L.K. v International Protection Appeals Tribunal & Ors (Approved)

Factual and Procedural Background

This judicial review concerns an Applicant who sought a labour market access permit while applying for international protection in the State. The First Named Respondent refused the permit on 3 March 2021, finding that the Applicant was responsible for delays in his international protection application process, thus disqualifying him from labour market access under Regulation 21(5)(a) of the European Communities (Reception Conditions) Regulations, 2018. The Applicant was granted leave to apply for judicial review of this refusal on 26 April 2021.

The Applicant initially applied for international protection on 2 September 2019, citing a risk of serious harm if returned to his country of origin. A first interview was scheduled for 15 September 2019, but the Applicant was not notified of this appointment. Following his inquiry via a social worker, a section 15 interview was arranged for 12 December 2019, which the Applicant attended.

The Applicant required a Georgian translator and legal advice to complete the International Protection Questionnaire, leading to multiple extensions granted by the International Protection Office (IPO). The COVID-19 pandemic caused further delays, including cancellations of translator appointments and lockdown restrictions. The questionnaire was eventually submitted on 25 August 2020.

The Applicant applied for labour market access permission on 20 June 2020. This application was refused on 28 August 2020 by the Labour Market Access Unit (LMAU) on the grounds that delay in the first instance decision was attributable to the Applicant. A review officer upheld this refusal on 2 December 2020, and the Applicant appealed to the International Protection Appeals Tribunal (IPAT), which affirmed the refusal on 3 March 2021.

The Applicant challenges the refusal on grounds including alleged misinterpretation of "delay," failure to consider reasonable excuses, failure to properly transpose Directive 2013/33/EU, and breach of fair procedures.

Legal Issues Presented

1. Whether the First Named Respondent erred in law by attributing the delay in the international protection application process to the Applicant under Regulation 11(4)(b) of the 2018 Regulations and Article 15(1) of Directive 2013/33/EU.
2. Whether the First Named Respondent breached principles of fair procedures and natural and constitutional justice in making adverse credibility findings without proper evidential basis or opportunity for the Applicant to respond.
3. Whether the Respondents failed to properly transpose Article 15(1) of Directive 2013/33/EU into domestic law via the 2018 Regulations.
4. Whether the refusal to grant labour market access permission was lawful and consistent with EU law and national legislation.

Arguments of the Parties

Applicant's Arguments

• The Applicant did not cause the delay attributed to him, particularly between 2 September 2019 and 11 December 2019, as he was not notified of the initial appointment and proactively engaged thereafter.
• The Applicant required and was entitled to legal advice and a Georgian translator, which justified extensions and delays in submitting the questionnaire.
• The COVID-19 pandemic and related restrictions caused delays beyond the Applicant's control.
• The First Named Respondent's findings of non-cooperation and adverse credibility were irrational, unreasonable, and unsupported by evidence.
• The 2018 Regulations failed to properly transpose Directive 2013/33/EU, particularly by introducing the phrase "or attributed in part" which is absent from the Directive and allows refusal on grounds broader than permitted.
• The Applicant was denied fair procedures, including the opportunity to address adverse findings, and the Respondents failed to engage with evidence and submissions explaining delays.

Respondents' Arguments

• The First Named Respondent conducted a fair and reasoned assessment and was entitled to make credibility findings.
• The delay attributable to the Applicant was "excessive" and justified refusal of labour market access permission.
• The COVID-19 pandemic caused some delay, but did not account for the entirety of the delay, particularly prior to March 2020.
• Legal advice is an essential right but does not excuse unreasonable delay in exercising rights within a reasonable time.
• The Labour Market Access Unit (LMAU) is a distinct body from the IPO and entitled to make independent assessments regarding delay and cooperation.
• The phrase "or attributed in part" in the 2018 Regulations allows refusal if any part of the delay is attributable to the Applicant, consistent with national law.
• The decision was consistent with relevant EU case law, including the Court of Justice of the European Union's judgment in linked cases C-322/19 and C-385/19.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed review of the factual evidence and legal submissions. It found that the Applicant was never notified of the initial appointment scheduled for 16 September 2019, a fact uncontested and supported by evidence of the notification process involving hotel reservations but lacking confirmation of actual notification to the Applicant. The Applicant’s proactive engagement through his social worker to arrange a subsequent interview in December 2019 was accepted as evidence of cooperation.

The Court recognized the Applicant’s entitlement to legal advice and the necessity of a Georgian translator, acknowledging that multiple extensions granted by the IPO, including during the COVID-19 pandemic, were reasonable and reflected genuine difficulties. The pandemic's impact on delays was accepted as a justifiable cause beyond the Applicant's control.

The Court found that the First Named Respondent’s decision failed to properly engage with these facts and evidence. Notably, the decision attributed all delay to the Applicant, disregarding extensions granted and the pandemic's effect. The Court held that adverse credibility findings concerning the availability of translators and the Applicant’s cooperation were irrational and unsupported by evidence. The decision-maker’s failure to contact the IPO to verify submissions further undermined the decision’s evidential basis.

Legally, the Court emphasized that the wording of the 2018 Regulations ("cannot be attributed, or attributed in part") materially differs from the Directive’s wording ("cannot be attributed"), resulting in a failure to properly transpose EU law. The decision effectively applied the broader and inconsistent standard of the Regulations rather than the Directive, leading to an unlawful refusal of labour market access.

The Court also found breaches of fair procedures and natural justice, particularly the absence of notice to the Applicant regarding findings of non-cooperation and the lack of opportunity to respond to adverse credibility assessments.

In summary, the Court concluded that the decision was irrational, unreasonable, breached fair procedures, and was inconsistent with the proper legal framework established by Directive 2013/33/EU and EU case law.

Holding and Implications

The Court granted the Applicant’s judicial review application, finding that the impugned decision was unlawful.

The decision of the First Named Respondent dated 3 March 2021, refusing the Applicant labour market access permission on grounds of delay attributable to the Applicant, is quashed.

The Court held that the Respondents failed to properly transpose Article 15(1) of Directive 2013/33/EU into Irish law and that the decision-maker’s adverse findings were irrational and made in breach of fair procedures. The Applicant was entitled to labour market access permission under the correct interpretation of the law.

The direct effect of this ruling is to invalidate the refusal and require reconsideration of the Applicant’s labour market access application consistent with the Directive’s requirements. No new precedent beyond the application of established principles of EU law supremacy, proper transposition, and fair procedures was established.