CJEU: Ireland’s procedure for accepting applications for subsidiary protection incompatible with EU law

Ireland’s Court of Appeal referred the issue to the CJEU for a preliminary ruling after hearing the case of a Ghanaian woman who challenged the Minister’s refusal to accept her application for subsidiary protection outside the 15-day limit that had been imposed when the woman’s initial application for asylum was rejected.

Background

In April 2010, Ms Evelyn Danqua, a Ghanaian national, made an application for refugee status in Ireland citing her reason as fear of being subjected to trokosi practices, a form of ritual servitude practised in Ghana. In June, Ms Danqua’s application was rejected for lack of credibility, and confirmed on appeal by the Refugee Appeals Tribunal in January 2011.

In February 2011, the Minister for Justice and Equality notified Ms Danqua of a decision rejecting her application for asylum and issued a proposal to deport – in this letter, Ms Danqua was also informed that she could make an application for subsidiary protection within 15 working days.

Subsequently, an application for humanitarian leave to remain was submitted on behalf of Ms Danqua, however in September 2013, the Minister informed Ms Danqua that that application had been rejected.

Ms Danqua then lodged an application for subsidiary protection in October 2013, however she was informed 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 starting from the Minister’s aforementioned February 2011 notification.

Court proceedings

The Minister’s refusal to accept Ms Danqua’s application for subsidiary protection was challenged before the High Court on the basis of a breach of the principle of equivalence, as compliance with a similar time limit was not required for making an application for asylum.

Ms Danqua’s High Court action was dismissed, with the Court finding that the principle of equivalence was not applicable since Ms Danqua was comparing two procedural rules based on EU law.

In November 2014, when Ms Danqua brought an appeal against that judgment before the Court of Appeal, the Court decided to stay the proceedings, referring the issues to the CJEU for a preliminary ruling.

Court of Justice of the European Union

In the absence of EU rules concerning the procedural requirements attaching to the submission and examination of an application for subsidiary protection applicable in Ireland, the Court stated that it was for the domestic legal system of that Member State to determine those requirements, provided:

Observance of the principle of equivalence requires that a national rule be applied without distinction to procedures based on EU law and those based on national law – however in this situation concerning two types of applications both based on EU law, the Court was satisfied that invoking the principle of equivalence was irrelevant.

Turning to the principle of effectiveness, national procedural rules must not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order. Applied to Ms Danqua’s case, such a rule must ensure that persons applying for subsidiary protection are actually in a position to avail themselves of the rights conferred on them by Directive 2004/83.

Under the national procedural rule at issue, the applicant for subsidiary protection may, in principle, no longer submit an application for subsidiary protection status after the expiry of a period of 15 working days from notification of the rejection of his application for refugee status. The question therefore was whether this national procedural provision renders the application of EU law impossible or excessively difficult.

Regarding national rules within the scope of EU law, Pontin, C‑63/08 is for the Member States to establish time limits with regard to:

The Court found the procedure for examining applications for subsidiary protection to be particularly important as it enables applicants for international protection to safeguard their most basic rights by the grant of such protection.

In that context, taking account of the difficulties such applicants may face because of the difficult human and material situation in which they may find themselves, the Court found the 15-day time limit to be particularly short, and did not ensure that all applicants are afforded a genuine opportunity to submit an application for subsidiary protection.

Such a time limit could not reasonably be justified for the purposes of ensuring the proper conduct of the procedure for examining an application for that status.

Accordingly, the 15-day time limit was capable of compromising the ability of applicants for subsidiary protection actually to avail themselves of the rights conferred on them by Directive 2004/83.

On those grounds, the Court ruled that the principle of effectiveness must be interpreted as precluding Ireland’s national procedural rule requiring an application for subsidiary protection status to be made within a period of 15 working days of notification.