The Supreme Court has referred four questions to the Court of Justice of the European Union (CJEU) about when delays in processing an international protection application can be attributed to the applicant, and whether Ireland’s rules on labour market access correctly implement EU law.
The questions arose from L.K.’s challenge to the refusal of permission to work while his protection application was being processed. The Supreme Court’s judgment, delivered by Ms Justice Elizabeth Dunne on 9 October 2024, did not finally resolve the transposition issue or the claim for damages. The Court said it would be premature to consider Francovich damages pending the CJEU’s decision.
L.K. applied for international protection on 2 September 2019. He was not notified of a preliminary interview scheduled for 16 September and later contacted his social worker, who arranged an interview for 12 December. He received a questionnaire in Georgian, with a return deadline of 6 January 2020. The International Protection Office (IPO) granted extensions, ultimately until 24 August 2020. L.K. submitted the questionnaire on 25 August.
The Labour Market Access Unit refused his application for a work permission in August 2020, saying the delay in issuing a first-instance decision was attributable to him. That refusal was upheld on review and by the International Protection Appeals Tribunal. The High Court later quashed the tribunal’s decision and found that the 2018 Irish regulations had failed to properly transpose the EU directive. In a subsequent judgment, it awarded L.K. €21,877.44 in damages.
On appeal, the Supreme Court disagreed with the High Court’s assessment of the delay. It found that the period from September to December 2019 could not be attributed to L.K., who had not been notified of the first appointment. It also accepted that time was needed to obtain legal advice and translation. But the Court said there was no satisfactory explanation for lengthy periods of delay in completing the questionnaire, including the time between the solicitor’s referral and the first translator appointment, and the gap before a further extension was sought in July 2020.
The Court concluded there had been significant, culpable delay by L.K. in providing information needed to process his application. It said the application could have been processed within nine months but for those later delays. However, because some delay was attributable to the State and the EU directive gives no detailed guidance on how mixed periods of delay should be assessed, the Court said the questions did not admit of a clear answer.
The four questions referred ask whether the length of time L.K. provided no questionnaire information matters; whether delay must be wholly attributable to an applicant or may include a significant part attributable to them; how to assess delay where both the State and applicant contributed; and whether the words “attributed in part” in the Irish regulations amount to incorrect transposition. The Supreme Court made the reference and deferred consideration of damages pending the CJEU’s response.