The Supreme Court of Ireland referred questions to the CJEU for preliminary ruling on the correct interpretation and application of the concept of ‘delay' in Article 15(1) of the recast Reception Conditions Directive (RCD), specifically for access to the labour market for applicants for international protection and the appropriate test to be applied when considering whether delay on the part of an applicant can be attributed to the person and entitle the Minister to refuse a labour market permit (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). In Ireland, Regulation 11(3) of the 2018 Regulations enables an international protection applicant to apply for a labour market access permit eight months after an international protection application has been made.

In this case, L.K., a Georgian national applied for asylum in Ireland on 2 September 2019, alleging that he would face a real risk of suffering serious harm if he was returned to Georgia.

He was invited to fill in the international protection questionnaire (IPO 2 questionnaire) in Georgian and return it by 6 January 2020. After he failed to return it, he was granted several extensions of time to facilitate the submission, as he did not have a solicitor for legal advice, and there were difficulties with translators due to the COVID-19 pandemic. He submitted the questionnaire to the IPO on 25 August 2020. Separately, he sought to apply for a labour market permit. On 20 June 2020, his solicitor submitted an application to the Labour Market Access Unit (LMAU) for a workforce permit, as over eight months had expired since his international protection application was first made. The permit was refused with the justification that the delay in the issuance of a first instance decision was attributable to the applicant. The review by the Review Officer confirmed this decision on 2 December 2020.

He was ultimately issued a certificate of permission by the LMAU on 8 June 2022, and since 6 February 2023, he had a full-time job as a construction worker.

He sought leave to apply for judicial review to quash the decision of the IPAT and seeking a declaration that the authorities failed to adopt the measures necessary to transpose and/or implement Article 15(1) of the recast RCD and damages. The appeal was successful before the High Court but he further appealed on specific points before the Supreme Court.

The Supreme Court referred the following questions to the CJEU:

1. In K.S., the CJEU noted that Directive 2013/33/EU gives no guidance in relation to what acts may constitute a delay attributable to the applicant for international protection within the meaning of Article 15(1) of the Directive. In considering what acts may constitute a delay attributable to an applicant, is it appropriate to have regard to the fact that an applicant such as the respondent in this case provided no information at all (by way of response to the questionnaire) for more than the nine-month period provided for under Article 15 of the Directive?

2.Does the concept of delay for the purposes of Article 15(1) of Directive 2013/33/EU encompass only a delay that may be attributed wholly and exclusively to the applicant for international protection, or does it encompass any not insignificant delay that may be attributed to the applicant or that may be considered to constitute “non-cooperation” by the applicant?

3.In circumstances where there is significant unexplained delay on the part of an applicant for international protection, and there has also been delay on the part of the State itself, together with delay due to external factors such as those arising from Covid-19, can part of the overall delay be "attributed to the applicant" for the purposes of Directive 2013/33/EU, or must any delay in processing the application be exclusively that of the applicant?

4.Does the inclusion of the phrase, “attributed in part” in Regulation 11(4)(b) of the European Communities (Reception Conditions) Regulations 2018, S.I. No. 230/2018 mean that Ireland has failed to properly transpose Directive 2013/33/EU, given the margin of appreciation that member states enjoy in how they choose to implement the Directive and in circumstances where it does not appear that the inclusion of this phrase renders impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order?

A further issue concerns the respondent's entitlement to Francovich damages for the state's alleged failure to correctly transpose Article 15(1) by way of Regulation 11(4)(b).