A and Others v The International Protection Appeals Tribunal and Others

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms Justice Power
• Judgment Date: 29 May 2024
• Neutral Citation: [2024] IECA 133
• Docket Number: Court of Appeal Record Number: 2023/91

Between:

L.A. (A Minor Suing by His Mother and Next Friend A.A.), A.A. and N.A.

Applicants/Appellants

and

The International Protection Appeals Tribunal, The Minister for Justice and Equality, Ireland and The Attorney General

Respondents

[2024] IECA 133

Ní Raifeartaigh J.

Power J.

Allen J.

Court of Appeal Record Number: 2023/91

High Court Record Number: 2022/275 JR

THE COURT OF APPEAL

CIVIL

Unapproved

JUDGMENT of Ms Justice Power delivered on the 29 ^th day of May 2024

Introduction

1 . This case raises the novel question of whether a right, conferred upon an individual, may be exercised, vicariously or ‘ by proxy’, on behalf of that individual with the aim of ensuring that the person concerned is not deprived of the benefit of the right, by reason of an incapacity to exercise the right conferred.

2 . The question as it arises in this case is whether an infant, as an ‘ applicant’ under the State's scheme for international protection, has a ‘ right’ to access the labour market and, if so, whether such a right may be exercised by the infant's parents on his behalf.

3 . To understand the nature of the appellants' claim, on appeal, it is necessary to set out, briefly, the relevant provisions of European Union (‘EU’) law on which the appellants rely.

The Law

4 . Directive 2013/33/EU 1 (‘the Directive’ or ‘the Reception Conditions Directive’) lays down minimum standards within the EU for the conditions that govern the reception of persons seeking international protection and it does so in the form of obligations that are enforceable against Member States. Having opted into the Directive, the Irish State was obliged to bring into force regulations necessary to ensure Ireland's compliance with the terms thereof. The European Communities (Reception Conditions) Regulations 2018 ( S.I. 230/2018), as amended by the European Communities (Reception Conditions) (Amendment) Regulations 2021 ( S.I. 52/2021), the European Communities (Reception Conditions) (Amendment) (No. 2) Regulations 2021 ( S.I. 178/2021) and (more recently) the European Communities (Reception Conditions) (Amendment) Regulations 2023 (S.I. 649/2023), constitute the means by which the Irish State gives effect to the Directive. Unless otherwise specified, I shall refer to the Regulations and their amending provisions, collectively, as ‘the 2018 Regulations’.

The Directive

5 . Several recitals of principle precede the Articles set out in the Directive. For example, Recital 9 provides that, in applying the Directive, Member States ought to seek to ensure full compliance with the principles of the ‘ best interests of the child’ and of family unity. Recital 11 stipulates that standards for the reception of applicants should suffice to ensure them ‘ a dignified standard of living’. To promote the self-sufficiency of applicants, Recital 23 provides that it is essential that clear rules on their access to the labour market are laid down. Recital 35 recalls that the Directive seeks to ensure ‘full respect for human dignity’.

6 . Article 1 of the Directive sets out its purpose which is to ‘ lay down standards for the reception of applicants for international protection’ in Member States.

7 . Definitions of several relevant terms are set out in Article 2. An ‘ applicant’ means a ‘ third-country national or a stateless person who has made an application for international protection in respect of which a final decision has not yet been taken’. 2 The phrase ‘ family members’ is defined, inter alia, to include the parents of a minor applicant. 3 Whereas ‘ reception conditions’ are said (in Article 2(f)) to denote the ‘ full set of measures that Member States grant to applicants in accordance with [the Directive]’, ‘ material reception conditions’ mean the ‘ reception conditions that include housing, food and clothing provided in kind, or as financial allowances or in vouchers, or a combination of the three, and a daily expenses allowance’ (Article 2(g)).

8 . Article 5 concerns the provision of information in respect of the general reception conditions and provides that Member States must inform applicants, in writing, of any

established benefits to which they are entitled and of their obligations in respect of reception conditions. If applicants are provided with housing, Member States must take appropriate measures to maintain, as far as possible, family unity within their territory (Article 12). Subject to certain provisions, Members States are obliged to grant to minors (whether applicants or children of applicants), access to the education system under conditions similar to those of their own nationals (Article 14)

9 . Central to this appeal is the requirement set out in Article 15 of the Directive. Where there has been a delay on the part of a Member State in deciding an application for international protection (the outer permissible limit for such being nine months), then, Article 15 requires that an applicant be given access to the labour market. 4 It provides:

“1. Member States shall ensure that applicants have access to the labour market no later than 9 months from the date when the application for international protection was lodged if a first instance decision by the competent authority has not been taken and the delay cannot be attributed to the applicant.

2. Member States shall decide the conditions for granting access to the labour market for the applicant, in accordance with their national law, while ensuring that applicants have effective access to the labour market.

For reasons of labour market policies, Member States may give priority to Union citizens and nationals of States parties to the Agreement on the European Economic Area, and to legally resident third-country nationals.

3. Access to the labour market shall not be withdrawn during appeals procedures, where an appeal against a negative decision in a regular procedure has suspensive effect, until such time as a negative decision on the appeal is notified.”

10 . Article 17 requires that material reception conditions be made available to applicants at the time when their application for international protection is made. Such conditions must provide ‘ an adequate standard of living’, which guarantees applicants' subsistence and protects their physical and mental health. Material reception conditions may be provided in the form of financial allowances or vouchers. Article 17(5) permits, in principle, the granting of less favourable treatment to applicants than that which is afforded to nationals of Member States ‘in particular where material support is partially provided in kind or where those level(s), applied for nationals, aim to ensure a standard of living higher than that prescribed for applicants under this Directive’.

11 . Minors are classified as ‘ vulnerable persons’ under Article 21 and, when implementing the Directive, Member States are obliged to take their specific situation into account. To that end, Article 22 imposes upon Member States the obligation to assess whether a vulnerable applicant has ‘ special reception needs’ and to indicate the nature of any such needs. 5 Member States must ensure that the support provided takes account of any such special reception needs throughout the duration of the application procedure and States must also provide for appropriate monitoring of the situation.

12 . Member States are required, under Article 23 of the Directive, to regard the ‘ best interests of the child’ as a primary consideration when dealing with minors. In making this assessment, they must take due account of certain factors, including, the minor's social development and their safety and security. Moreover, Member States are obliged to ensure that minors are ‘ lodged with their parents’ and have access to leisure activities, including, play and recreational facilities. Member States must ensure ‘ a standard of living adequate for the minor's physical, mental, spiritual, moral and social development.’

The 2018 Regulations

13 . The Directive, as noted, has been transposed into Irish law by the 2018 Regulations. Pursuant thereto, an ‘ applicant’ means, inter alia, an applicant under the International Protection Act 2015 (‘the 2015 Act’) and a ‘ recipient’ includes an applicant. A ‘ family member’ is defined, inter alia, as the unmarried minor children of a recipient and, where a recipient is a minor and unmarried, then, his or her parents. 6

14 . A recipient shall, subject to the 2018 Regulations, be entitled to receive the material reception conditions where he or she does not have sufficient means to have an adequate standard of living (Regulation 4). This entitlement may be varied or withdrawn.

15 . Reflecting the principles recorded in Recital 9 and Article 23 of the Directive, Regulation 9(1) provides that, in the application of the 2018 Regulations, the ‘ best interests of the child’ must be a primary consideration.

16 . Regulation 11, transposing into domestic law the provisions of Article 15 of the Directive, provides that, save as may be required by law, an applicant must not seek, enter or be in employment (or self-employment), except in accordance with a valid ‘ labour market access permission’ (‘a LMAP’), granted by the Minister for Justice (‘the Minister’). 7

17 . The specific provisions governing the grant of a LMAP are set out in Regulation 11(4). Pursuant thereto, the Minister may, on receipt of an application made in accordance with paragraph (3), grant a permission to the applicant where the Minister is satisfied that:

“(a) subject to paragraph (6), a period of 6 months, beginning on the application date, has expired, and, by that date, a first instance decision has not been made in respect of the applicant's protection application, and

(b) the situation referred to in subparagraph (a) cannot be attributed, or attributed in part, to the applicant.”

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