The Court of Appeal adjourned Evelyn Danqua’s appeal and referred two questions to the Court of Justice of the European Union about the time limit for applying for subsidiary protection. It made no final decision on whether the limit breached EU law or whether the Minister should have accepted her late application.
The appeal concerned a 15-working-day period the Minister had administratively applied after an asylum refusal. It was not set by legislation and, the evidence before the court indicated, late applications had sometimes been accepted case by case.
Danqua, a Ghanaian national, applied for refugee status in April 2010. Her application was refused on credibility grounds in January 2011. The Refugee Legal Service advised that it saw no likely grounds for a subsidiary protection application and said it would not prepare one, but explained that she could apply herself, use a private solicitor or challenge that advice. The judgment records that she was functionally illiterate and spoke little English at the time.
In March 2011, the service applied for humanitarian leave to remain on her behalf. After that application was refused and a deportation order was signed in 2013, new solicitors applied for subsidiary protection and sought to revoke the order. The Minister refused to accept the application, reasoning that the 15-day period had expired and that Danqua had chosen not to apply earlier.
Danqua argued that the time limit treated subsidiary protection applications less favourably than asylum applications, which had no comparable deadline. She also argued that the refusal to consider her late application relied on an unsustainable assumption that she had consciously chosen not to apply in 2011. The Minister argued that the different treatment was justified because the deadline helped ensure international protection cases were completed within a reasonable time.
The Court of Appeal considered asylum and subsidiary protection sufficiently similar to be possible comparators, but said guidance was needed on whether an asylum application governed by domestic legislation reflecting EU obligations could serve as a comparator under the EU principle of equivalence. It also asked whether it mattered that the deadline was administrative and served the aim of timely decisions.
The court adjourned the appeal pending the EU court’s response and invited the parties to make further submissions on the proposed questions. The judgment did not resolve Danqua’s challenge to the deadline or the Minister’s refusal to extend time.