The High Court has refused an applicant’s request to refer a question about labour market access for international protection applicants to the Court of Justice of the European Union (CJEU). It also refused the relief sought in his judicial review, finding that the International Protection Appeals Tribunal’s decision was correct in law.
The applicant, an Albanian national, applied for international protection in Ireland on 1 April 2019. The International Protection Office (IPO) recommended refusing his application on 27 November 2019, less than eight months later. His appeal against that recommendation was still pending when the High Court heard the judicial review.
He had separately sought permission to access the labour market. The Labour Market Access Unit refused his application, and its review officer upheld that refusal. On 3 March 2020, the International Protection Appeals Tribunal (IPAT) affirmed the refusal, reasoning that a first-instance decision had been made within nine months of his protection application.
The applicant sought to quash IPAT’s decision and argued that EU rules should allow access to work while an appeal with suspensive effect was pending. He also challenged the Irish regulations implementing those rules and sought damages. In October 2021, after the regulations had been amended to reduce the relevant period from nine months to six, he applied again and received labour market access permission.
Justice Cian Ferriter said the case was substantially moot because the applicant had obtained the access that the judicial review was brought to secure. Although a damages claim could theoretically remain, it had been pleaded only in general terms, without particulars or supporting affidavit evidence. The court also found no sufficient public interest to justify a CJEU reference.
Addressing the proposed reference in case he was wrong about mootness, the judge held that it was not necessary. He said Article 15 of the Reception Conditions Directive requires access no later than nine months where no first-instance decision has been made and the delay is not attributable to the applicant. It does not require access to be granted because an appeal is lodged after a first-instance decision made within that period. The provision that access must not be withdrawn during certain appeals applies where access has already been granted, he said.
The court rejected the claims that the Irish regulations failed to transpose the directive or were unconstitutional. It said “may” in the regulations must be read as “shall” in line with the directive. Justice Ferriter concluded that IPAT’s decision was correct in law and refused the relief sought.