LK -V- The International Protection Appeals Tribunal & Ors

AN CHÚIRT UACHTARACH THE SUPREME COURT S:AP:IE:2023:000096 [2026] IESC 26 O’Donnell C.J. Woulfe J. Hogan J. Murray J. Donnelly J. Between/ LK APPLICANT/RESPONDENT AND INTERNATIONAL PROTECTION APPEALS TRIBUNAL, MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL (No.2) RESPONDENTS/APPELLANTS JUDGMENT of Mr. Justice Gerard Hogan delivered the 16th day of April 2026 Part I - Introduction 1. The applicant, Mr. K., is a Georgian national who has sought international protection in this State. At the hearing of this appeal the Court was informed that he has been given permission to remain in the State by the Minister for Justice pursuant to s. 49 of the 2 International Protection Act 2015. He was also given permission to work in the State in June 2022. This appeal does not, however, directly concern either of these two issues. It rather relates to an earlier decision of the International Protection Appeals Tribunal (“IPAT”) given in March 2021 refusing him permission to work in the State pending the determination of that international protection application. Specifically, the question is whether the applicant was responsible for the delay in processing his original application for international protection. 2. The issue accordingly arises in the following way. In these judicial review proceedings, Mr. K. challenges the decision of the IPAT dated 3rd March 2021 which rejected his appeal against an earlier decision to refuse him access to the labour market in this State, i.e., in effect permission to work. The provisions of Article 11(4)(b) of the European Communities (Reception Conditions) Regulations 2018 (SI No. 230 of 2018)(“the 2018 Regulations”) seek to transpose the corresponding provisions of Article 15(1) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (“the 2013 Directive”). Article 15(1) of the 2013 Directive provides that each Member State is obliged to ensure that applicants for international protection “have access to the labour market no later than 9 months from the date when the application for international protection was lodged if a first instance decision by the competent authority has not been taken and the delay cannot be attributed to the applicant.” 3. The fundamental questions in this appeal are, first, whether the delay in the issuing of the first instance decision in respect of his international protection application during the period between September 2019 and August 2020 is, in fact, attributable to the applicant and, second, whether the 2018 Regulations had in fact correctly transposed the provisions of Article 15 of the 2013 Directive. In its decision dated 3rd of March 2021, the IPAT 3 concluded in accordance with Article 21(5) of the 2018 Regulations that permission should be refused on the ground that the delay in issuing the first instance decision in respect of the international protection application was attributable to that of the applicant. The Designated Member concluded that Mr. K. had not co-operated in the processing of his application for international protection. 4. The applicant, however, challenged the validity of that decision in the present proceedings. He prevailed on this issue before Heslin J. in the High Court: see LK v. International Protection Appeals Tribunal (No.1) [2022] IEHC 441. In the second judgment, Heslin J. further held that the applicant was entitled to obtain Francovich damages because of this breach of EU law: see LK v. International Protection Appeals Tribunal (No.2) [2023] IEHC 210. 5. The respondent State authorities were granted leave to appeal directly to this Court pursuant to Article 34.5.4⁰of the Constitution by a determination dated 31st October 2023: see [2023] IESCDET 130. In a judgment delivered by Dunne J. on 9th October 2024, this Court subsequently referred certain questions to the Court of Justice pursuant to Article 267(3) TFEU concerning the interpretation of Article 15(1) of the 2013 Directive together with the issue of whether the 2018 Regulations had properly transposed those very provisions: see LK v. International Protection Appeals Tribunal [2024] IESC 42. 6. The Court of Justice gave judgment on 15th January 2026: see Case C-742/24 Havvitt EU:C:2026:15. (This was the fictitious name attributed by that Court to Mr. K.).While it is accepted that in that judgment the Court of Justice rejected the argument that the 2018 Regulations had not properly transposed the requirements of Article 15(1) of the 2013 Directive, that Court also explained that the issue of delay could not be determined on a purely binary, all or nothing basis. The Court accordingly concluded (at paragraph 43) that 4 Article 15(1) governed not only the delay or part of the delay that was attributable to that applicant, but it also ruled that: “…where there is a time interval the lapse of which can be explained by mixed causes, that is to say, the origin of which is attributable both to the conduct of that applicant and to the host Member State and/or to external factors such as, in particular, a pandemic, the fraction of that time interval which appears, in the light of all the circumstances of the case, to correspond to the share of responsibility attributable to that applicant.” 7. As the parties were not agreed as to the implications of this judgment, the Court decided to allow them to make further submissions and it set the matter down for further argument. Before proceeding further, however, it is first necessary to recapitulate the basic facts which have given rise to this dispute in the first place. 8. Although many of the detailed facts have already been set out in the judgment of Dunne J. in LK (No.1), in summary the key facts are as follows. On 2nd September 2019 the applicant applied for international protection. An interview with Mr. K. was scheduled by the International Protection Office (“IPO”) to take place on 16th September 2019, but, unfortunately, he was not informed of this date. Mr. K. then contacted an assigned social worker who arranged an interview with the IPO for 12th December 2019. At that interview he received an international protection questionnaire (drafted in Georgian, since Mr. K. did not speak English). This was to be completed by Mr. K. and returned to the IPO by 6th January 2020. 9. There then followed a series of extensions of time in respect of that date. The first extension was to 6th February 2020 at a time when Mr. K. did not yet have a solicitor. He was assigned a solicitor on 28th January 2020. 5 10. The second extension of time was then granted until 20th February 2020. It was then necessary to retain the services of a Georgian translator. There was another extension from 26th February 2020 until 4th March 2020. Time was then extended to 1st May 2020 due to the outbreak of the Covid-19 pandemic and the difficulty in securing in-person translation services. The final extension of time was sought on 17th July 2020 and it was granted until 24th August 2020. Mr. K. attended an interview with this solicitor in the presence of a Georgian translator on 5th August 2020 and the questionnaire was finally submitted to the IPO on 25th August 2020. 11. In the meantime, Mr. K. had applied in June 2020 to the Labour Market Access Unit (“LMAU”) for permission to access the labour market in accordance with Article 11(3) of the 2018 Regulations. (The LMAU is a specialized unit within the Department of Justice and Equality). This application was originally rejected by the LMAU on 28th August 2020 on the basis that the delay in issuing the first instance international protection decision was attributable to Mr. K. 12. This decision was further confirmed by the Review Officer within the Minister’s office. Mr. K. duly appealed against that rejection to the IPAT, but this appeal was rejected by decision of 3rd March 2021. It is, of course, the validity of this latter decision which is under challenge in these proceedings. Part II – The relevant legal provisions 13. It is next necessary to set out the relevant legislative provisions. Article 15(1) of the 2013 Directive provides: “Member States shall ensure that applicants have access to the labour market no later than 9 months from the date when the application for international 6 protection was lodged if a first instance decision by the competent authority has not been taken and the delay cannot be attributed to the applicant.” 14. Article 11(4) of the 2018 Regulations provides that: “The Minister may, on receipt of an application made in accordance with paragraph (3), grant a permission to the applicant where satisfied that – (a)….a period of 9 months, beginning on the application date, has expired, and by that date, a first instance decision has not been made in respect of the applicant’s protection application, and (b) the situation referred to in subparagraph (a) cannot be attributed, or attributed in part, to the applicant.” (emphasis supplied) 15. It may be noted at this juncture that the italicized words (“or attributed in part”) do not appear in Article 15(1) of the 2013 Directive. It was the addition of the words that gave rise to the argument that Article 11(4) of the 2015 Regulations had not properly transposed Article 15(1) of the 2013 Directive. I will return to this point presently. Part III – The decision of the International Protection Appeals Tribunal 16. As I have noted, the original decision to refuse permission was affirmed by the review decision of 2nd December 2020. The IPAT in its decision of 3rd March 2021 arrived at precisely the same conclusion. In a carefully reasoned decision, the Designated Member first drew attention to the difference between the wording of the two relevant provisions. She concluded (at paragraph 15) that: “As there is a difference between these two legal instruments, the Tribunal is obliged to apply the wording of the Directive in line with the judgment of the Court of Justice of the European Union in its judgment in Minister for Justice & Equality & Others v. Workplace Relations Commission & Others (Case C-783/17, EU:C:2018:979).” 7 17. The Designated Member then surveyed the various items of delay, concluding in effect that they were all attributable to Mr. K. Thus, for example, she concluded (at paragraph 24) that he had failed to engage with the process between 2nd September 2019 and 11th December 2019. She also faulted him for failing to explain the delay “between the assignment of [his] legal representatives by the Legal Aid Board on 28 January 2020 and what appears to be a first appointment on 11 March 2020.” She observed (at paragraph 27) that legal services were regarded as “essential services” during the course of the Covid-19 pandemic and that even though “the country emerged from the first lockdown in mid-June 2020…. it still took a further two months to submit the questionnaire.” 18. The Designated Member then concluded (at paragraph 29) that Mr. K “has delayed significantly and has not co-operated in the international protection process. The only time he has acted with any alacrity is in his applications to enter the labour market.” She accordingly found (at paragraph 32) that the delay “in taking a first instance decision… can be attributed to the [applicant].” She concluded by affirming the decision of the Review Officer to the effect that in accordance with Article 21(5)(a) of the 2018 Regulations the applicant was not then entitled to access the labour market. Part IV- The judgments of the High Court 19. In the High Court, Heslin J. delivered two judgments. In the first judgment of 9th June 2022, Heslin J. first concluded that the IPAT decision which attributed delay wholly to the respondent was not evidence-based and was one which flew “in the face of fundamental reason and common sense”, in the sense understood by this Court’s decision in The State (Keegan) v. Stardust Victims’ Compensation Tribunal [1986] IR 642. He further held that the decision infringed the principles of fair procedures in that the decision-maker did not 8 engage in a meaningful way with the reasons for the extensions granted by the IPO and where Mr. K. was never put on notice of a potential finding of non-cooperation on his part. 20. The second argument was that there had been a failure properly to transpose Article 15(1) of the 2013 Directive. The trial judge found there was a “material difference” between the wording of Article 15(1) on the one hand and that employed in Article 11(4)(b) of the 2018 Regulations on the other. This meant, he said, that the application of the 2018 Regulations gave rise to a situation whereby a labour market access permission could be refused if any delay could be “attributed in part” to an international protection applicant, even if delay was attributable to an oversight on the part of the State or by virtue of the Covid-19 pandemic, as arose in this case. Heslin J. also held that while the Designated Member of the IPAT purported to rely on the wording of Article 15(1) in her decision, the approach set out in Article 11(4)(b) had nonetheless been applied in substance by her. In passing, I feel bound to say that I respectfully disagree with these comments of the trial judge. It seems to me that the Designated Member faithfully endeavoured to interpret and apply Article 15 of the 2013 Directive. 21. Heslin J. then observed (at paragraph 175 of the first judgment) that the attribution of all delay to the applicant from 2nd September 2019 to 25th August 2020 was inconsistent with material findings in the body of IPAT's decision “which plainly recognise that at least parts of this very delay were not attributed to the applicant, but to the Covid-19 pandemic”. He concluded that had the State appellants successfully transposed the 2013 Directive by means of the 2018 Regulations, the Designated Member would not have fallen into error. 22. The second judgment of 26th April 2023 concerned the claim for Francovich damages. Heslin J. examined the three conditions (i.e., an intention to confer legal rights on the individual concerned; a sufficiently serious breach of EU law; and a causal link between 9 the infringement and the damage) that must be satisfied to enable an individual to obtain damages against an EU Member State for a breach of or a failure to implement, EU law. He concluded that these conditions were satisfied, chiefly because there was a direct causal link between the failure to transpose the 2013 Directive and the financial loss sustained by the respondent. 23. As I have just noted, Heslin J. found that the State had failed to transpose the 2013 Directive correctly. While he acknowledged that each Member State enjoyed some degree of discretion as to the forms and methods of transposition of the Directive, Heslin J. nonetheless concluded (at paragraph 31): “It seems to me that, by inserting into domestic Regulations these particular words (not found in the Directive) the effect was to dilute the right provided for in the Directive in a clear, and sufficiently serious way, which rendered access to the labour market ineffective insofar as [Mr. K.] was concerned.” 24. This difference in wording ultimately led the judge to conclude (at paragraph 172 of the first judgment) that there was “a fundamental and material difference as between the wording found in Article 15(1) and that employed in [Article] 11(4)(b) of the 2018 Regulations which amounts to a failure to properly transpose the former”. 25. Heslin J. accordingly found that the Francovich criteria had been satisfied. He awarded Mr. K. the sum of €21,877.44 to reflect the loss of income that he had incurred because of his failure to access the labour market in a timely fashion. The State parties were granted leave to appeal directly to this Court from these decisions pursuant to Article 34.5.4⁰ of the Constitution. Part V – The first judgment of this Court 10 26. In the first judgment of this Court Dunne J. set out the relevant facts and legislation. She noted (at paragraph 57) that “some of the delay over the nine-month period involved delay which could not fairly be attributed to [Mr. K.], in particular, the period of time between September and December 2019.” While allowing for the difficulties caused by the Covid- 19 pandemic in the period from March 2020 onwards, she also noted that “some of the delay that has taken place in this case is simply inexplicable and can only be attributable to [Mr. K.]”. That raised the question of “how are the various elements of delay in processing this application for international protection to be attributed?” 27. Dunne J. then went on to observe (at paragraph 60) that “[i]n considering whether or not there has been a failure to transpose the Directive correctly, it is impossible not to have regard to the fact that the wording in the 2018 Regulations is different from that used in the Directive, by reason of the inclusion of the additional words, ‘attributed in part’”. Given these uncertainties, Dunne J. concluded that it was appropriate to make an Article 267(3) reference to the Court of Justice. The first three questions posed related to the interpretation of the concept of delay as used in Article 15(1) of the 2013 Directive. The fourth question concerned the inclusion of the additional words “attributed in part” found in Article 11(4)(b) of the 2018 Regulations, but which are not contained in Article 15(1) of the 2013 Directive. The fourth question effectively asked whether this meant that the 2013 Directive had not been properly transposed into Irish domestic law. Part VI - The judgment of the Court of Justice in Havvitt 28. The Court of Justice delivered judgment on the reference on 15th January 2026 using the name Havvitt (Case C-742/24, EU:C:2026:15). The Court first addressed the interpretation of Article 15(1), stressing (at paragraph 33) that a “delay in the processing of an application for international protection may be attributed to the applicant where he or she has failed to 11 cooperate with the competent national authorities”. Thus, for example, the Court considered (at paragraph 34) that an applicant’s failure to provide any information enabling the authorities to examine the application for international protection for a period exceeding the nine-month period from the lodging of that application “constitutes a total lack of cooperation which justifies that applicant not being able to have access to the labour market under Article 15(1) of Directive 2023/33 at the end of that period.” 29. The Court stressed, however, that in other cases (at paragraph 35) “a failure on the part of the applicant to cooperate for a part of that time interval cannot have such a consequence”. In such a situation the only consequence (at paragraph 36) “of the delay in processing his or her application must be the extension of that nine-month period by the time interval during which that applicant’s failure to cooperate led to that delay.” 30. The Court of Justice further explained (at paragraph 40) that: “….[I]n order for a delay to be attributed to an applicant for international protection, it must be established, in the light of all of the relevant circumstances of the case, that there is a causal link between that applicant’s conduct and the delay established, with the result that the applicant may be held responsible only for the delays resulting from his or her actions. It follows that, in the case of a delay for which it is established that the causes are mixed, it is important to be able to determine the proportion of that delay attributable to that applicant.” 31. This interpretation of Article 15(1) had the further consequence that there was no issue regarding the manner of transposition effected by the 2018 Regulations. The Court concluded (at paragraph 46) that Article 15(1) does not preclude national legislation (such as the 2018 Regulations) which denies an applicant access to the labour market where there has not been a first instance decision within nine months, where the reasons for the delay 12 may be attributed “in part” to the applicant. This conclusion is of some importance for the ultimate disposition of this appeal because Mr. K.’s claim for Francovich damages essentially rested on him establishing that Article 15(1) of the 2013 Directive had not been properly transposed in the first instance or, alternatively, that it had not been properly applied in the circumstances of this case. Part VII –The application of the Havvitt principles to the present case 32. In view of the clarifications now provided by the judgment of the Court of Justice, we may now proceed to apply these principles to the present case. The first thing to note is that this Court is concerned only with the relatively short period of delay, namely, from the date of the original application for international protection on 2nd September 2019 until the date of the first instance decision concerning permission to access the labour market on 28th August 2020 which was at issue before the High Court. 33. Second, it is clear from the judgment in Havvitt that the issue of delay is not simply a binary choice of asking whether there has been delay on the part of the applicant, such that any culpable delay on his part renders him ineligible for labour market access at the end of the nine-month period. One must instead further ask whether there is a causal link between the conduct of the applicant and the delay in the adoption of a first instance decision, so that only the delay which is attributable to him can be taken into account in making this assessment. 34. Third, viewed from that perspective, it is clear that at least aspects of the reasoning of the IPAT cannot now be stood over. Mr. K. cannot be held responsible for the delay between 2nd September 2019 and 12th December 2019, since it is accepted that by reason of some mischance he was in fact never notified of the s. 15 interview which had been scheduled for 16th September 2019. Nor can he be held responsible for the delay between 12th 13 December 2019 and 28th January 2020, the latter day being the day on which he was first assigned legal representatives. 35. It was then reasonable for those solicitors to seek a short extension of time until the end of February 2020 while they obtained instructions before filing the completed questionnaire. The months of March and April 2020 were then complicated by the emergence of the Covid-19 pandemic and the difficulty in obtaining interpreters during this period. I consider that one can thus fairly excuse Mr. K.’s delay until the end of April 2020. But no excuse whatsoever has been proffered in respect of any delay after that date. Even if, therefore, every possible allowance is made in Mr. K.’s favour (and I have, if anything, erred on the side of generosity so far as he is concerned), he still falls short of the nine months’ requirement contained in Article 15(1) of the 2013 Directive. To that extent, therefore, the actual decision of the IPAT was correct, even if following the judgment of the Court of Justice a key part of the reasoning of the Tribunal cannot now be supported. 36. All of this means that as Mr. K. has not established that there was a delay of nine months in reaching a first instance decision in respect of which no aspect of that delay was attributable to him, he was not therefore at the end of August 2020 entitled to a permission for labour market access. It follows in turn that Mr. K.’s claim for Francovich damages must also fail. That claim was predicated on the invalidity of the IPAT decision of 3rd March 2021. But if that decision was legally valid (as it was), then no claim for Francovich damages can arise, since no breach of EU law or EU entitlements has been established. Part VIII - Overall conclusions 37. It remains to summarise my overall conclusions. I consider that it is clear that the transposition claim has disappeared from the case since the 2018 Regulations have now 14 been held to be a faithful reflection of the effect of Article 15(1) of the 2013 Directive as interpreted by the Court of Justice. 38. If one then seeks to apply the principles regarding delay as explained by that Court, it is clear that while a good deal of the delay is not attributable to Mr. K. he has nonetheless not established that there has been a nine-month delay in arriving at a first instance decision which delay is not attributable to him, whether in part or otherwise. In these circumstances the IPAT’s decision which upheld the earlier decisions refusing to grant Mr. K. labour market access was a legally correct one, even if elements of the reasoning underpinning that decision can no longer be legally supported in the light of the Court of Justice’s judgment. 39. Since the decision of the IPAT must accordingly be adjudged to be valid and as the improper transposition argument fell away in the light of the decision of the Court of Justice regarding the interpretation of Article 15(1) of the 2013 Directive, it follows, therefore, that there has in fact been no breach of EU law. This means that the claim for Francovich damages cannot be established. 40. In these circumstances it follows that the appeal of the State parties against both decisions of the High Court must be allowed.