Factual and Procedural Background
The Applicant, a Georgian national, applied for international protection on 2 September 2019. An initial interview scheduled for 16 September 2019 did not proceed because the Applicant was not informed of it. An interview later occurred on 12 December 2019, when the Applicant received an international protection questionnaire (in Georgian) initially due on 6 January 2020. Multiple extensions followed, including extensions associated with obtaining legal representation (assigned on 28 January 2020), securing translation services, and difficulties arising during the Covid-19 pandemic. The questionnaire was ultimately submitted on 25 August 2020.
In June 2020 the Applicant applied to the Labour Market Access Unit for permission to access the labour market under the European Communities (Reception Conditions) Regulations 2018. The application was refused on 28 August 2020 on the basis that delay in the first-instance protection decision was attributable to the Applicant. That refusal was confirmed on review and, on appeal, was upheld by the International Protection Appeals Tribunal by decision dated 3 March 2021, which found the Applicant had not cooperated and that delay was attributable to him.
The Applicant brought judicial review proceedings challenging the Tribunal’s 3 March 2021 decision. The High Court (Judge [Last Name]) quashed the Tribunal decision and later awarded the Applicant Francovich damages for breach of EU law. The Respondents/Appellants obtained leave to appeal directly to the Supreme Court. The Supreme Court (in an earlier judgment) referred questions to the Court of Justice of the European Union under Article 267 TFEU. Following the Court of Justice judgment, the Supreme Court heard further submissions and delivered the present judgment allowing the Respondents/Appellants’ appeal.
Legal Issues Presented
- Whether the delay in reaching a first-instance decision on the Applicant’s international protection application (relevant to labour market access) was attributable to the Applicant, including how to treat “mixed causes” of delay.
- Whether the European Communities (Reception Conditions) Regulations 2018 correctly transposed Article 15(1) of Directive 2013/33/EU, given the inclusion of the words “attributed in part.”
- Whether, in light of EU law as interpreted by the Court of Justice, the Tribunal’s refusal of labour market access and the High Court’s award of Francovich damages could stand.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| LK v. International Protection Appeals Tribunal (No.1) [2022] IEHC 441 |
High Court decision quashing the Tribunal’s attribution of delay and finding procedural and rationality defects (as described in the opinion). |
Identified as the first High Court judgment overturned on appeal. |
| LK v. International Protection Appeals Tribunal (No.2) [2023] IEHC 210 |
High Court decision awarding Francovich damages (as described in the opinion). |
Identified as the second High Court judgment overturned on appeal. |
| [2023] IESCDET 130 |
Determination granting leave to appeal directly to the Supreme Court under the Constitution. |
Explained the procedural route by which the appeal came before the Supreme Court. |
| LK v. International Protection Appeals Tribunal [2024] IESC 42 |
Supreme Court judgment referring questions to the Court of Justice under Article 267(3) TFEU. |
Provided the context and basis for the Court of Justice reference relevant to the present decision. |
| Case C-742/24 Havvitt EU:C:2026:15 |
Interpretation of Article 15(1) of Directive 2013/33/EU: attribution of delay requires a causal link; mixed-cause delay must be apportioned; partial non-cooperation extends the nine-month period only by the attributable interval; and national wording “attributed in part” is not precluded. |
Treated as determinative: it removed the transposition challenge and required the Supreme Court to reassess attribution of delay by apportionment/causal-link analysis. |
| Minister for Justice & Equality & Others v. Workplace Relations Commission & Others (Case C-783/17, EU:C:2018:979) |
Cited (by the Tribunal) for the obligation to apply the wording of an EU Directive where national wording differed (as described in the opinion). |
Referenced in recounting the Tribunal’s approach; not treated as dispositive of the Supreme Court’s final analysis. |
| The State (Keegan) v. Stardust Victims' Compensation Tribunal [1986] IR 642 |
Irrationality standard: a decision “in the face of fundamental reason and common sense” (as described in the opinion). |
Discussed as part of the High Court’s reasoning that was ultimately displaced by the Supreme Court’s conclusion that the Tribunal’s decision was legally correct on the clarified EU-law test. |
| Francovich |
State liability in damages for breach of EU law (three conditions referenced in the opinion). |
The Supreme Court held no breach of EU law was established once the Tribunal decision was upheld, so the damages claim failed. |
Court's Reasoning and Analysis
The Supreme Court applied the Court of Justice’s interpretation of Article 15(1) of Directive 2013/33/EU. First, it held that the transposition challenge “disappeared” because the Court of Justice concluded Article 15(1) does not preclude national legislation denying labour market access where delay is attributable “in part” to the applicant. Accordingly, the inclusion of the words “attributed in part” in the 2018 Regulations did not, of itself, establish incorrect transposition.
Second, the Supreme Court held that attribution of delay is not a binary assessment. It requires examining whether there is a causal link between the applicant’s conduct and the delay, so that only the portion of delay caused by the applicant may be counted against them; where causes are mixed (including State error or external events such as a pandemic), responsibility must be assessed proportionately.
Third, applying that approach to the relevant period (2 September 2019 to 28 August 2020), the Court found that the Applicant could not be held responsible for delay between 2 September 2019 and 12 December 2019 (because he had not been notified of the scheduled interview), nor for the period between 12 December 2019 and 28 January 2020 (when he was assigned legal representatives). The Court also accepted that a short extension to end-February 2020 was reasonable, and considered that Covid-19-related difficulties justified excusing delay until the end of April 2020.
However, the Court held that no explanation was offered for delay after the end of April 2020. Even allowing generously for the Applicant up to that point, the Court concluded he still did not meet the requirement of a nine-month delay in which delay was not attributable to him (whether in whole or in part). Therefore, although elements of the Tribunal’s reasoning could not be supported after the Court of Justice’s clarification, the Tribunal’s ultimate decision to refuse labour market access was legally correct.
Finally, because the Tribunal decision was upheld as legally valid and the transposition claim failed in light of the Court of Justice judgment, the Supreme Court held that no breach of EU law or EU entitlement had been established. The necessary foundation for Francovich damages therefore did not exist, and the damages claim had to fail.
Holding and Implications
ALLOWED: The Supreme Court allowed the Respondents/Appellants’ appeal against both High Court decisions.
The direct effect was that the Tribunal’s 3 March 2021 decision refusing the Applicant labour market access (for the relevant period) stood as legally valid, and the Applicant’s claim for Francovich damages was rejected. The Court indicated that no new domestic precedent on transposition arose beyond applying the Court of Justice’s authoritative interpretation of Article 15(1) of Directive 2013/33/EU, including the requirement to assess causation and apportionment where delay has mixed causes.