit or international protection under the rules and procedures

of the Danish Aliens Act.⁴³²

Read more in the EUAA’s: Providing Temporary Protection to

Displaced Persons from Ukraine: A Year in Review

Afghan nationals

Since August 2021 when the Taliban took power in Afghanistan, some EU+ countries

suspended the decision-making process for applicants from Afghanistan and gradually

resumed the decision process in 2022.

In Belgium, the CGRS resumed the assessment of asylum claims lodged by Afghan applicants

in March 2022,⁴³³ noting in several cases that, considering the situation in Afghanistan, there

was no reason to grant subsidiary protection. On 31 March 2022, CALL annulled the decision

of CGRS, noting that the situation did not seem to establish the need to grant subsidiary

protection within the meaning of the recast QD, Article 15(c), but underlined that the situation

remained unstable and changes in the dynamics of the conflict were very recent. It assessed

that the situation in Afghanistan did not allow to make a correct and forward-looking

assessment. On 12 and 13 October 2022, in a chamber of three judges, CALL issued five

rulings, two granting refugee status, two denying refugee status and one annulling the

CGRS’ decision.^{434, 435} In subsequent judgments, CALL ruled that sufficient and correct

information was available to make an assessment, and since then, CALL mostly handed down

judgments following the assessment of the CGRS.

In the Netherlands, the IND, which had applied a moratorium on decisions and departures for

Afghan applicants since August 2021, resumed the decision process on 30 June 2022 on a

case-by-case basis. It assessed the security and human rights situation, while considering

specific groups who may fear persecution or a risk of inhuman treatment.⁴³⁶

135

EUROPEAN UNION AGENCY FOR ASYLUM

In Sweden, a new legal position on the examination of protection needs for citizens from

Afghanistan, in particular the situation of women and girls, was published on 6 December

2022. According to the legal position, the fundamental rights of women in Afghanistan are

violated, therefore women and girls from Afghanistan seeking international protection should

be recognised as refugees on the grounds of membership in a particular social group. The

new legal position allowed for the re-examination of previous cases.⁴³⁷

In December 2022, the EUAA completed the Country Guidance report on Afghanistan,⁴³⁸ and

the recommendations were followed soon after by Germany who announced in early 2023

that it would change its policy on Afghan women, adapting its decision-making practice

towards this profile of applicants.

Similarly, in Denmark, the Refugee Appeals Board eased evidentiary requirements for this

profile of applicants in December 2022⁴³⁹ and subsequently decided to change the Danish

practice and as a main rule provide refugee protection to Afghan women and girls solely

because of their gender. This was applied to all pending cases and cases which received a

negative decision were reopened for this profile of applicants.⁴⁴⁰ In February 2023, the

Refugee Appeals Board granted international protection to an Afghan woman and her

daughter following the change of practice in Denmark.

In addition, the Immigration Service in Finland announced in February 2023 that gender alone

would constitute a sufficient reason to grant protection to Afghan women and girls.⁴⁴¹

In December 2022, the Immigration Service updated its guidelines on processing applications

from Afghans of Hazara background, considering that their situation had deteriorated in

Afghanistan. This aspect was highlighted in the overall assessment of protection needs and

individual circumstances which increased the risk of persecution, including gender,

participation in religious activities and living in an area where the Islamic State-Khorasan

Province (ISKP) had operational capacity and carried out attacks. The Finnish Immigration

Service also announced in March 2023 that it had gathered sufficient, updated country

information from Afghanistan on the security situation of different provinces and had been

able to start making decisions for all Afghan applicants, for some of whom decision-making

had been suspended since July 2021.⁴⁴²

More recently, UNHCR updated its Guidance Note on the International Protection Needs of

People Fleeing Afghanistan, in which it analysed the situation of women and girls and

highlighted other profiles with increased protection needs, such as Afghans associated with

the former government or with the international community, former members of the Afghan

national security forces and Afghans associated with the former international military forces,

journalists and other media professionals, human rights defenders and their defence lawyers,

members of minority religious or ethnic groups, and members of the LGBTIQ community.⁴⁴³

Further clarification on applications from Afghan nationals were provided in Latvia by the

District Administrative Court of Riga, which ruled that the analysis for Afghan applicants should

focus on a larger social group of persons with links with the former Afghan government and

their family members, instead of the group of persons whose family members have been

abducted by the Taliban. In the particular case, the court confirmed the provision of subsidiary

protection.

136

ASYLUM REPORT 2023

Applicants from Ethiopia

After suspending the processing of cases by Ethiopian nationals on 16 December 2021,⁴⁴⁴ the

Coordination Committee of the Refugee Appeals Board in Denmark lifted the suspension on

24 February 2022. The Appeals Board later stated that the general situation in Addis Ababa

was not of such a nature that any person of Tigrayan ethnicity would be at risk of being

arrested, mistreated or abused. Thus a concrete assessment would determine if an applicant's

circumstances met the conditions for issuing a residence permit according to Section 7.⁴⁴⁵

New risk groups in Egypt

In the Netherlands, new risk groups of applicants from Egypt were defined in February 2022

based on a report from the Ministry of Foreign Affairs. The risk groups include journalists,

human rights defenders, political opponents and activists who have voiced significant criticism

against the authorities or government policy, and LGBTIQ persons.⁴⁴⁶

Risk groups in Iran

Following the crackdown of demonstrations in Iran through violent means, NOAS requested

the Norwegian Immigration Service to reassess cases of applicants from Iran, particularly

women who fled gender-related persecution, political opponents, activists for minority rights,

converts and those who were politically active in Norway against the Iranian regime.⁴⁴⁷

Applicants from Iraq

The SMA in Sweden updated its legal position on Iraq on 1 July 2022, following closely the

EUAA Country Guidance on Iraq, published in June 2022.⁴⁴⁸ The legal position refers to

specific sections of the EUAA guidance, namely the actors of persecution, actors who inflict

serious harm and guidance for special profiles. The SMA noted that there was a high level of

indiscriminate violence in Diyala, Dohuk and Ninewa, lower levels in Anbar, Baghdad, Erbil,

Kirkuk and Salah al-Din, and very low levels in Sulaymaniya, Babil, Basra, Kerbala, Missan,

Muthanna, Najaf, Qadissiya, Thi-Qar and Wass.⁴⁴⁹

Applicants from specific regions of Mali

In Belgium, CALL changed the policy toward applicants from Mali due to major upheavals and

a significantly-deteriorated security situation. CALL concluded that the indiscriminate violence

in northern and central Mali caused any civilian applicant from the area to face a serious and

individual threat to their lives. It added that other specific circumstances were not necessary.

The council also underlined that, given the situation in Mali, there was no internal flight

alternative for applicants from northern or central Mali.

On 28 October 2022, CALL pronounced four judgments on the security situation prevailing in

southern Mali. CALL noted that the security situation prevailing in the south of Mali was not

uniform and that a distinction must be made depending on the region of origin of the

applicant. For the district of Bamako and the region of Kayes, CALL ruled that they were not in

the grip of indiscriminate violence as defined by the CJEU, despite a volatile security situation

which must be closely monitored and which should encourage asylum authorities to show

great caution in examining requests for international protection from Malian nationals from

these regions. For the regions of Sikasso and Koulikoro, CALL concluded that there was a

situation of indiscriminate violence but not of an intensity that any civilian ran a real risk of

harm by mere presence in those regions. For these applicants, CALL noted that it was

137

EUROPEAN UNION AGENCY FOR ASYLUM

necessary to consider an applicant’s individual circumstances. This analysis of the security

situation is also applied at first instance by the CGRS.

In Italy, the Tribunal of Catanzaro granted subsidiary protection to a national of Mali due to the

indiscriminate violence and general situation of insecurity in the country of origin and

particularly in the region of Segou.

In the Netherlands, the State Secretary for Justice and Security informed the parliament in

January 2023 about the results of the investigation into the general security situation in parts

of Mali. The State Secretary noted that there was indiscriminate violence in the provinces of

Gao, Menaka and Mopti, in many cases specifically aimed at civilians.⁴⁵⁰

Applicants from Myanmar

In 2023, the Refugee Appeals Board referred two cases back to the Danish Immigration

Service for a new assessment based on updated country of origin information for Myanmar,

following the military coup in February 2021. The Danish Refugee Council (DRC) reported that

in one of these cases the first instance authority provided international protection.⁴⁵¹

Applicants from Somalia

On 23 June 2022, the SMA in Sweden published a new legal position on the examination of

protection needs of Somali nationals. The legal position emphasised that the EUAA's

guidance⁴⁵² in its entirety should be the basis for the assessment of conditions in Somalia. The

document noted that an individual assessment must be made of whether the applicant

belongs to a vulnerable group or has a risk profile based on current country information. In

addition, indiscriminate violence was not assessed to occur at such an exceptionally-high level

in any part of Somalia.⁴⁵³

In July 2022, the National Court of Asylum (CNDA) in France updated its assessment of

indiscriminate violence resulting from a situation of armed conflict which prevailed in

12 regions of Somalia. The CNDA referred particularly to the EUAA Country Guidance: Somalia

from June 2022, the reports of the UN Secretary General of 8 February and 13 May 2022, and

the EUAA COI Report - Somalia: Targeted profiles from September 2021. The court concluded

that indiscriminate violence was taking place in the regions of Bay, Benadir and Lower

Shabelle, however the intensity of this violence was not such that there were serious and

proven reasons to believe that every civilian would face a real risk of serious harm simply

because of their presence in these regions.

Applicants from Sudan

Following a judgment of the Dutch Council of State pronounced on 15 December 2021, the

Netherlands put in place a moratorium on decisions and returns of political opponents from

Sudan between 24 February and 24 August 2022.This allowed the State Secretary for Justice

and Security to investigate the developments that took place in Sudan after the military coup

of 25 October 2021.⁴⁵⁴

Applicants from Syria

On 6 July 2022, the Dutch Council of State found in two judgments “obvious and fundamental

differences” in asylum policies between Denmark and the Netherlands related to Syrian

applicants. The Council of State held that the applicants met the burden of proof by providing

138

ASYLUM REPORT 2023

evidence that the policy of the determining authority in Denmark was to return Syrian

applicants, and this was endorsed by the Danish Refugees Appeals Board. The Council of

State noted that the State Secretary did not conduct a further investigation to eliminate any

doubts about a possible real risk of refoulement.⁴⁵⁵

In Germany, following a 2021 decision by the CJEU according to which there was a ‘strong

presumption’ that a refusal to perform military service in the context of the Syrian civil war

relates to one of the reasons to be granted refugee status, the Federal Administrative Court

ruled in January 2023 that the risk of persecution must still be established in each individual

case, based on a connection between the ground for persecution and the type of persecution

feared.⁴⁵⁶

The legal position published by the Swedish SMA on 11 November 2022 noted the security

situation in Syria, in particular in the provinces (Hassakah, Hama, Homs, Aleppo, Deir ez-Zourt,

Idlib and Raqqa) and highlighted that the city of Damascus could be a reasonable internal

protection alternative for those with sufficiently favourable social and economic conditions.

The SMA concluded that substantial and permanent changes on the conditions in Syria had

not occurred.⁴⁵⁷

Refusal to perform military service

In the context of several conflicts and wars, many EU+ countries placed moratoriums on

decisions and the courts provided clarification on the assessment of these applications for

international protection.

In the Netherlands, on 29 June 2022, the IND introduced a temporary 6-month suspension of

decisions and departures for Russian conscripts (men aged 18 to 27) who had deserted or

refused to perform service. The decision did not apply to professional Russian soldiers who

deserted and other categories of Russian applicants, such as critics of the invasion of

Ukraine.⁴⁵⁸ The decision and departure moratorium was extended in December 2022 until

29 June 2023.⁴⁵⁹

The SMA in Sweden published on 11 November 2022 a new legal position on the assessment

of applications for international protection lodged by Syrian nationals. The SMA considered

that Syrians summoned for military service or who deserted ran a general risk of

persecution.⁴⁶⁰

The Supreme Administrative Court in Czechia ruled that a refusal to perform military service,

followed by criminal prosecution and punishment, may be considered an act of persecution.

In France, the CNDA confirmed OFPRA’s decision to refuse international protection to an

asylum applicant of Kurdish origin who refused to fulfil his military obligations in Türkiye. In this

judgment, the CNDA defined conscientious objection to military service as “a real personal

conviction, having a proven degree of force or importance, consistency and seriousness for

the person concerned to oppose any fight, motivated by a serious and insurmountable conflict

between the obligation of service in the army and its own conscience or its own sincere and

profound convictions, in particular of a political, religious, moral or other nature”.

Courts in Germany examined claims from applicants refusing to perform military service in

Syria. The Higher Administrative Court of Bautzen found no indications of possible political

persecution for a Syrian applicant who alleged a risk of conscription to military service. The

court noted individual circumstances which led it to conclude that the applicant would not be

139

EUROPEAN UNION AGENCY FOR ASYLUM

obliged to perform military activities, including war crimes, within the meaning and

requirements set up in the CJEU judgment of EZ v Bundesrepublik Deutschland (Federal

Republic of Germany).

In January 2023, the Federal Administrative Court in Germany ruled in several cases

concerning military draft evasion and the benefit of refugee protection for beneficiaries of

subsidiary protection from Syria. The Federal Administrative Court overturned the appealed

judgments and referred the proceedings back to the Higher Administrative Court, holding that

it is for the competent national authorities and courts to assesses the plausibility for the strong

presumption that the refusal to perform military service was related to a reason for

persecution in light of all the circumstances.

For Eritrea, Lower Saxony’s Higher Administrative Court highlighted the necessity to

distinguish the military and civilian components of national service when assessing the cases

of married and pregnant women and mothers.

The UN Committee against Torture (UNCAT) found that the deportation by Switzerland of an

Eritrean woman facing military service would violate Article 3 of the UN Convention against

Torture.

Applicants with religious-based claims, including apostates or atheists

In February 2022, the IND in the Netherlands published revised work instructions on the

assessment of applications from apostates and atheists.⁴⁶¹ The need for the revision arose

after two judgments of the Council of State pronounced on 19 January 2022 (202102293/1/V2

and 202005668/1/V2) ruled that the way in which the IND carried out the investigation and

assessment of applications from apostates or atheists from Iran, but also in general, was not

sufficiently clear and the IND should develop a working method to assess credibility. It should

also sufficiently distinguish between asylum applications from apostates and those from

atheists, which it could later use for an assessment of applications from foreign nationals who

claim to have converted to Christianity.⁴⁶²

The Dutch Gave Foundation noted that the IND’s new instructions on the assessment of

applications from apostates still lacked clarity and consistency. The concepts, such as ‘forms

of apostacy’ and ‘types of apostacy’, are vague and not well defined.⁴⁶³

In addition, in September 2022, the Dutch Council of State overturned an inadmissibility

decision in a subsequent application concerning converting to Christianity and found that the

IND had insufficiently assessed the growth of faith since the first asylum application. The

Council of State considered that statements about a growth in faith can generally be sufficient

for a new substantive credibility assessment of the conversion. Thus, the Council of State

ruled that the State Secretary must then assess the statements from the earlier application

and those made in the subsequent asylum application jointly.

Applicants who claim persecution based on political opinion

In Ireland, the High Court provided guidance to IPO and IPAT on how to examine claims of

persecution based on political opinion. The court held that the principles drawn by the UK

Supreme Court in the judgment HJ (Iran) v SSHD, which concerned the concealment of sexual

orientation upon a return to the country of origin, were applicable in situations where an

applicant for international protection would be expected to conceal their political beliefs to

avoid persecution.

140

ASYLUM REPORT 2023

Seeking guidance from the CJEU on CEAS provisions, the Dutch Council of State referred

questions for a preliminary ruling on the recast QD, Article 10, for persecution based on

political opinion. The council asked whether a political opinion was sufficient to be invoked as

a motive for persecution and what weight should be given to the strength or the importance of

that political opinion or thought in the assessment of an application for international

protection. Moreover, the Council of State asked about the criterion to be applied and

whether the political opinion must be deeply-rooted and the applicant would be expected to

refrain from expressing it if returned to the country of origin in order not to trigger negative

attention from an actor of persecution.

4.4.6. Personal interviews

In 2022, EU+ countries adopted legislative changes involving personal

interviews during the asylum procedure. They also examined the reliability of

specific software and used new IT tools to assist case officers during the

personal interview. In addition, courts reviewed claims that personal

interviews were conducted unlawfully, while civil society organisations raised

specific concerns about the manner in which personal interviews were

carried out in several EU+ countries.

In Cyprus, a legislative proposal was approved by the Council of Ministers amending the

Refugees Act of 2000. If adopted by the parliament, the Asylum Service will be obliged to

obtain a health care professional’s advice for an applicant’s ability to be interviewed.⁴⁶⁴ The

NGO I Have Rights noted that interview conditions in Samos, Greece did not allow applicants

to fully express their grounds for asylum.⁴⁶⁵ In Belgium, the legal basis for remote interviews

was established (see Section 4.4.12).

After the conclusion of the pilot project “Written Interviews” (schriftelijk horen) in

October 2022, the IND in the Netherlands started another pilot offering written interviews to

Syrian, Turkish and Yemeni nationals (“Paper and Ink procedure”). The invitation to partake in

a written interview is sent 1 week before the start of the written interview, which was deemed

insufficient by lawyers. The IND is planning to extend this period to 4 weeks.⁴⁶⁶ In addition,

the IND introduced the practice of interviewing certain applicants at their accommodation

place, instead of the applicant making an appointment and visiting the IND.⁴⁶⁷

The Court of The Hague annulled a negative decision due to the failure of the determining

authority to send the registration interview to the legal representative, thus depriving the

applicant of procedural safeguards.

In Lithuania, the Supreme Administrative Court ordered the Migration Department to re-

examine an applicant’s request for international protection after concluding that the personal

interview had not been conducted in a lawful manner. The court noted that the applicant was

ill when he was interviewed, had not consented to the absence of his lawyer and was

interrupted by Migration Department staff because another applicant was waiting to have an

interview.

In Czechia, the Organisation for Aid to Refugees observed instances when only parts of the

evidence were used, while others were disregarded. In one case, which reached the Regional

Court in Brno, the court concluded that the Ministry of the Interior was trying to find

141

EUROPEAN UNION AGENCY FOR ASYLUM

inaccuracies in the applicant’s statement in order to claim he was untrustworthy, in addition to

using only parts of country of origin information to prove its conclusions.⁴⁶⁸

Fundación Cepaim noted that personal interviews in Spain were not carried out by the

determining authority but by police officers without adequate training, in an inadequate

environment and without the necessary legal counsel and information. The NGO further noted

that some applicants were not provided with copies of their statements at the end of the

interview. The organisation added that the online portal through which applicants may submit

additional observations does not function properly and it was not guaranteed that additional

documents were received.⁴⁶⁹ In order to improve the quality of interviews, UNHCR provided

the police with a training plan on interviewing techniques. Together with the EUAA, a new

training programme was developed in 2022 for new OAR case officers.

4.4.7. Decisions issued on first instance asylum

applications

An asylum application is considered to be closed at first instance once a

decision has been issued by a national authority. According to Regulation (EU)

2020/851 amending Regulation (EC) 862/2007,⁴⁷⁰ there are five decision

outcomes that should be reported by EU+ countries:

Refugee status (as per the 1951 Geneva Convention);

Subsidiary protection status;

Authorisation to stay based on humanitarian reasons under national law

(humanitarian protection);^xxxvii

Temporary protection status (under EU legislation) - this is not analysed in

this section;^xxxviii and

A negative decision resulting in the rejection of the application.

Decisions granting humanitarian protection are considered to be negative

decisions for international protection.

In 2022, asylum authorities in EU+ countries issued approximately 646,000 first instance

decisions, which was one-fifth more than in 2021 and the most since 2017. At the same time,

many more applications were lodged in 2022 (up by one-half), particularly in the second half

of the year.

Overall, more applications were lodged than first instance decisions issued (see Figure 13), as

seen in previous years. During the first half of 2022, the number of decisions taken lagged

behind the number of applications received by around one-third. Following a surge in

applications in the second half of the year, the gap widened further, with two-thirds more

xxxvii

Granting humanitarian protection is not harmonised at the EU level and is only reported to Eurostat by 23 out

of 31 EU+ countries (Austria, Cyprus, Croatia, Czechia, Denmark, Estonia, Finland, Germany, Greece, Hungary,

Iceland, Italy, Liechtenstein, Lithuania, Malta, the Netherlands, Norway, Poland, Romania, Slovakia, Spain, Sweden

and Switzerland). In addition, various forms of humanitarian protection can be granted separate from the asylum

procedure, and thus, the positive decisions may not be reported to Eurostat under this indicator.

xxxviii

Based on the Temporary Protection Directive, Regulation 2001/55/EC.

142

ASYLUM REPORT 2023

asylum applications than decisions at first instance. By the end of 2022, applications

outnumbered first instance decisions by 345,000, leading to more cases pending at first

instance across most EU+ countries than a year earlier (see Section 4.6).

As in previous years, around one-half of decisions on first instance asylum applications were

issued to 18-to-34-year-old applicants. Over one-quarter of all decisions were issued to minors.

In total, women and girls received one-third of all decisions.

Applications outnumber first instance decisions

for a second year in a row

Figure 13. Applications for international protection and first instance decisions in

EU+ countries, Q1 2021-Q4 2022

Decisions at first instance

Applications for international protection

300,000

200,000

100,000

2021

2022

Source: Eurostat [migr_asydcfstq] and [migr_asyappctzm] as of 13 April 2023.

Three EU+ countries issued nearly two-thirds of all first instance decisions in 2022:

Germany (31%), France (20%) and Spain (13%). These were followed by Italy (8%), Austria (6%)

and Greece (6%) (see Figure 14).

Ireland, Estonia, Iceland, Latvia and Slovenia issued the most first instance decisions on

record. Austria and Germany issued the most first instance decisions since 2017, the

Netherlands and Slovakia the most since 2016, Bulgaria since 2015 and Poland since 2009.

143

EUROPEAN UNION AGENCY FOR ASYLUM

The increase in Germany was predominantly due to decisions issued to Afghan nationals. But

the number of decisions also rose for other main nationalities, as seen for applicants from

Syria, Iraq and Türkiye (in descending order). In addition, nationals of Colombia, Georgia,

Moldova and Yemen received the most decisions on record in Germany.

For the second consecutive year, Austria issued roughly twice as many decisions than in the

previous year, especially to applicants from India, Morocco, Pakistan, Syria, Tunisia, and, to a

lesser extent, Afghanistan and Somalia.

646,000

decisions issued on first instance asylum

applications in 2022

of first instance decisions issued granted an

EU-harmonised protection status (refugee or

39%

subsidiary protection)

of Syrian applicants were granted

protection in the EU

93%

144

ASYLUM REPORT 2023

Germany issued the most first instance decisions since 2017.

Figure 14. First instance decisions by Top 10 EU+ countries in issuing decisions, 2022

compared to 2021

Germany

+49%

France

-5%

Spain

+17%

Italy

+22%

Austria

+108%

Greece

+4%

Belgium

+14%

Netherlands

+5%

Switzerland

+16%

2021

Sweden

-2%

2022

Other

+10%

50,000

100,000

150,000

200,000

Source: Eurostat [migr_asydcfsta] as of 13 April 2023.

First instance decision-making in Spain also rose from 2021, along with the rising number of

applications. Nonetheless, decisions remained lower than during the peak in 2020. Spain

continued to issue the majority of decisions to Venezuelans, Colombians and several other

Latin American nationalities.

Estonia, which usually issues fewer than 200 decisions annually, reached 2,200 decisions in

2022, almost entirely because of applications lodged by Ukrainian nationals.

In contrast, first instance decision-making by France decreased slightly compared to 2021,

despite rising applications. France issued fewer decisions to multiple nationalities, including

applicants from Bangladesh, Guinea, Côte d’Ivoire and Nigeria. Nonetheless, decisions for

some main citizenships - namely Albanians, Georgians and Turks - increased.

Despite increases in decisions on first instance applications between 2021 and 2022, the vast

majority of EU+ countries had new applications outweighing the number of decisions issued,

adding pressure to national asylum systems. Exceptionally, Greece issued more first instance

decisions than it received applications in 2022.

Most first instance decisions in EU+ countries were issued to nationals of Syria and

Afghanistan (see Figure 15), accounting for 3 out of 10 decisions issued in 2022. Both

citizenships received decisions predominantly in Germany. In fact, Germany issued almost

two-thirds of all decisions in the EU+ to Syrians and more than two-fifths of decisions to

Afghan applicants.

145

EUROPEAN UNION AGENCY FOR ASYLUM

More first instance decisions issued in 2022 to nearly all

main countries of origin

Figure 15. First instance decisions in EU+ countries by Top 10 countries of origin receiving

decisions, 2022 compared to 2021

Syria

+25%

2021

Afghanistan

+65%

2022

Venezuela

+61%

Iraq

+31%

Pakistan

+7%

Türkiye

+31%

Bangladesh

+25%

Colombia

-7%

Georgia

+74%

Nigeria

-19%

Other

+9%

50,000

100,000

150,000

200,000

250,000

Source: Eurostat [migr_asydcfsta] as of 13 April 2023.

In addition, Germany issued more than one-half of all decisions for citizens of Iran, Iraq,

Moldova, North Macedonia, Serbia and others. Meanwhile, Spain issued 9 out of 10 decisions

to applicants from Venezuela.

Nationals of Türkiye (25,000), Bangladesh (21,000) and Georgia (19,000) received the most

decisions on record, mainly in Germany and France for Georgians and Turks and in France

and Italy for Bangladeshis. Decisions issued to citizens of Afghanistan, Egypt, Georgia, India,

Mali, Morocco, North Macedonia, Tunisia and Venezuela increased at least by one-half from

the previous year.^xxxix

While increases in decisions were widely reported, a few citizenships had fewer decisions in

2022 than in 2021, namely applicants from Colombia, Côte d’Ivoire, Eritrea, Guinea, Iran,

Moldova, Nigeria and Russia.^xl In fact, decision-making on applications submitted by nationals

of Iran and Russia decreased for the fifth consecutive year.

xxxix

Only nationalities with at least 5,000 decisions issued in 2022 were considered.

^xl Only nationalities with at least 5,000 decisions issued in 2022 were considered.

146

ASYLUM REPORT 2023

4.4.8. Withdrawn applications

An asylum application can be withdrawn for various reasons before a final

decision has been issued, regardless of whether an application is pending

at first or at higher instances. For reporting purposes, withdrawn

applications can be measured based on two indicators:

‘explicit’ withdrawals refer to cases where the applicant no longer

needs international protection and notifies the authorities to

withdraw the application; and

‘implicit’ withdrawals concern cases where the authorities fail to

locate the applicant and therefore it is considered that the

applicant has abandoned the procedure. Data on implicit

withdrawals may cover cases prior to the reference year since an

applicant may have absconded long before the withdrawal was

noted and reported.

In 2022, about 140,000 applications were withdrawn in EU+ countries, which was twice as

many as in 2021 and the most since 2016. At the same time, the number of asylum

applications lodged in EU+ countries increased steadily (one-half more than in 2021) but at a

slower rate than the rise in withdrawals. The ratio of withdrawn applications to applications

lodged thus rose from about 1 in 10 in the previous 4 years to 1 in 7 in 2022. Over two-fifths of

the withdrawals occurred in the last 4 months of 2022, with peak occurrences in October and

November 2022.

Around four in every five withdrawals were by male applicants and almost three-fifths by

applicants between 18 and 34 years of age. In 2022, the most withdrawals since at least 2008

were recorded for younger applicants (14-17 years old), which was twice as many as in 2021.

Furthermore, the number of withdrawn applications by older applicants (65 years or older)

tripled from 2021, reaching 960 applications, which was the most since 2016.

At least four-fifths of all withdrawn applications in 2022 were implicit.^xli In most EU+ countries

with available data,^xlii the majority of withdrawals were implicit. The most notable exceptions

included Cyprus, Denmark, Finland, France, Ireland and Norway, where explicitly withdrawn

xliii

applications ranged between 66% and 94% of all withdrawn applications.

It is possible that

an asylum applicant implicitly withdraws their application from one EU+ country in order to

apply again in another one, thus indicating secondary movements towards other EU+

countries. In this regard, there was a pattern of many implicit withdrawals, and thus secondary

movements, from the countries along the Balkan route and countries at the EU’s external

borders.

Almost all EU+ countries recorded more withdrawals in 2022 compared to 2021. Exceptions

included Greece, Latvia and Malta, where withdrawals decreased, and France, where they

remained stable. The sharpest rise took place in Austria and Bulgaria, where five times as

many withdrawals were recorded compared to the previous year (see Figure 16). For the first

time on record, in 2022, Austria became the top EU+ country for withdrawn applications,

^xli In 7% of cases, the type of withdrawal was not reported. Most of these cases concerned Romania.

^xlii Romania did not report data on the type of withdrawal.

xliii

Analysis was restricted to EU+ countries with at least 300 reported withdrawals in 2022.

147

EUROPEAN UNION AGENCY FOR ASYLUM

accounting for almost one-third of the total. Bulgaria followed at a distance, accounting for

one-tenth of the total.

At lower levels, important relative increases took place in Denmark (five times as many as

in 2021), Poland (almost four times as many) and Cyprus (over twice as many). In addition,

several countries recorded the most withdrawals since 2008, including Austria, Bulgaria,

Czechia, Lithuania, the Netherlands, Portugal, Romania, Slovakia and Slovenia, whereas

Cyprus recorded the most since 2010 and Croatia since 2013.^xliv While recording a decline of

one-tenth from 2021, Greece continued to receive the third-most withdrawals.

The number of withdrawn applications in 2022 increased in

most countries, notably in Austria and Bulgaria

Figure 16. EU+ countries with the most withdrawals, 2022 compared to 2021

Other

2021

Netherlands

Sweden

2022

Belgium

Croatia

Slovenia

Poland

Spain

Cyprus

Romania

Germany

Italy

Greece

Bulgaria

Austria

10,000

20,000

30,000

40,000

Source: Eurostat [migr_asywitha] as of 13 April 2023.

In terms of nationality, one-quarter of all withdrawals were by Afghan nationals. Afghans

withdrew over 35,000 applications in 2022 compared to 18,000 in 2021, largely in Austria and

Bulgaria (see Figure 17). Furthermore, in 2022, Afghans accounted for almost one-half of all

withdrawn applications by minors and represented two-thirds of all withdrawals in the

14-17 age group.

In 2022, Indians emerged as the second nationality to withdraw the most applications in

EU+ countries. The surge in withdrawals by applicants from India was staggering, with over

nine times as many withdrawn applications as in the previous year. The vast majority were

withdrawn by this citizenship in Austria, followed at a distance in Cyprus and Slovenia.

^xliv Analysis was restricted to EU+ countries with at least 300 reported withdrawals in 2022.

148

ASYLUM REPORT 2023

All withdrawals in Austria^xlv and Slovenia were implicit, suggesting strong secondary

movement flows across the Balkan route towards other destination countries. The flow of

Indian applicants through the Balkan route was enabled by Serbia’s visa-free policy.⁴⁷¹

Syrians, Ukrainians, Turks, Pakistanis and Tunisians (in descending order) also withdrew a high

number of applications. All recorded large-scale increases compared to 2021, with the most

notable rises for Ukrainians (15 times as many withdrawals as in 2021) and Tunisians (over

3 times as many). The high level of withdrawn applications by Ukrainians is likely related to the

activation of the Temporary Protection Directive, after which many Ukrainians withdrew their

asylum application and instead registered for temporary protection.

Austria was the main country for withdrawn applications

across most citizenships

Figure 17. Citizenships with the most withdrawn applications by EU+ countries recording

the most withdrawals, 2022 (bubbles) compared to 2021 (legend)

Source: Eurostat [migr_asywitha] as of 13 April 2023.

Austria was the top country for withdrawals by Syrians, Turks, Pakistanis and Tunisians,

whereas Romania accounted for over two-fifths of the withdrawals by Ukrainians. Other

notable instances of withdrawals by Syrians were in Bulgaria and Greece, while a large

number of Ukrainian applications were also withdrawn in Bulgaria, as well as in Denmark and

Sweden.

On a smaller scale, withdrawals rose significantly for Egyptians (mainly in Italy and Austria),

Russians (mainly in Poland), Colombians (largely in Spain) and Moroccans (mainly in Austria

and Bulgaria), in descending order.^xlvi

^xlv According to Article 25(2) of the Austrian Asylum Act of 2005, in Austria it is not possible to withdraw an asylum

application explicitly.

^xlvi Analysis was restricted to citizenships with at least 1,000 reported withdrawals in 2022.

149

Asylum Report 2023 - page 3