Facts: LK applied for international protection in Ireland in September 2019. A preliminary interview was scheduled two weeks after he applied for international protection, but he did not receive written notification of this date and was never contacted personally. Through his social worker, an interview was arranged for LK for 12 December 2019. He received a questionnaire, for which he was granted four extensions of time, including for reasons relating to access to legal advice, COVID-19 and securing a translator. The applicant submitted his questionnaire on 25 August 2020. Separate to this process, the applicant applied for labour market access in June 2020, but this was refused and the cited reason was that the delay in issuing a decision on his international protection application was attributable to him. This decision was upheld on review. In the High Court, Heslin J. quashed the decision and held that the applicant was entitled to Frankovich damages.
The International Protection Appeals Tribunal, the Minister for Justice and the Attorney General appealed the case to the Supreme Court.
Reasoning: To start, Article 15 of the recast Reception Conditions Directive 2013/33/EU requires Member States to grant labour market access to international protection applicants after maximum waiting period of nine months if a first instance decision has not been taken on their international protection application and the delay cannot be attributed to the applicant. The Directive is transposed in Ireland in the European Communities (Reception Conditions) Regulations 2018, which provides that a labour market access permission may be granted to an applicant after a period of 9 months (subsequently reduced to 6 in Ireland) so long as a first instance decision has not been taken on the application and the delay cannot be attributed, or attributed in part to the applicant. The “attributed in part” in the transposition does not feature in the Directive.
On reviewing the reasons for the delay in completing the questionnaire, the Supreme Court held that the applicant was not responsible for all of the delays, including the first delay in failing to be informed of a preliminary interview and there were good reasons for other delays, including the COVID-19 pandemic and difficulties with scheduling an appointment. However, there were insufficient reasons given for the overall lengthy delay in completing the questionnaire. The Supreme Court held that the trial judge erred in his approach to the question of delay on the part of the applicant.
The question that then arose is how the various elements of delay in processing the application were to be attributed. The appellants had argued that the right is not absolute and the insertion of “attributed in part” was permitted due to the discretion afforded to Member States under the Directive. The Supreme Court found that where the delay can be attributed to both the applicant and the State, it was unclear as to how to weight the different periods of delay and it was further unclear as to whether attributed in part makes it difficult to exercise rights conferred by the EU legal order.
The Supreme Court held that there was no clear answer to the case and decided to refer a preliminary reference to the CJEU.
Decision: It was held that the case is not acte clair and thus the Supreme Court stayed proceedings and referred four questions to the CJEU.
