S.A and R.J v Minister of Children, Equality, Disability, Integration and Youth, Ireland and the Attorney General


S.A and R.J v Minister of Children, Equality, Disability, Integration and Youth, Ireland and the Attorney General
Respondent/Defendant:Minister of Children, Equality, Disability, Integration and Youth, Ireland and the Attorney General
Court/s:High Court
Nature of Proceedings:Judicial Review
Judgment Date/s:14 Dec 2023
Judge:Ferriter C
Keywords:Asylum, Reception Conditions, Reception Conditions (Material)
Country of Origin:Afghanistan, India

Facts: SA and RJ sought international protection in Ireland in early 2023. On lodging their applications, they were not provided with accommodation and they each spent over two months homeless. They were provided with vouchers for Dunnes Stores, with charities providing food and access to the bathroom. In terms of other payments to the applicants, up until March 2023, the Daily Expenses Allowance (€38.80 for an adult) was only available to those resident in accommodation provided by the International Protection Accommodation Services (IPAS), this changed at the end of March 2023 to allow homeless applicants to access the payment. The applicants could also obtain an Additional Needs Payment. One of the applicants submitted that he was not informed of the availability of these payments.

The State accepted that it did not meet the applicants’ entitlement to accommodation under the European Communities (Reception Conditions) Regulations 2018 (S.I. 230/2018) and it accepted that declaration of a breach of the applicants’ rights were appropriate. The applicants claimed damages on this basis, however, this was opposed by the State on the basis that the failure to provide the applicants with accommodation arose from the force majeure circumstances of saturation of available international protection accommodation capacity. This stemmed from unforeseeable and unprecedented events that led to an influx of Ukrainian refugees and an unexpectedly large increase in the numbers of other international protection applicants. The State submitted that it had used ‘the greater part’ of available resources to find solutions and that Ireland was not unique in the EU in experiencing difficulties in providing accommodation.

The two cases were test cases for a group of 50 similar cases.

Reasoning: In assessing the claim for damages and the force majeure claim, the Court first examined the Francovich test, which sets out the requirements for damages to be awarded against a State for breach of EU law. It recalled that, if damages are to be awarded, the provision of EU law must have been intended to confer rights on individuals, the breach was sufficiently serious, and there was a direct causal link between the State’s obligations and the damage sustained. The applicants claimed this had been met, whereas the State claimed a defence of it being an unprecedented situation of force majeure.

The Court reviewed EU case law on situations of force majeure and detailed how it is understood differently depending on the legal context in which it operates and there are differing formulations of the parameters. The case law is nonetheless consistent in the requirement that force majeure can only arise in relation to an abnormal and unforeseeable circumstance outside the control of the party relying on the defence. There were nonetheless some differences in the expression of the precise limits of the defence. Generally, the CJEU has taken a strict approach to the availability of the defence.

Decision: The High Court recognised that the Reception Conditions Directive does not expressly provide for a defence of force majeure where the state has failed to provide material reception conditions, the provisions of these conditions are mandatory. Even where a force majeure defence could be available in principle, the question remained as to whether it was available where inviolable rights under the Charter of Fundamental Rights of the EU are concerned, in this case, Article 1 on human dignity. Furthermore, it recognised that the parameters for such a defence are unclear. In this context, the High Court held that the situation was not acte claire in EU law and stayed proceedings.

Principles:The applicability, parameters and scope of the defence of force majeure to a claim for Frankovich damages in the context of the Reception Conditions Directive and the provision of accommodation to applicants is unclear under EU law and therefore questions were referred to the CJEU.
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