The Supreme Court has referred four questions to the Court of Justice of the European Union about when delay in processing an international protection application can be attributed to the applicant, and whether Ireland’s rules on labour market access properly implement EU law.
The reference, made by an order dated 23 October 2024, arises from an appeal concerning L.K., an international protection applicant who sought permission to work while awaiting a first-instance decision. The Supreme Court has not answered the questions referred or finally determined the appeal in this order.
L.K. applied for protection in Ireland on 2 September 2019. He was not personally notified of a preliminary interview scheduled for 16 September. After contacting his social worker, he attended an interview on 12 December and received a questionnaire in Georgian, initially due back by 6 January 2020. The IPO granted extensions, including one in response to disruption caused by the Covid-19 pandemic. L.K. submitted the questionnaire on 25 August 2020.
He applied for labour market access permission on 20 June 2020. The application was refused on the basis that delay in issuing a first-instance decision was attributable to him, including because he had not returned the questionnaire. A review and an appeal to the International Protection Appeals Tribunal were also unsuccessful. He later received a permission certificate in June 2022 and took up full-time work as a construction labourer in February 2023.
The High Court ruled in L.K.’s favour in June 2022, finding the tribunal’s attribution of delay unreasonable and irrational and that the Irish regulations had not correctly transposed the EU directive. The State parties appealed to the Supreme Court.
The Supreme Court said some delay before December 2019 could not be attributed to L.K., as he had not been notified of the earlier appointment. It also found significant delay by him in providing the questionnaire, with some delay unexplained. The Court observed that the application could not be processed without the requested information. It did not, however, resolve how the applicant’s delay should be weighed against delay by the State or external disruption.
The questions sent to the EU court ask what acts amount to attributable delay, whether delay must be wholly and exclusively the applicant’s, how mixed causes should be assessed, and whether the phrase “attributed in part” in the Irish regulations is consistent with the directive. The Supreme Court said it had not considered the separate issue of possible damages for breach of EU law.