The case concerns a request for a preliminary ruling submitted by the Irish Supreme Court before the Court of Justice of the European Union (CJEU) on interpretation of Article 15 (1) of the recast Reception Conditions Directive (RCD). The referring court sought clarification on the lawfulness of the decision rejecting an applicant for international protection to have access to the labour market, on the ground that the delay in adopting a first instance decision on his case was attributable to the applicant.

L.K., Georgian national, applied for international protection in Ireland in September 2019 and had an interview with the International Protection Office (IPO) on 12 December 2019, following which the applicant was requested to submit the international protection questionnaire (IPO 2 questionnaire). The applicant was granted 4 extensions in order to submit the IPO 2 questionnaire until 24 August 2020. The third extension was allowed due to the Covid-19 pandemic and difficulties in arranging translations. The same extension has been granted to all applicants for international protection. The fourth extension was requested on 20 July 2020 following which L.K. met his translator and submitted the form to IPO on 25 August 2020. In parallel, the applicant sought access to the labour market and made a request on 20 June 2020 to the Labour Market Access Unit (LMAU) which rejected it on 28 August 2020 on the ground that the delay in processing the asylum application and issuance of a decision was attributable to the applicant’s conduct. The appeal submitted before the International Protection Appeals Tribunal was dismissed by decision of 3 March 2021. The High Court allowed the judicial review and set aside the contested decision, reasoning that the conclusion according to which the delay in the issuance of a first instance decision was attributed to the applicant for failure to comply with his obligations was unreasonable. The Minister for Justice further appealed against this decision before the Supreme Court which stayed the proceedings and submitted several questions before the CJEU for a preliminary ruling. The Supreme Court affirmed that the delay in the issuance of the first instance decision was partly attributable to the applicant for not having provided information to the IPO in due time, but it was also partly attributable to the state and the pandemic. Thus, the referring court sought guidance on interpretation of Article 15 (1) of the recast RCD, namely on the meaning of a ‘delay which cannot be attributed to the applicant’.

The following questions were submitted:

(1)      In [the judgment of 14 January 2021, The International Protection Appeals Tribunal and Others, C‑322/19 and C‑385/19, the CJEU noted that the recast RCD 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 that 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 [L.K.] 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 [that directive]?

(2)      Does the concept of delay for the purposes of Article 15(1) of the recast RCD 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 the COVID-19 pandemic, can part of the overall delay be “attributed to the applicant” for the purposes of Directive [2013/33], 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 [2018 Regulations] mean that Ireland has failed to properly transpose the recast RCD, 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?’

The court examined jointly the first to third questions and reiterated that Article 15 (1) of the recast RCD provides that applicants for international protection can obtain permission to access the labour market of the host Member State, if no first instance decision has been made within 9 months from the lodging of the application and if this delay is not attributable to the applicant.

It emphasised that, under Article 13 of the recast Asylum Procedures Directive (APD), applicants have a duty to cooperate with the relevant authorities in order to allow them to obtain accurate information the applicant’s identity, nationality, age, travel routes, documents and reasons for requesting protection. To ensure compliance with that duty to cooperate, relevant authorities may adopt stricter measures, such as restrictions on the freedom of movement, or reporting obligations.

In view of the abovementioned, the court ruled that not submitting the requested information allowing national authorities to decide on an application, for a period exceeding 9 months from the lodging of an applications equates to a total lack of cooperation. Such a lack of cooperation results in the applicant being unable to access the labour market at the end of that period. The court clarified that such a conduct leads to a situation where the 9 months period does not run. On the contrary, a failure from the applicant to cooperate for a part of that period will not have the same consequences as for a total lack of cooperation. The court explained that, for a delay to be attributable to an applicant, national authorities must establish, in view of all facts and circumstances of a case, that there is a causal link between the applicant’s conduct and the delay incurred. Consequently, the applicant may be held responsible only for the delays resulting from his or her actions. It follows that, where it is established that the causes are mixed, it is important to determine the proportion of the delay attributable to that applicant. When such a determination is feasible, the competent authority must take into consideration the fraction of that time corresponding to the applicant's share of responsibility and extend the nine months period by that fraction.

The court concluded that Article 15(1) of the recast must be interpreted as not precluding legislation of a Member State according to which the national authority which is competent to grant permission to access the labour market may refuse to grant such permission to an applicant for international protection whose application, which has been pending for at least nine months in that Member State, has still not been the subject of a first instance decision for reasons that may be attributed ‘in part’ to that applicant, in so far as only the time interval in respect of which a causal link has been established between the conduct of that applicant and the occurrence of that delay or, where there is a time interval the lapse of which is due to mixed causes, the fraction of that interval corresponding to the share of responsibility attributable to that applicant is taken into account as a basis for that refusal.