The Supreme Court has held that an international protection applicant was not entitled to Francovich damages, following confirmation by the Court of Justice of the European Union that the State had correctly transposed EU law governing access to the labour market for asylum seekers.
Delivering judgment, Mr Justice Gerard Hogan found that the European Communities (Reception Conditions) Regulations 2018 constituted a “faithful reflection” of Article 15(1) of Directive 2013/33/EU. While elements of the reasoning of the International Protection Appeals Tribunal (IPAT) could no longer be supported in light of the CJEU’s interpretation, its ultimate conclusion refusing labour market access was legally correct.
The respondent, a Georgian national, applied for international protection in September 2019 but experienced delays in progressing his application, including late submission of a questionnaire in August 2020 due to difficulties obtaining legal representation, translation assistance and the impact of the Covid-19 pandemic. In June 2020, he applied to the Labour Market Access Unit for permission to work. That application was refused on the basis that the delay in reaching a first instance decision was attributable to him, a position upheld on review and by the IPAT in March 2021 on grounds of failure to cooperate.
Article 15(1) of Directive 2013/33/EU requires Member States to grant access to the labour market no later than nine months after an application is lodged, provided no first instance decision has issued and the delay cannot be attributed to the applicant. The High Court had previously found that the 2018 Regulations improperly transposed this provision by allowing refusal where delay was attributable “in part” to an applicant, and it awarded Francovich damages.
On appeal, the Supreme Court referred questions to the CJEU, which ruled in January 2026 that the inclusion of the phrase “in part” did not render the Irish transposition unlawful. The CJEU clarified that a complete failure to cooperate could justify refusal of access to the labour market, while partial non-cooperation would instead justify extending the nine-month period by the duration of the applicant’s delay.
Applying that interpretation, Hogan J. held that the correct approach required identifying a causal link between the applicant’s conduct and any delay in the decision-making process. The Court accepted that certain delays were not attributable to the respondent, including failures to notify him of his interview, delays in securing legal representation, and disruptions caused by the pandemic in early 2020. However, even allowing for these factors, the respondent had failed to account for subsequent delays, with the result that he did not satisfy the nine-month requirement under Article 15(1).
In those circumstances, the Court concluded that the refusal of labour market access was lawful and that no breach of EU law had been established. It followed that the claim for Francovich damages could not succeed.
The Supreme Court accordingly allowed the State’s appeal and set aside the High Court’s award of damages.