Supreme Court: Appeal allowed against award of Francovich damages to international protection applicant

About this case:

• Citation:
  [2026] IESC 25
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Gerard Hogan

Delivering judgment for the Supreme Court, Mr Justice Gerard Hogan determined that 2018 regulations transposing Article 15(1) of Directive 2013/33/EU were a “faithful reflection” thereof and that “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”.

Background

On 2 September 2019, the respondent, a Georgian national, applied for international protection. The respondent was not notified of his interview date with the International Protection Office (IPO) on 16 September 2019, leading a social worker to arrange his interview for 12 December 2019.

At interview, the respondent received an international protection questionnaire, which was not submitted until 25 August 2020 in light of a delay in obtaining legal representation, the necessity to obtain a Georgian translator and due to the Covid-19 pandemic.

In the interim, the respondent applied in June 2020 to the Labour Market Access Unit (LMAU) for permission to access the labour market.

On 28 August 2020, the LMAU refused this application on the basis that delay in issuing the first instance international protection decision was attributable to the respondent. This decision was upheld by a review officer within the Minister’s office.

The respondent challenged that decision before the International Protection Appeals Tribunal (IPAT), which rejected his appeal in a decision dated 3 March 2021.

The IPAT concluded that permission should be refused on grounds that the delay in issuing the first instance decision in respect of the respondent’s international protection application was attributable to him, where the respondent had failed to cooperate in the processing of his application.

Article 15(1) of Directive 2013/33/EU provides that Member States are obliged to ensure that applicants have access to the labour market no later than nine 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.

Article 11(4)(b) of the European Communities (Reception Conditions) Regulations 2018 (SI No. 230 of 2018) sought to transpose Article 15(1), providing that the Minister may grant permission to work to an applicant where satisfied that a period of 9 months has expired without a first instance decision having been made in respect of the applicant’s protection application, and where that delay cannot be attributed, or attributed in part, to the applicant.

The High Court

The respondent successfully challenged the validity of the IPAT’s decision before the High Court, which found that there was a material difference between the wording of Article 15(1) and Article 11(4)(b) giving rise to a situation whereby permission to work could be refused if any delay could be attributed in part to an applicant, even if there was delay due to mixed causes.

The High Court awarded Francovich damages on the basis that the 2018 Regulations had failed to properly transpose the 2013 Directive.

CJEU

The State authorities were granted leave to appeal directly to the Supreme Court.

The Court referred to the European Court of Justice (CJEU) questions concerning the interpretation of Article 15(1) of Directive 2013/33/EU and whether the 2018 Regulations had properly transposed those provisions.

On 15 January 2026, the CJEU rejected the argument that the 2018 Regulations had failed to properly transpose Article 15(1) in light of the addition of the words “attributed in part” in Article 11(4) which did not appear in Article 15(1).

The CJEU found that the respondent’s failure to provide any information enabling the authorities to examine his application for a period exceeding the nine-month period from the date of his international protection application constituted a total lack of cooperation which justified the refusal of permission to work.

The CJEU also stressed that in other cases, a failure on part of an applicant to cooperate for a part of that time interval could not have such a consequence, and that in such a situation, the only consequence of the delay would be the extension of the 9-month period by the time interval during which the applicant’s failure to cooperate led to that delay.

The parties were not agreed as to the implications of the judgment.

Accordingly, the issues for the Supreme Court were, firstly, whether the delay in issuing the first instance decision in respect of the respondent’s international protection application between September 2019 and August 2020 was attributable to him and, secondly, whether the 2018 Regulations had correctly transposed the provisions of Article 15 of the 2013 Directive.

The Supreme Court

Mr Justice Hogan explained that it was clear from the CJEU’s judgment “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”.

The judge continued: “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.”

The Court considered that viewed from that perspective, aspects of the IPAT’s reasoning could not be stood over, as the respondent could neither be held responsible for the delay in notifying him of his interview, nor for the delay in being assigned legal representation.

The Court was also satisfied that the months of March and April 2020 were complicated by the emergence of the pandemic and the difficulty in obtaining interpreters during that period, excusing the respondent until the end of April 2020.

Noting that no excuse had been proffered in respect of the delay thereafter, Mr Justice Hogan reasoned: “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.”

The judge highlighted that to that extent, the IPAT’s decision was correct, and it followed that the respondent’s claim for Francovich damages must fail since no breach of EU law or EU entitlements was established.

Conclusion

Accordingly, the Supreme Court allowed the appeal of the State parties against the High Court’s decision.

LK v International Protection Appeals Tribunal & Ors (No. 2) [2026] IESC 25