On 13 April 2010, Ms. Danqua, a Ghanaian national, applied for refugee status in Ireland arguing that she feared trokosi practices, a form of ritual servitude practised in Ghana predominantly affecting women. In a report dated 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, 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 her asylum application had been rejected 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, because it had not been lodged within the 15 working day period 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). She argued that there was a breach of the principle of equivalence because she was obliged  to comply with a time limit to make an application for subsidiary protection and compliance with a similar time limit was not required for making an application for asylum. The High Court dismissed the action, holding that the principle of equivalence was not applicable to the case in point. On 13 November 2014, Ms Danqua brought an appeal against that judgment before the Court of Appeal, reiterating the same line of argument. The Court of Appeal, whilst raising the question of the relevance of the principle of equivalence, considered that an application for asylum may constitute an appropriate comparator for the purposes of ensuring observance of the principle of equivalence. On the time limit, the court found it is justified by objective considerations. In this context, the Court of Appeal (referring court) stayed the domestic proceedings and referred for a preliminary ruling the following questions:

‘(1)      Can an application for asylum, which is governed by domestic legislation which reflects a Member State's obligations under [Directive 2004/83], be regarded as an appropriate comparator in respect of an application for subsidiary protection for the purposes of the principle of equivalence?

(2)      If the answer to the first question is in the affirmative, is it relevant for this purpose that the time limit imposed in respect of applications for subsidiary protection serves the important interest of ensuring that applications for international protection are dealt [with] within a reasonable time?'

The CJEU examined the questions together. At the outset, the court noted that Directive 2004/83 on minimum standards for the qualification and status of third-country nationals did not contain any procedural rules applicable to the examination of an application for international protection. The court also noted that Directive 2005/85 establishing minimum standard on the procedures for examining applications applies to applications for subsidiary protection only where a Member State has established a single procedure under which an application is examined by reference to both forms of protection. However, the court noted that it was not the case in Ireland at the time of the proceedings. In such a case, in the absence of EU rules  concerning the procedural requirements to attach to the submission and examination of an application for subsidiary protection applicable in Ireland, the court held that it was for the domestic legal system of that Member State to determine those requirements, provided the principle of equivalence and the principle of effectiveness are respected.

The CJEU held that invoking the principle of equivalence was irrelevant. The court explained that respect for the principle requires that a national rule be applied without distinction to procedures based on EU law and those based on national law, however, the two types of applications were both based on EU law and it was not apparent that Irish law relating to asylum included substantive national rules supplementing EU Law.

In view of this, the CJEU reformulated the question posed to provide the national court with a useful answer. It stated that the two questions referred had to be understood as asking whether 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 the applicant whose asylum application has been rejected may make an application for subsidiary protection. The court highlighted that to analyse whether a national provision renders EU Law impossible or excessively difficult the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies must be considered. In that context, it is necessary, inter alia, to take into consideration, where relevant, the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the procedure.  

Thus, it would be appropriate to consider whether a 15-day time limit may be justified to ensure the proper conduct of the procedure for examining an application for subsidiary protection, in light of its implications for the application of EU law. The court recalled that on time limits it has indicated that it is for the Member States to establish those time limits in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration.

Citing the Advocate General Bot considerations, the court emphasized that the procedure for examining applications for subsidiary protection is of particular importance since it enables applicants for international protection to safeguard their most basic rights by the grant of such protection. In view of this, the court held, considering the difficulties that applicants may face because of, among others, the difficult human and material situation in which they may find themselves, that a time limit of 15 days is particularly short and does not ensure, in practice, that all those applicants are afforded a genuine opportunity to submit an application for subsidiary protection and, where appropriate, to be granted subsidiary protection status. Therefore, such a time limit cannot reasonably be justified to ensure the proper conduct of the procedure for examining an application for that status.

Such a conclusion, the court held, could not be questioned on the ground that it was necessary to ensure the effectiveness of return procedures, since the time limit discussed was not directly linked to the return procedure.