L.K. -v- International Protection Appeals Tribunal & Ors


L.K. -v- International Protection Appeals Tribunal & Ors
Respondent/Defendant:International Protection Appeals Tribunal, The Minister for Justice, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2022] IEHC 441
Nature of Proceedings:Judicial Review
Judgment Date/s:26 Apr 2023
Judge:Heslin M., Ferriter C.
Category:Refugee Law
Keywords:Asylum, Asylum (Application for), Asylum Applicant, Labour market access, Protection (Application for International), Protection (International), Reception Conditions
Country of Origin:Georgia
URL:https://www.courts.ie/acc/alfresco/153ff350-64ad-40e3-885f-c3783365ca98/2022_IEHC_441.pdf/pdf#view=fitH https://courts.ie/view/judgments/a8214e9c-ffea-41bc-9246-587b20791b2d/5b4865e6-b107-4c5d-aa1b-f1ffcacf72b4/2023_IEHC_210.pdf/pdf

Facts: The case concerned a Georgian national who applied for international protection at the IPO in September 2019. He completed the section 13 process, but not the section 15 process required to complete the lodging of his application. This was because he required a Georgian interpreter, and he was informed that he would be contacted when this could be arranged. He submitted that he did not subsequently hear from the IPO. Following contact via his social worker, he secured an appointment to complete the section 15 process in December 2019. The applicant was given an international protection questionnaire to complete. He sought legal advice and subsequent extensions to the deadline to return the questionnaire, including for reasons relating to COVID-19 and securing a translator. These were granted by the IPO and when the questionnaire was received by the IPO, there was no suggestion that it would not be considered or that the applicant had not cooperated in the process.  

The applicant applied for a labour market access permission in June 2020. This was refused on the ground that the applicant was found to have contributed to the delay in the processing of his international protection application. This decision was appealed to the IPAT, which upheld the decision of the Labour Market Access Unit (LMAU). The applicant instituted judicial review proceedings challenging the decision of the IPAT. 

Reasoning: In the High Court ruling on 9 June 2022, Heslin J. held that the refusal from the LMAU was unfounded. He held that there was no evidence of a delay attributable to the applicant in the events that took place between his making of an application for international protection and the submission of a questionnaire. Heslin J. held that the refusal decision, and the upholding of this decision in the IPAT, was irrational and unreasonable, particularly in the context of the COVID-19 pandemic, the related public health measures and the flexibility given by the IPO during this period. He held that as such the decision of the LMAU was not based on evidence and that the principle of fair procedures was not followed. The applicant was also not notified of the finding that he had not cooperated with the IPO (a finding which the IPO had not reached).   

Heslin J. also identified a difference between the labour market access provisions under Article 15 of the recast Reception Conditions Directive 2013/33/EU and its transposition in regulation 11 of the European Communities (Reception Conditions) Regulations 2018 (SI 230/2018).  Regulation 11(4)(b) states that a labour market access permission will be granted subject to certain conditions being met, including that the delay in processing a protection application “cannot be attributed, or attributed in part, to the applicant”, whereas Article 15 of the Directive provides that the delay “cannot be attributed to the applicant.” As such, the transposition of the Directive diluted the provisions of the Directive on labour market access.  

In the second high court ruling on this case on 17 May 2023, Ferriter J. held that the applicant was entitled to Francovich damages. He held that it met the conditions required, recognising that Article 15(1) of the Directive can be understood to confer a right on individuals and that Article 15(2) requires Member States to ensure access to the labour market is effective. The clear and material difference between the Directive and the transposition in the 2018 Regulations weakened the labour market access provision and was serious enough for damages to be awarded.  

Decision: The Court held that the applicant was entitled to damages under the Francovich test as a result of the Minister for Justice’s failure to properly transpose Article 15 of the recast Reception Conditions Directive.  

Principles:The introduction of delay attributable ‘in part’ to an applicant in regulation 11(4)(b) of the European Communities (Reception Conditions) Regulations 2018 as a reason for refusing labour market access is not foreseen in the recast Reception Conditions Directive. It dilutes the provision for labour market access and incorrectly transposes EU law.
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