About this case:

• Citation:
  [2024] IESC 42
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Elizabeth Dunne

Delivering judgment for the Supreme Court, Ms Justice Elizabeth Dunne opined that it “seems to me that the inclusion of the words ‘attributed in part’ do not render impossible in practice or excessively difficult the entitlement of an applicant for international protection to have access to the labour market”, but concluded that it was “far from clear” that Directive 2013/33/EU had been properly transposed into Irish law.

Background

On 2nd September 2019, LK applied for international protection in the State. A preliminary interview was scheduled for 16th September 2019 which LK did not receive notification of. LK’s social worker thereafter arranged an interview for 12 December 2019, and LK received an IPO 2 questionnaire to complete which was to be returned by 6th January 2020.

Four extensions of time were granted by the International Protection Office (IPO) to facilitate the submission of the questionnaire due to difficulties securing a translator, the necessity for legal advice and due to COVID-19 restrictions. Ultimately, on 25 August 2020, the questionnaire was submitted to the IPO.

Separately, on 20th June 2020 LK sought to apply for a labour market access permission pursuant to regulation 11 of the European Communities (Reception Conditions) Regulations 2018, S.I. No. 230/2018, which enable an international protection applicant to apply for a labour permit where 9 months from their application date have passed without a first instance decision being made in respect of their application, and where this situation cannot be attributed, or attributed in part, to the applicant. 

The 2018 Regulations transposed Article 15(1) of Directive 2013/33/EU of 26th June 2013, which obliges member states to ensure that applicants can access the labour market no later than nine months from the date when the application for international protection was lodged if a first instance decision by the competent authority has not been taken and the delay cannot be attributed to the applicant.

The labour permit was refused by letter dated 28th August 2020, stating that the delay in the issuance of a first instance decision was attributable to LK. This decision was affirmed upon review, and LK’s appeal to the International Protection Appeals Tribunal (IPAT) was also refused, with the IPAT highlighting his “non-engagement” with the process and inexplicable delays on his part.

The High Court

LK secured leave to apply for judicial review of the IPAT’s decision, and sought a declaration that the appellants failed to adopt the measures necessary to transpose and/or implement Article 15(1) of the 2013 Directive and sought damages for same.

Mr Justice Mark Heslin held inter alia that the IPAT’s decision was not evidence-based and was made in breach of fair procedure and constitutional justice. The High Court also identified a “material difference” between the wording of Article 15(1) of the Directive and Regulation 11(4)(b) of the 2018 Regulations, amounting to a failure to transpose the former.

The judge considered that the Irish transposing provision generated a situation whereby a labour permit could be refused if any delay could be attributed to an international protection applicant.

In a further hearing, the High Court awarded Francovich damages to LK in the sum of €21,877.44.

The appellants were granted leave to appeal to the Supreme Court, identifying three issues to be addressed concerning the nature of the delay for the purposes of Article 15(1), whether the manner in which the 2018 Regulations transposed the Directive was sufficiently serious to give rise to Francovich damages, and whether the Supreme Court should, having regard to the extant judgment in Joined Cases C-322/19 and C-385/19 KS & MHK IPAT, refer questions to the CJEU concerning the appropriate interpretation of the Directive and the concept of delay.

The Supreme Court

Ms Justice Dunne analysed the periods of delay which concerned the IPAT and the High Court. Acknowledging that not all of the delay could be attributed to LK, the judge considered that his application could not be processed while he failed to comply with his obligations.

Finding that the trial judge erred in his approach to the question of delay, the court expressed the view that there were numerous periods over the nine months from when the respondent first applied for international protection where there was significant delay on his part in providing the questionnaire.

Moving to examine Article 15(1), Ms Justice Dunne highlighted by reference to KS that the Directive itself gave no guidance as to what acts constitute a delay attributable to an applicant for international protection, though found it clear that an applicant had an obligation to cooperate with the competent authorities in the processing of their application.

The Supreme Court then assessed the transposition of the Directive, noting that “it is impossible not to have regard to the fact that the wording in the 2018 Regulations is different from that used in the Directive, by reason of the inclusion of the additional words, ‘attributed in part’.”

Finding that it may be correct to say that the obligation in Article 15 is to provide effective access to the labour market as opposed to an automatic right of access after 9 months, Ms Justice Dunne opined that the matter was not acte clair where a number of questions arose as to the correct approach to considering delay for the purposes of the Directive.

The Court declined to consider in detail the issue of Francovich damages pending the outcome of the CJEU’s decision.

Conclusion

Accordingly, the Supreme Court referred four questions to the CJEU, concerning whether: 

• in considering whether delay is attributable to an international protection applicant it was appropriate to have regard to their non-engagement;
• delay encompasses only delay which can be exclusively attributed to an applicant;
• where there is unexplained delay on part of the applicant and where there has been delay on part of the State, could the delay be partly attributed to the applicant or whether any delay must be exclusively the applicant’s; and
• the inclusion of “attributed in part” in regulation 11(4)(b) of the 2018 Regulations meant that Ireland had failed to transpose the Directive?

L.K. v The International Protection Appeals Tribunal & Ors [2024] IESC 42