S.A. v The Minister for Children and Others; R.J. v The Minister for Children and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Cian Ferriter
• Judgment Date: 14 December 2023
• Neutral Citation: [2023] IEHC 717
• Court: High Court
• Docket Number: Record No: 2023/209 JR

In the Matter of Directive 2013/33/EU and

The EU (Reception Conditions) Regulations 2018

Between:

S.A.

Applicant

and

The Minister for Children, Equality, Disability, Integration and Youth, Ireland and The Attorney General

Respondents

Between:

R.J.

Applicant

and

Minister for Children, Equality, Disability, Integration & Youth, Ireland and The Attorney General

Respondents

[2023] IEHC 717

Record No: 2023/209 JR

Record No: 2023/541 JR

THE HIGH COURT

JUDICIAL REVIEW

Judgment of Mr Justice Cian Ferriter delivered this 14th day of December 2023

Introduction

1 The applicants in these proceedings arrived in Ireland in mid-February (in the case of A.) and mid-March (in the case of J.) of this year, and sought international protection. Both applicants qualified for “material reception conditions” under the relevant EU and Irish legislation for international protection applicants, being the Reception Conditions Directive 2013/33/EU ( “the Directive”) which is transposed into Irish law by the European Communities (Reception Conditions) Regulations 2018 ( S.I. 230/2018) ( “the Regulations”). Such conditions include the basic needs of accommodation, food, clothing and access to personal hygiene facilities. The State failed to provide the applicants with accommodation. As a result, A. spent 71 days homeless on the streets. J. was street homeless for 63 days. The respondents (for ease, the “State”) accept that the applicants were denied their entitlements to accommodation under the relevant legislation and consents to declarations of breach of the applicants' rights. The applicants also claim damages arising the failure of the State to provide for their basic needs. The State opposes the claims for damages on the basis that the failure to provide the applicants with accommodation, in particular, arose from the force majeure circumstances of saturation of available international protection accommodation capacity stemming from the huge influx of Ukrainian refugees arising from the war in Ukraine and an unexpectedly large increase in the numbers of other international protection applicants arriving in Ireland in the same period.

2 While the two applicants properly brought their claims in separate proceedings, I am giving a joint judgment on the two claims in circumstances where the two cases represent “test” cases from a pool of some 50 or so such cases that have been brought arising out of the same broad circumstances i.e. single male adult international protection applicants being left street homeless for periods following their arrival in Ireland to claim protection. The problem of such applicants being left street homeless ran from 24 January 2023 (when the International Protection “Transit Hub” located in Citywest, Dublin reached capacity) until 9 June 2023 (when the State was in a position to provide accommodation to all remaining international protection applicants who had not been provided accommodation to that point).

3 The cases raise potentially significant questions of EU law as to the availability and scope of a force majeure defence to claims for damages for breach of State liability for inviolable fundamental rights under the Charter of Fundamental Rights of the European Union (“the Charter”). As explained in this judgment, I have concluded that a reference to the CJEU on such questions is necessary to enable me determine the claims in these proceedings.

Procedural background

4 Hyland J. granted leave to apply for relief by way of judicial review in the A. case. The J. case came before me as a telescoped hearing. For the sake of good order, I should say that I am satisfied to grant leave to apply for judicial review in the J. case. Accordingly this judgment proceeds on the basis that I am dealing with the substantive claims for which leave has been granted in both cases.

Prior relevant litigation

5 A number of cases concerning international protection applicants who were left homeless came before the courts earlier this year when the problem first started to manifest itself. Many of these applicants sought urgent injunctive relief to ensure that they were provided with accommodation. One of those cases was S.Y. v Minister for Children, Equality, Disability, Integration and Youth [2023] IEHC 187 (“ S.Y.”). In that case, Meenan J. held that the State was in breach of its obligations under the Regulations and Article 1 of the Charter in failing to provide an international protection applicant with accommodation and granted the following declarations, despite opposition from the State:

• (i) A Declaration that the Minister's failure to provide to the applicant the “material reception conditions” pursuant to the European Union (Reception Conditions) Regulations 2018 is unlawful;

• (ii) A Declaration that the failure by the Minister to provide to the applicant the “material reception conditions” pursuant to European Union (Reception Conditions) Regulations 2018 is in breach of the applicant's rights under Article 1 of the Charter of Fundamental Rights of the European Union.

6 The State accepts that similar declarations are appropriate in each of the applicants' cases here.

7 The State maintains that it accepted in the S.Y. proceedings that there was a breach of the Regulations but argued that a declaration was not necessary or appropriate in the circumstances. The State contended that force majeure was not run as an argument in that case, which was a hearing on an application for declaratory relief in the context of an admitted breach of the Regulations. The Minister denied a breach of Article 1 of the Charter but lost on that issue. The applicant there also maintained a case for breach of Articles 3, 4 and 7 of the Charter, in addition to Article 1 but Meenan J. confined his findings to a breach of Article 1. As I shall come to later in this judgment, the applicants contend that the State cannot run a force majeure case in answer to the claim for damages where it ran a form of “impossibility” defence in the S.Y. case and lost that argument there i.e. where force majeure was not available as a defence to liability it could not now be available as a defence to a claim for damages.

Scope of the applicants' claims

8 While the applicants' pleaded cases sought damages for, inter alia, breach of statutory duty, it was common case at the time of the hearing before me that the cases were claims for “ Francovich damages” governed by the principles found in the jurisprudence arising from the seminal case of Francovich (Joined Cases C-6/90 and C-9/90) (“ Francovich”).

Applicable legislative framework

9 It is necessary to briefly sketch the applicable legislative framework.

10 Article 1 of the Charter is titled “Human dignity and provides:

“Human dignity is inviolable. It must be respected and protected.”

11 The Reception Conditions Directive ( Directive 2013/33/EU) (“the Directive”) determines the minimum standards for the reception of applicants for international protection, such as the applicants in this case. In particular, as acknowledged in the recitals:

“(10) With respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are party.

…

(35) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1, 4, 6, 7, 18, 21, 24 and 47 of the Charter and has to be implemented accordingly.”

12 Article 17 of the Directive sets out the general rules on material reception conditions as follows:

“ 1. Member States shall ensure that material reception conditions are available to applicants when they make their application for international protection.

2. Member States shall ensure that material reception conditions provide an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health.” (emphasis added)

13 As can be seen, the terms of article 17 are mandatory and immediate on application for international protection.

14 Article 18 of the Directive sets out the modalities for material reception conditions and provides in particular at para. 9:

“ 9. In duly justified cases, Member States may exceptionally set modalities for material reception conditions different from those provided for in this Article, for a reasonable period which shall be as short as possible, when:

(a) an assessment of the specific needs of the applicant is required, in accordance with Article 22;

(b) housing capacities normally available are temporarily exhausted.

Such different conditions shall in any event cover basic needs .” (emphasis added)

15 In Case C-79/13 Saciri (“ Saciri”) (with reference to the original Reception Conditions Directive (2003/9/EC)), the Court of Justice (at paras 34–35) explained the nature and origin of the obligation to provide material reception conditions to applicants, emphasising the need to protect the right to human dignity as a result of which Member States may not deprive asylum seekers, “even for a temporary period of time” of the protection of the minimum standards laid down in the Directive. This approach has been consistently re-iterated: see Haqbin ( Case C-223/18 ECLI:EU:C:2019:956) (“ Haqbin”) (a case in which a recipient of material reception conditions was expelled from reception accommodation due to violent behaviour) and T.O. ( Case C-422/21, ECLI:EU:C:2022:616) (“ T.O.”) (another reception accommodation withdrawal case).

16 It is common case that the Regulations faithfully transpose the Directive for the purposes of the issues arising in this case.

17 The Regulations define “Material Reception Conditions” as being...