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

As I indicated at the conclusion of the resumed hearing, I am very grateful to Mr. Power SC (for the Applicant) and to Mr. Travers SC (for the Respondents) for the assistance they provided in terms of detailed submissions of great sophistication, both oral and written. I have carefully considered all submissions and, during the course of this decision, I will refer to the principal submissions and to certain authorities to which counsel very helpfully drew to the Court�s attention and which, in my view, were of most assistance in determining the questions which arise in this �module�.

It is fair to say that, in order for a claim in damages to succeed, three conditions must be met. In the Supreme Court�s decision in Glegola v. Minister for Social Protection [2019] 1 IR 539 , O�Donnell J. (as he then was) commented on these three conditions in a Francovich damages claim, as follows:-

Whilst the Respondents submit that none of the three aforesaid conditions have been met by the Applicant, they argue, by way of a preliminary issue that:-

��. the IPAT decision under review herein was entirely based on the wording contained in the Directive. Accordingly, whether the Directive had been correctly transposed into Irish law did not effectively arise herein. In essence the Court has been asked by the Applicant to make an order of certiorari quashing a decision which was based on an application of Article 15(1) of the Directive and not on how the Directive itself has been transposed into domestic legislation �. [see para. 3 of the respondent�s written submissions].

Building on the foregoing, the Respondents submit that the Applicant �s claim for damages falls to be dismissed in limine , because, contend the Respondents, IPAT applied Article 15(1) of the Directive in the decision, not the implementing provision in the 2018 Regulations [see para. 6 of the Respondents � written submissions].