LK v The International Protection Appeals Tribunal & ors (Approved)

Factual and Procedural Background

The Respondent, a Georgian national, applied for international protection in The State on 2 September 2019. He missed an initial interview date of 16 September 2019 because he never received notice. A formal questionnaire (“IPO 2”) was issued on 12 December 2019 but was not returned until 25 August 2020 after four extensions, some of which coincided with Covid-19 restrictions and translation difficulties.

On 20 June 2020 the Respondent sought permission to access the labour market under Regulation 11 of the European Communities (Reception Conditions) Regulations 2018 (“the 2018 Regulations”). The Labour Market Access Unit refused the application on 28 August 2020, asserting that delay in the asylum procedure was attributable to the Respondent. Review and appeal to the International Protection Appeals Tribunal (“the Tribunal”) were unsuccessful.

The Respondent initiated High Court judicial review proceedings seeking to quash the Tribunal’s decision, a declaration that Article 15(1) of Directive 2013/33/EU (“the 2013 Directive”) had been incorrectly transposed, and Francovich damages. Judge Heslin allowed the application in two judgments ([2022] IEHC 441 and [2023] IEHC 210), holding that the Tribunal’s decision was irrational and that Regulation 11(4)(b) was an improper transposition because of the additional words “or attributed in part”. Damages of €21,877.44 were awarded.

The Minister, Ireland and associated State parties (“the Appellants”) obtained leave to appeal to the Supreme Court ([2023] IESCDET 130). The present judgment by Judge Dunne addresses that appeal.

Legal Issues Presented

1. How should the term “delay” in Article 15(1) of the 2013 Directive be interpreted—must the delay be wholly attributable to the applicant, or is partial/non-co-operative delay sufficient?
2. Whether inserting “attributed in part” in Regulation 11(4)(b) constitutes an incorrect and sufficiently serious transposition failure giving rise to Francovich liability.
3. Whether the High Court erred in finding the Tribunal applied the domestic Regulation rather than the Directive.
4. Whether a reference to the Court of Justice of the European Union (“CJEU”) is required under Article 267 TFEU.

Arguments of the Parties

Appellants’ Arguments

• The Tribunal expressly applied Article 15(1) as interpreted in KS; therefore, transposition was not in issue and the High Court should have dismissed the claim.
• The phrase “attributed in part” is within the Member State’s discretionary margin and reflects the applicant’s duty to cooperate; it does not render labour-market access ineffective.
• Even if transposition were defective, the three cumulative Francovich / Glegola conditions are not met: Article 15(1) does not confer individual rights in the relevant sense; any breach was not “sufficiently serious”; and no direct causal link exists because loss flowed from the Tribunal’s decision, not the Regulation.
• The High Court failed to apply EU interpretative principles and should first have attempted a conforming interpretation of the Regulation or examined direct effect.
• Damages for EU breaches are exceptional (Tomášová); the threshold is not met.

Respondent’s Arguments

• The High Court correctly found the Tribunal’s decision irrational, ignoring uncontested periods of State-caused and Covid-related delay.
• Adding “attributed in part” materially dilutes Article 15(1) and exceeds the State’s discretion, denying effective labour-market access contrary to dignity-based objectives recognised in NHV and the Charter.
• Article 15(1) confers an individual right; the State’s transposition error was sufficiently serious and directly caused financial loss, satisfying the Francovich criteria.
• The State cannot simultaneously defend the Tribunal’s reliance on the Directive and criticise the High Court for not interpreting the Regulation in conformity.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Dunne undertook a granular review of the timeline and concluded that, while early delay (September–December 2019) was State-caused, there were “significant, unexplained” periods—especially January–August 2020—where the Respondent failed to cooperate by completing the questionnaire. That non-co-operation, even if not the sole delay, was material.

The Court emphasised that Article 15(1) makes labour-market access conditional upon the delay not being attributable to the applicant. Relying on KS, the Court held that applicant-caused delay includes lack of cooperation. Consequently, if partial delay is substantial, the State may refuse access—even where some State delay also exists.

Turning to transposition, the Court rejected the High Court’s view that adding “attributed in part” necessarily violates EU law. Judge Dunne reasoned that Member States enjoy discretion provided such conditions do not make the right “impossible in practice or excessively difficult.” On the facts, the additional words did not defeat effective access; they merely reflected the implicit requirement in the Directive.

Nonetheless, the Court acknowledged uncertainty: the Directive offers no guidance on quantifying or apportioning delay, and no CJEU authority clarifies whether “partial” applicant delay suffices. Because the matter is not acte clair, the Court deemed it necessary to refer questions to the CJEU under Article 267 TFEU concerning: (1) the concept of “delay” and partial attribution, and (2) whether Regulation 11(4)(b) correctly transposes the Directive.

Given that the validity of the transposition is central to any damages claim, the Court held it premature to decide on Francovich liability pending the CJEU’s answers.

Holding and Implications

ORDER: Questions referred to the Court of Justice of the European Union; determination of the appeal and of any Francovich damages stayed pending the preliminary ruling.

Immediate effect: The High Court orders and damages award are not finally resolved. Broader implications: The Supreme Court’s reference will clarify EU-wide standards on applicant-attributable delay and may determine whether Member States may lawfully deny labour-market access where applicants are responsible for part of the delay. No new domestic precedent is set until the CJEU responds.