The High Court has referred five questions to the Court of Justice of the European Union (CJEU) in a dispute over whether two people subject to Dublin transfer decisions could access the labour market while their international protection applications remained unresolved.
In a judgment delivered on 25 March 2019, Mr Justice Richard Humphreys referred questions about the interpretation of EU reception conditions law, including whether its right-to-work provision applies to people facing transfer under the Dublin III regulation. He also asked whether delays linked to a transfer decision, or to judicial review proceedings that suspend a transfer, could be attributed to an applicant.
The proceedings were brought by K.S. (Pakistan) and M.H.K. (Bangladesh), whose labour-market access appeals were rejected by the International Protection Appeals Tribunal (IPAT) in September and October 2018 respectively. Both had earlier received Dublin transfer decisions directing their cases to the UK. Their challenges to those transfer decisions remained pending, and court stays prevented the transfers while those proceedings continued.
The applicants sought orders quashing the refusals of labour-market access, declarations that parts of the 2018 Reception Conditions Regulations conflicted with the EU directive, and damages. The parties had agreed that any question of damages could be postponed if it arose.
The judge set out proposed answers to the EU questions, including that delays following an applicant’s voluntary travel between member states or judicial review proceedings could be attributed to that applicant. Those were the referring judge’s proposed answers, not rulings by the CJEU. The court said it was not clear that the answers followed from EU law and referred the issues for the CJEU to decide.
The order requested use of the CJEU’s expedited procedure, citing potential difficulties for the IPAT in deciding other applications and uncertainty affecting similar cases. The judge said the IPAT could take the proposed answers into account in the meantime, while making clear they were only proposals. He also said he would hear submissions about amending the proceedings to reflect M.H.K.’s full first name; the judgment did not record a decision on that amendment.
The High Court did not quash either refusal, decide the applicants’ entitlement to work, or determine the damages claims. Those issues remained unresolved pending the EU court’s response and further proceedings.