The applicant was a Ghanaian national who applied for refugee status in 2010 which was refused following a decision of the Refugee Appeal Tribunal in January 2011. She applied for subsidiary protection on 8 October 2013. By decision dated 5 November 2013 the Minister for Justice and Equality refused to entertain this application for subsidiary protection, contending that she had not made the application within the administrative deadline of 15 days from the date of the issuing of a proposal to deport her (which issued in 2011).
The applicant subsequently instituted judicial review proceedings, arguing that the 15 day time limit infringed the principle of equivalence because no similar time limit was contained in respect of refugee applications. The applicant’s proceedings were rejected by the High Court on 16 October 2014 ( IEHC 456.) The applicant appealed to the Court of Appeal and on 10 June 2015, the court decided to make a reference to the Court of Justice pursuant to Article 267 TFEU ( IECA 118) in the following terms:“First, can an application for asylum which is governed by domestic legislation which reflects a Member State’s obligations under the Qualification Directive be regarded as an appropriate comparator in respect of an application for subsidiary protection for the purposes of the principle of equivalence?
Second, if the answer to the first question is in the affirmative, is it relevant for this purpose that the time limit imposed in respect of applications for subsidiary protection
(i) has been imposed simply administratively and
(ii) that the time limit serves important interests of ensuring that applications for international protection are dealt [with] within a reasonable time?”
The decision of the Court of Justice was delivered on 20 October 2016. The Court first held that the principle of equivalence did not apply, given that the differing procedures concerned “two types of applications based on EU law.” The principle of equivalence was therefore engaged only where the comparator was between an application based on national law on the one hand and that based on EU law on the other. However, the Court of Justice went on to reformulate the question asked to consider whether the 15 day time limit breached the principle of effectiveness, despite the fact that this issue had not been argued before the High Court or the Court of Appeal.
The Court of Justice in its judgment concluded that the principle of effectiveness must be interpreted as precluding a national procedural rule, such as that at issue in these proceedings, which requires an application for subsidiary protection status to be made within a period of 15 working days of notification, by the competent authority, that an applicant whose asylum application has been rejected may make an application for subsidiary protection.
The proceedings then resumed before the Court of Appeal to apply the decision of the Court of Justice and reach a final determination in the proceedings.
The Court of Appeal held that it was bound to give effect to the decision of the Court of Justice. The effect of that decision was to hold unambiguously that the 15 working day time limit governing applications for subsidiary protection violated the EU principle of effectiveness. In the light of that decision the Court of Appeal was satisfied that it was obliged to suspend the operation of the 15 day rule so that it could no longer provide the legal basis for any administrative decision which had previously sought to apply that rule on the premise that it was of full force and effect.
In the present case the Minister refused to permit the applicant to submit an application for subsidiary protection on the ground that it was out of time by reference to the 15 day rule. In view of the court’s conclusions regarding the effect of the Court of Justice’s decision and its binding character, it followed, therefore, that the Minister’s decision was based upon a rule which had been conclusively adjudicated to be contrary to EU law.
It followed in turn that the Minister’s decision of 5 November 2013 which refused to permit the applicant to make an application for subsidiary protection on this ground must be quashed.