KS and MHK v International Protection Appeals Tribunal, the Minister for Justice and Equality and the Advocate General and RAT and DS v Minister for Justice and Equality (Joined Cases C-322/19 and C-385/19)

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KS and others v International Protection Appeals Tribunal and Minister for Justice and Equality and others
Respondent/Defendant:Minister for Justice and Equality, Advocate General and the International Protection Appeals Tribunal
Court/s:Court of Justice of the European Union (CJEU)
Citation/s:ECLI:EU:C:2021:11
Nature of Proceedings:Preliminary Reference
Judgment Date/s:14 Jan 2021
Judge:Piçarra N (Rapporteur)
Category:Refugee Law
Keywords:Asylum, Common European Asylum System (CEAS), Dublin Regulation, Employment, Reception Conditions, Refugee Law
Country of Origin:Pakistan, Bangladesh, Iraq
URL:http://curia.europa.eu/juris/document/document.jsf?text=&docid=236427&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1675215

Facts: KS, MHK, RAT and DS applied for international protection in Ireland between 2015 and 2018. They were subsequently issued with transfer decisions to other Member States pursuant to the Dublin III Regulation 604/2013, which they appealed.

In the interim, all four applicants had been refused permission to access the labour market due to the exclusion of persons in Dublin proceedings from the eligible categories of applicants in Ireland’s transposition of the recast Reception Conditions Directive 2013/33/EU. The applicants challenged these refusals. The High Court and the International Protection Appeals Tribunal, on hearing the challenges, respectively stayed proceedings and submitted preliminary references to the CJEU.

The questions posed centred on the interpretation of ‘applicant’ under the recast Reception Conditions Directive and the circumstances in which a delay in examining an application for international protection can be attributable to the applicant for the purposes of Article 15 of the Directive. The High Court also posed a question in relation to the interpretation of EU law where Ireland has not opted into related legislation.

Reasoning: The CJEU first addressed the question of whether Irish courts can take into account the provisions of legislation to which Ireland has not opted in ― in particular, the recast Asylum Procedures Directive 2013/32/EU. The CJEU held that, due to the requirement of a uniform application of EU law and the principle of equal treatment, along with the fact that the recast Reception Conditions Directive and the recast Asylum Procedures Directive form part of the same body of law, the Common European Asylum System, account should be taken of the recast Asylum Procedures Directive when interpreting the recast Reception Conditions Directive.

Secondly, the CJEU held that Article 15 of the recast Reception Conditions Directive must be interpreted as not excluding applicants for international protection from accessing the labour market on the sole ground that they have been issued with a Dublin transfer decision. The CJEU recalled the broad definition of ‘applicant’ under Article 2(b) of the recast Reception Conditions Directive and held Facts: KS, MHK, RAT and DS applied for international protection in Ireland between 2015 and 2018. They were subsequently issued with transfer decisions to other Member States pursuant to the Dublin III Regulation 604/2013, which they appealed.

In the interim, all four applicants had been refused permission to access the labour market due to the exclusion of persons in Dublin proceedings from the eligible categories of applicants in Ireland’s transposition of the recast Reception Conditions Directive 2013/33/EU. The applicants challenged these refusals. The High Court and the International Protection Appeals Tribunal, on hearing the challenges, respectively stayed proceedings and submitted preliminary references to the CJEU.

The questions posed centred on the interpretation of ‘applicant’ under the recast Reception Conditions Directive and the circumstances in which a delay in examining an application for international protection can be attributable to the applicant for the purposes of Article 15 of the Directive. The High Court also posed a question in relation to the interpretation of EU law where Ireland has not opted into related legislation.

Reasoning: The CJEU first addressed the question of whether Irish courts can take into account the provisions of legislation to which Ireland has not opted in ― in particular, the recast Asylum Procedures Directive 2013/32/EU. The CJEU held that, due to the requirement of a uniform application of EU law and the principle of equal treatment, along with the fact that the recast Reception Conditions Directive and the recast Asylum Procedures Directive form part of the same body of law, the Common European Asylum System, account should be taken of the recast Asylum Procedures Directive when interpreting the recast Reception Conditions Directive.

Secondly, the CJEU held that Article 15 of the recast Reception Conditions Directive must be interpreted as not excluding applicants for international protection from accessing the labour market on the sole ground that they have been issued with a Dublin transfer decision. The CJEU recalled the broad definition of ‘applicant’ under Article 2(b) of the recast Reception Conditions Directive and held that the legislator did not intend for persons subject to a Dublin transfer decision to be excluded from this definition, particularly as no final decision has been taken on the international protection application. This finding is in line with its previous ruling in Cimade and GISTI (C-179/11), which established that material reception conditions must be provided to persons in Dublin proceedings. The Court recognised that while access to the labour market is not stricto sensu a material reception condition, it is still a reception condition and, as such, is included in the rights and benefits of applicants. It held that permission to access the labour market shall only cease when that applicant is finally transferred to the requested Member State.

Furthermore, the CJEU recalled that the recast Reception Conditions Directive seeks to promote self-sufficiency and states that a simplification of labour market access procedures can help prevent isolation and social exclusion. Preventing access to the labour market can conversely place additional costs on the Member State in the form of the payment of additional social benefits.

Thirdly, the CJEU addressed the question on the interpretation of the phrase “a delay attributable to the applicant” under Article 15(1) of the recast Reception Conditions Directive. In the national cases, failure to apply for asylum in the first country of entry in the EU and appealing a Dublin transfer decision were suggested as delays that could be attributed to the applicant.

With reference to Articles 13 and 31(3) of the recast Asylum Procedures Directive, the CJEU held that a delay attributable to the applicant occurs where an applicant has failed to cooperate with the competent authorities. Recalling that there is no provision in the Dublin III Regulation that requires an individual to lodge an international protection application in the Member State of first entry, the CJEU held that it cannot be used as a ground for attributing delay to the applicant. Moreover, the fact that the applicant has appealed the transfer decision also does not constitute a delay attributable to the applicant. Indeed, Article 27(3) of the Dublin III Regulation requires Member States to establish an appeals mechanism in national law, and the right to an effective remedy is a fundamental right under Article 47 of the Charter of Fundamental Rights of the EU. The CJEU states that the legislator did not intend for judicial protection to be sacrificed for the purpose of the expedition of the processing of an application.

Principles:-          Where a national court is interpreting provisions of the recast Reception Conditions Directive, account must be taken of the recast Asylum Procedures Directive, even where the Member State has not opted into that legislation.
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