Abstract
On 13 April 2010, Ms Danqua, a Ghanaian national, made an application for refugee status, in Ireland. In a report of 16 June 2010, the Refugee Applications Commissioner (Ireland) issued a negative recommendation in respect of that application because of its lack of credibility. That recommendation was confirmed on appeal by the Refugee Appeals Tribunal (Ireland) by decision of 13 January 2011. On 9 February 2011, the Minister notified Ms Danqua of a decision rejecting her application for asylum and informed her of his proposal to make a deportation order against her (proposal to deport), telling her, inter alia, that she had the possibility of making an application for subsidiary protection within a period of 15 working days of that notification. Following that decision, the Refugee Legal Service (Ireland) informed Ms Danqua that because of the rejection of her application for asylum, she would not be assisted in preparing her application for subsidiary protection.
On 8 October 2013, Ms Danqua lodged an application for subsidiary protection. By letter of 5 November 2013, the Minister informed Ms Danqua that her application for subsidiary protection status could not be accepted, since that application had not been lodged within the period of 15 working days referred to in the Minister’s notification of 9 February 2011 rejecting her application for asylum. Ms Danqua challenged that decision before the High Court (Ireland), relying, inter alia, on a breach of the principle of equivalence based on the obligation, on an applicant for subsidiary protection, to comply with a time limit such as that at issue in the main proceedings for making an application for subsidiary protection, when compliance with a similar time limit was not required for making an application for asylum. On 13 November 2014, Ms Danqua brought an appeal against that judgment before the Court of Appeal. Ms Danqua reiterated before that court her line of argument that the obligation, on an applicant for subsidiary protection, to comply with a time limit such as that at issue in the main proceedings was in breach of the principle of equivalence, since there was no similar time limit applicable to persons making an application for refugee status.
The Court of Appeal, whilst raising the question of the relevance of the principle of equivalence in the present case, consideredthat an application for asylum may constitute an appropriate comparator for the purposes of ensuring observance of the principle of equivalence. In this connection, the referring court observes that, although the majority of applications for asylum are dealt with under the regime established by Directive 2004/83, the Member States, at least in theory, may still grant asylum in accordance with their national law. To that extent, applications for asylum fall partly within the scope of EU law and partly within the scope of national law.
The CJEU (Third Chamber) ruled that:
The principle of effectiveness must be interpreted as precluding a national procedural rule, such as that at issue in the main proceedings, which requires an application for subsidiary protection status to be made within a period of 15 working days of notification, by the competent authority, that an applicant whose asylum application has been rejected may make an application for subsidiary protection.
Country of Decision
European Union
Court Name
EU: Court of Justice of the European Union [CJEU]
Date of Decision
20/10/2016
Keywords
Access to procedures
Subsidiary Protection