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2026 IEHC 359

THE HIGH COURT JUDICIAL REVIEW Record No. 2025 / 1461 / JR [2026] IEHC 359 IN THE MATTER OF THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL and IN THE MATTER OF THE EUROPEAN COMMUNITIES (RECEPTION CONDITIONS) REGULATIONS 2018 (S.I. 230/2018) (AS AMENDED) Between B. Applicant and THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE CHIEF INTERNATIONAL PROTECTION OFFICER, THE MINISTER FOR JUSTICE, HOME AFFAIRS AND INTEGRATION Respondents JUDGMENT of Mr Justice Cian Ferriter delivered on 11th June 2026 Introduction

  1. The core issue in these proceedings is whether Article 15 of the Reception Conditions Directive (Directive 2013/33/EU) (“Article 15” and “the Directive”, respectively) confines the right to labour market access for international protection applicants only to those who have suffered undue delay in receiving a first instance decision on their international protection application or whether such a right is also available where there has been undue delay at appellate stage. The case raises questions as to the proper interpretation of Article 15 as a matter of EU law and the related question of whether Article 15 has been properly transposed into 1 Irish law by the European Communities (Reception Conditions) Regulations 2018 (S.I. 230/2018) as amended (“the Regulations”). Relevant Legal provisions
  2. Article 15 provides: “
  3. 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.
  4. 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.
  5. Access to the labour market shall not be withdrawn during appeals procedures, where an appeal against a negative decision in a regular procedure has suspensive effect, until such time as a negative decision on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.”
  6. The Directive was transposed by the Regulations which were introduced in
  7. Article 15 is transposed into Irish law in regulations 11 and 12 of the Regulations as amended, with the important difference that labour market access can now be claimed by an international protection applicant where there has been a period of delay of 6 months or more in making a first instance decision on the international protection application compared with the 9 month period specified in Article 15 of the Directive (the six month time period for delay was introduced as a result of an amendment to the 2018 Regulations effected by S.I. No. 52/2021 European Communities (Reception Conditions) (Amendment) Regulations 2021). 2
  8. Aspects of the scope of Article 15 have been considered in a number of judgments of the CJEU arising from Article 267 references made by the Irish Courts.
  9. In KS v IPAT and TS v Minister for Justice and Equality (joining the cases C-322/19 and C-385/19), judgment of 14 January 2021 (“KS”), the CJEU considered the question of the application of Article 15 to an applicant for international protection who had been denied access to the labour market on the sole ground that a transfer decision had been taken in respect of him under the Dublin III Regulation (Regulation (EU) no 604/2013). The CJEU there held (at para. 68) that the obligation on the Member State concerned to grant the applicant for international protection access to the labour market pursuant to Article 15

(1)only ceased when that applicant was finally transferred to the requested Member State pursuant to the Dublin III Regulation. 6. In Case C-742/24, Havvitt, judgment of 15 January 2026 (“Havvitt”), which arose from an Article 267 reference by the Irish Supreme Court in the case of LK v IPAT [2024] IESC 42 (“LK”), the CJEU addressed the scope of that part of the terms of Article 15
(1)which references delay not being attributed to the applicant and the question, inter alia, of whether the Irish Regulations were incompatible with the Directive in allowing reliance on delay attributable in part to the applicant in calculating the relevant period of first instance delay before an entitlement to labour market access could arise; the CJEU concluded that it was within the scope of Article 15
(1)properly interpreted to allow for such partial attribution of blame for delay in calculating the applicable delay period. (The Supreme Court delivered a further judgment in LK, following the CJEU’s judgment on the article 267 reference, applying the terms of the CJEU judgment: see LK v IPAT [2026] IESC 25. 7. I will come to the terms of those CJEU judgments later when considering the applicant’s case; it suffices to observe at this point that the CJEU was not required to consider Article 15
(2)in its terms in either KS or Havvitt. Background
  1. The applicant made a claim for international protection to the Minister on 3 May
  2. He received a first instance decision from the International Protection Office (IPO) on 24 September 2024 in which his claim for international protection was refused. He appealed 3 to the International Protection Appeals Tribunal ("IPAT") on 14 November
  3. At the date of the hearing of these judicial review proceedings before me, 8 May 2026, he has yet to receive a decision on his appeal and he has not had an oral hearing of the appeal.
  4. Accordingly, at this point, he is over two years within the international protection system and has been awaiting a final decision on his appeal for some 18 months.
  5. The applicant applied for a Labour Market Access Permission (“LMAP”) pursuant to Regulation 11
(3)of the Regulations on 31 October 2024. The Labour Market Access Unit of the Minister's Department (“LMAU”) refused his application on the basis that a first instance recommendation in respect of his international protection application had issued within six months of his application for international protection and that he therefore did not meet the conditions for the granting of an LMAP as per Regulation 11
(4)of the Regulations.
  1. The applicant requested a review of this decision on 21 January 2025 on the basis that the LMAU erred in finding that the applicant could not be granted access to the labour market while an international protection appeal was pending. The LMAU conducted a review and replied on 22 January 2025 affirming the initial decision on the essential basis that the applicant was not entitled to an LMAP as he had received an international protection decision at first instance within six months of his international protection application.
  2. The applicant appealed this decision to IPAT pursuant to Regulation 21
(1)of the Regulations. The ground of appeal was that, although a first instance decision was made within six months, the final decision of IPAT "will not issue until a much longer period and given that this has suspensive effect during the case it is unreasonable for the applicant to be excluded from the labour market process during the appeal process". The appeal application noted that the applicant had no control over how long it would take for IPAT to determine his appeal.
  1. IPAT affirmed the decision under appeal, in its decision of 24 February
  2. The IPAT decision noted (at para. 15) that: "Access to the labour market for international protection applicants is subject to certain conditions. The Regulations are clear in this regard. Permission to access the labour market may only be granted after a period of six months, beginning on the application 4 date, has expired, and by that date, a first instance decision has not been made in respect of the applicant's protection application."
  3. The IPAT decision went on to note that: "It is well-established that the Directive does not provide an unqualified right to access the labour market. By way of example, in A & ors v The International Protection Appeals Tribunal & ors [2024] IECA 133, the Court of Appeal highlighted that Regulation 11 of the 2018 Regulations places an express time limit on the amount of time during which a person may be prevented from seeking employment and that there is a difference between one being prevented absolutely from seeking employment and one being prevented from seeking employment for a limited period based on refusal to recognise a precarious or derived right of access during that period."
  4. On 22 July 2025, the applicant made a further application for LMAP. On 6 August 2025, the LMAU rejected the fresh application as ineligible on the basis that the reasons given for the previous refusal still applied.
  5. On 2 September 2025, the applicant submitted an appeal against that refusal. It was submitted on his behalf that the applicant should now be granted permission "because of the additional length of time his case is now taking". The grounds for review were that, while he was refused an LMAP previously as he had received an IPO decision within six months of applying for international protection, "the situation has changed as he has filed an appeal with the IPAT over six months ago and this has not been processed", and it was submitted that this six-month delay in addition to the time taken in relation to his initial application for protection meant he should be granted labour market access and that there should be a discretion to grant such access at that juncture.
  6. The LMAU decided, on 4 September 2025, that the applicant was not entitled to a further review decision as he had already enjoyed a review decision on 22 January 2025 which was affirmed by IPAT on 24 February
  8. On 10 September 2025, the applicant appealed the second review refusal to IPAT. His appeal submission stated that he had been refused labour permission previously: 5 “…but he has re-applied as he is over six months waiting for an IPAT hearing and is suffering financial deprivation as he has a lack of sufficient financial resources to meet basic needs. This has led to stress, anxiety, and negative impacts on his well-being. We submit there is discretion to grant him labour permission and he is entitled to it under EU and national law.”
  9. The submission enclosed the applicant's CV and advised that he was skilled and would get employment immediately if granted permission; a job offer to the applicant was also enclosed.
  10. The IPAT replied to the appeal application, by email of 11 September 2025, noting that the appeal had already been determined and that the grounds advanced in the appeal notice were addressed by IPAT’s decision of 24 February
  11. The email stated that "The Tribunal is now functus officio in this appeal having issued its decision".
  12. While the applicant contended that it was incorrect of IPAT to take the position, as a matter of law, that it was functus officio in relation to his further review appeal (on the basis that, at least in principle, a valid second application for labour market permission could be put before the Minister and any decision on such an application appealed to the Tribunal), it was accepted that I did not need to decide that issue in the circumstances of this case. The applicant’s case
  13. The applicant builds his case as follows. He accepts that Article 15
(1)creates a specifically defined right of access to the labour market for international protection applicants where there has been a delay, not attributable to the applicant, of a specified period (of not more than 9 months per the Directive; the Regulations stipulate a period of not more than 6 months) in failing to have a first instance decision on an international protection application. However, he contends the labour market access rights created by Article 15 for international protection applicants are not confined to the Article 15
(1)right. Rather, he contends, that there is a broader, free-standing right to labour market access created by Article 15
(2)for international protection applicants, such as those in the position of the applicant, who 6 have had to endure a lengthy delay in having their appeal against a first instance refusal determined notwithstanding that their first instance decision was a timely one. 23. The applicant locates this right in the second part of the first paragraph of Article 15
(2)i.e. that Member States shall ensure that “applicants have effective access to the labour market". Article 2(b) of the Directive defines "applicant" as a third-country national or stateless person who has made an application for international protection in respect of which a final decision has not yet been taken. The applicant in this case is, accordingly, an “applicant” for the purposes of Article 15
(2). On his reading of Article 15
(2), the applicant contends that Member States are obliged to “ensure” that an applicant has “effective access to the labour market”. While he accepts that Article 15
(2)may be read as addressing the conditioning of the right of access created by Article 15
(1), he says that the better interpretation is that it creates the broader right of labour market access he contends for. He says that this follows from a teleological interpretation of Article 15, read in light of the Directive as a whole. 24. The applicant submits that Recital 23 of the Directive provides a basis for his reading of Article 15
(2)in stating that "It is essential to provide clear rules on the applicant's access to the labour market". He says that the root of such a right of labour market access lies in respect for human dignity and autonomy/self-sufficiency and this is supported by Recital 35 which references, inter alia, the Directive seeking to ensure full respect for human dignity and to promote the application of various fundamental rights provisions of the Charter, including Article 1 and 21 (Article 1 being the bedrock provision that states that human dignity is inviolable and must be respected and protected, and Article 21 containing a prohibition against discrimination). 25. The applicant submits that support for this broader teleological interpretation of Article 15
(2)can be found, by analogy, in the analysis undertaken by the Supreme Court (O’Donnell J, as he then was) in NHV v Minister for Justice & Equality [2018] 1 IR 246 (“NHV”), where O’Donnell J characterised the right to seek employment in Irish constitutional law as stemming from the right to dignity found in all persons who, in accordance with Article 40.1 of the Irish Constitution, shall be held equal before the law. In NVH, an open-ended, indefinite exclusion from the right to seek work for asylum seekers was found to be contrary to Article 40.1 of the Constitution. As the right to work in the sense of a freedom to seek employment is part of the human personality, and Article 40.1 require that individuals as human persons must be held 7 equal before the law, it followed that those aspects of the right which are part of the human personality cannot be withheld absolutely from non-citizens (at para. 18). The relevant provision in issue in that case (s. 9
(4)of the Refugee Act 1996) was held to be unconstitutional in not merely limiting the rights severely but removing it altogether. As O’Donnell J. stated at para 20: “However, s 9
(4)of the 1996 Act does not merely limit the right severely: it removes it altogether. If there is no limitation on the time during which an application must be processed, then s 9
(4)could amount to an absolute prohibition on employment, no matter how long a person was within the system. Of course it is correctly observed that part of the difficulty here lies within the considerable time which has elapsed within the system for the determination of the application in this case. It may be the case that if there was a legal or practical limitation upon the amount of time during which an application for asylum status could be processed, then a provision in terms of s 9
(4)of the 1996 Act, itself unlimited as to its time span, could be permissible. However, there is no such limitation on the length of time that the asylum process can take. That must then be taken as the background against which s 9
(4)of the 1996 Act is to be assessed. I cannot accept that if a right is in principle available, that it is an appropriate and permissible differentiation between citizens and non-citizens, and in particular between citizens and asylum seekers, to remove the right for all time from asylum seekers.”
  1. The applicant does not make a case based on breach of constitutional rights in the case before me but invokes the analysis of O’Donnell J in NHV by analogy.
  2. Counsel for the applicant relied, for his EU law case, on the fact that Advocate General de la Tour, in his opinion in KS v IPAT (Joined Cases C-322/19 and C-385/19), delivered 3 September 2020, also located the right to work contained in Article 15 of the Directive in the right to dignity of the person and the need to promote personal self-sufficiency.
  3. The applicant relied on the following paragraphs of Advocate General de la Tour’s opinion (paras 80 to 83): 8
  4. Furthermore, the reception conditions laid down in Directive 2013/33 seek to meet the applicant’s other needs [i.e. needs other than housing, food, clothing and a daily expenses allowance] while he or she is staying on the territory of the host Member State for a potentially prolonged period of time. Although those conditions are not intended to meet the applicant’s vital needs, they are nevertheless aimed at ensuring respect for fundamental rights enshrined in the Charter, such as family unity (Article 7 of the Charter and Article 12 of Directive 2013/33), the protection of the child (Article 24 of the Charter and Article 23 of Directive 2013/33), the right to education and vocational training (Article 14 of the Charter and Articles 14 and 16 of Directive 2013/33), access to health care (Article 35 of the Charter and Articles 13 and 19 of Directive 2013/33) and the right to engage in work (Article 15 of the Charter and Article 15 of Directive 2013/33). Like the schooling of minors, access to the labour market must therefore serve to meet an objective need of the applicant during his or her stay on the territory of the host Member State. 81.Member States cannot therefore deprive an applicant of that reception condition without running the risk of disregarding the objectives pursued by Directive 2013/33 and the fundamental rights which he or she derives from the Charter. 82.In the first place, recitals 11 and 23 of Directive 2013/33 clearly express the EU legislature’s intention to ensure that the applicant has a dignified standard of living during his or her stay in the host Member State and to promote his or her selfsufficiency. 83.The right to work, as enshrined in numerous international and regional human rights instruments, plays a role not only in the personal development of the individual and in his or her social and economic integration into society, but also in preserving his or her dignity.”
  5. Advocate General de la Tour then (at para 84 of his opinion) referred to various international materials that referenced the right to work as being connected to a person’s dignity, including para 20 of the judgment of O’Donnell J in NHV as set out above, stating that “The Supreme Court held that, by imposing an absolute prohibition on employment, with no 9 temporal limit on the procedure for examining an application for international protection, such legislation would cause damage to the individual, which is what the Constitution seeks to guard against.”
  6. Article 15 of the Charter of Fundamental Rights of the European Union (“the Charter”), as distinct from Article 15 of the Directive, also arose for discussion in the arguments before me. Article 15 of the Charter is headed “Freedom to choose an occupation and right to engage in work”. It provides that: “
  7. Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.
  8. Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State
  9. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.”
  10. While the applicant accepted that Article 15 of the Charter does not of itself create a right in a non-EU national to labour market access, he contended that it was part of the broader picture insofar as it acknowledged the importance of the right to engage in work.
  11. The applicant contends that the Regulations fail to properly transpose the right he says has been created by Article 15
(2)of the Directive to provide him with labour market access after a period of delay in processing an appeal to IPAT and he seeks a declaration that there has been a failure to so transpose. Alternatively, the applicant seeks a reference to the CJEU under Article 267 on the question of the proper interpretation of Article 15
(2)and, if the court believes it appropriate, a reference to the CJEU on the question as to whether Article 15, in limiting the right to labour market access only to those who have suffered a delay in receiving first instance decisions, notwithstanding any undue delay at appellate stage, is in breach of the applicant's rights to work, dignity and equality as guaranteed by the Charter. 10
  1. The applicant did not pursue a pleaded case that the refusal to grant him labour market access was a breach of his rights under the Constitution or the ECHR. He confines his case to such refusal being a breach of his rights to work, dignity and equality under the Charter.
  2. The Minister, for his part, contends that the applicant's asserted right involves an overly-strained reading of Article 15; finds no support in any of the cases which have considered Article 15 (including LK, KS and Havvitt); has not been clearly or properly defined on its own terms (e.g. what specific length of a delay in the processing of an appeal must elapse before the right arises?) and is contrary to any sensible interpretation of Article 15
(2), which clearly relates to the conditioning by Member States in accordance with national law of the limited right of labour market access provided for in Article 15
(1). Discussion Article 15 of the Charter of no avail to applicant
  1. Before addressing the question of the proper interpretation of Article 15 of the Directive, it is useful to briefly address Article 15 of the Charter.
  2. The applicant did not ultimately advance his case as to the proper interpretation of Article 15 of the Directive by reference to Article 15 of the Charter, and sensibly so. Despite the very broad terms of Article 15
(1)of the Charter, the terms of Article 15
(3)of the Charter make clear that the entitlement to working conditions equivalent to those of citizens of the EU is only available to nationals of third countries who are authorised to work in a Member State territory. As Hogan J noted in his judgment in the Court of Appeal in NHV (in which he dissented from the majority on the principal question of the constitutional right to seek work, his position on that question being in substance upheld by the Supreme Court) "applicants must be granted ‘effective access’ to the labour market, but the Member States retain the right to determine the conditions upon which access would be permitted" (at para. 70). As Hogan J stated at paras 78 to 81 of his judgment in the Court of Appeal in NHV: “[78] In any event, I do not think that there is anything in article 15 in the Charter which assists the applicant, the apparently broad language of article 15.1 notwithstanding. Counsel for the applicant urged that the language of article 15.1 of the Charter should 11 be regarded as having conferred the right to work on all (“[e]veryone has the right to engage in work”) who happened to be within the territory of the European Union. This guarantee must, however, be seen in the context of the rest of article
  1. Article 15.2 then deals with the right of citizens of the European Union to seek employment and to work in any member state. [79] Critically, however, article 15.3 of the Charter deals expressly with the rights of third country nationals:“Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union” (emphasis added). [80] It is quite clear that the general words of article 15.1 are substantially qualified by this specific and particular provision which is addressed to the position of third country nationals such as the applicant. Such third country nationals must accordingly be authorised to work. The natural inference from this specific provision of article 15.3 is that third country nationals have no other rights other than those specified in this provision. [81] In effect, therefore, all that article 15.3 provides is that third country nationals who are authorised to work – impliedly by one of the member states – are entitled to work under working conditions equivalent to those of citizens of the Union. But since, of course, the applicant is not in fact authorised to work in the territories of the member states – whether in this State or in another member state – it follows that article 15.3 cannot assist him.”
  2. Hogan J went on (at paras 82 to 84) to note that Hickinbottom J, in the English High Court, arrived at the same conclusion as regards the proper interpretation of Article 15 of the Charter in R (On the application of Rostami) v Secretary of State for the Home Department [2013] EWHC 1494 (Admin), [2014] IN.A.R.
  3. There, Hickinbottom J concluded that "It is plain that, on the face of the wording of Article 15, read as a whole, it does not confer a discrete right to work on non-EU nationals who happen to be in the EU at any particular time, including asylum seekers" (at para. 55 of the judgment of Hickinbottom J.). 12
  4. Notably, Recital 35 of the Directive, in setting out the Charter rights which the Directive seeks to respect, does not reference Article 15 of the Charter.
  5. I conclude therefore that it is manifest that the right contended for by the applicant cannot be derived from Article 15 of the Charter, nor can Article 15 of the Charter be prayed in aid of the applicant’s contended for interpretation of Article 15 of the Directive. Proper interpretation of Article 15 of the Directive
  6. For the reasons I set out below, in my view, any sensible reading of the provisions of Article 15 of the Directive in context leads to the inexorable conclusion that the only substantive right to labour market access created by Article 15 of the Directive is that contained in Article 15
(1)of the Directive. The right of labour market access in Article 15
(1)is expressly linked to a delay of nine months or longer in taking a first instance decision on an international protection application, where the delay cannot be attributed to the applicant. That is the sole right of access to the labour market for international protection applicants contained in the article; no right is created for labour market access in the event of a delay in taking an appeal decision. 41. Article 15
(2)then deals with the conditions for granting the right of access set out in Article 15
(1), as its wording makes clear; the first sentence of article 15
(2)provides that “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.” (emphasis supplied). 42. The fact that the term "applicant" is defined in the Directive as a person in respect of whom a final decision has yet been taken on their application for international protection does not support the view that Article 15
(2)should be read as applying to all such applicants and thereby conferring some separate, free-standing and unqualified right of access to the labour market on each and every applicant for international protection. Rather, in my view, it is clear that the “applicants” being referred to in Article 15
(2), first sentence, are those applicants specified in Article 15
(1)i.e. those applicants who have been waiting more than 9 months for 13 a first instance decision on an international protection application where the delay in taking the first instance decision cannot be attributed to the applicant. 43. The clause in the first sentence of Article 15
(2)which states “while ensuring that applicants have effective access to the labour market”, read in light of the rest of Article 15
(2)and the article as a whole, is clearly directed towards ensuring that the right of access to the labour market for the applicants who qualify for such access under Article 15
(1)is not emptied of its substance through the imposition of conditions i.e. that there is effective access to the labour market for those entitled by virtue of Article 15
(1)to such access. It is not a clause which creates a separate, free-standing right of labour market access. 44. The terms of the second paragraph of Article 15
(2)reinforce the view that Article 15
(2)is concerned with conferring member states with discretion as to how they will condition the labour market access right provided for in Article 15
(1). It will be recalled that this paragraph provides that “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.” Again, the terms of this paragraph are plainly directed to the conditioning of the right of labour market access created for the limited category of international protection applicants falling within Article 15
(1); such category of persons may be legitimately made to rank behind the other specified categories of persons set out in Article 15
(2)second paragraph if justifiable on labour market policy grounds. 45. The terms of Article 15
(3)reinforce the correct interpretation of Article 15 as a whole as being confined to those international protection applicants who have experienced delays of in excess of nine months (or, six months, in the case of the Regulations) in first instance decisions. It provides that “access to the labour market shall not be withdrawn during appeals processes 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” i.e. it addresses in terms what happens when the delayed first instance decision-making process ripens into a negative first instance decision and there is an appeal against that decision. The terms of this provision only make sense where the right to labour market access which has been created is a right linked to first instance decision delay. If the article also created a separate right of access to the labour market in the event of undue delay at appellate stage, this provision would need to have been cast in very different terms. 14 46. In this regard, it is of note that the right not to have the limited right created by Article 15
(1)withdrawn is itself limited to circumstances where an appeal by an applicant against a negative first instance decision has suspensive effect. This formulation is important because it is clear from the terms of the Procedures Directive (Recast) (Directive 2013/32/EU) (“the Procedures Directive”), which was implemented at the same time as the Directive as part of the same package of directives, that the right to remain in a Member State pending the examination of an international protection application, as a matter of EU law, is only a right to be allowed to remain in the member state until the determining authority has made a decision at first instance in respect of the international protection application (see Article 9
(1)Procedures Directive). Accordingly, there is no right to remain in a Member State as a matter of EU law after one has received a negative first instance decision on an international protection application. However, for the applicant’s interpretation of Article 15
(2)to be correct, notwithstanding that an applicant would not be entitled as a matter of EU right to remain in a member state after a negative first instance decision, such applicant would nonetheless be entitled to work in that member state pending the processing of (an unduly delayed) appeal. This interpretation simply flies in the face of the statutory scheme set up by the EU through the combined terms of the two directives.
  1. Quite apart from its lack of support in the wording or context of Article 15 itself, the applicant's case also suffers from the problem that it is overly generalised and vague on its own terms and raises questions simply not answered by the terms of Article
  2. If all international protection applicants who experience undue delays at appeal stage have a right of access to the labour market until determination of their appeal against a negative first instance decision, when does that right arise? How much of a delay in the processing of the appeal is required? Is delay at first instance decision level to be reckoned along with appeal level delay in determining whether and when the right arises? There is simply no wording in Article 15 which would explain how and when the asserted right would arise: in contrast to Article 15
(1), no period of delay is anywhere specified as to when the asserted right would arise. The applicant says that it should be a matter for discretion of the Member State. But how are the terms of such a discretion to be regulated? Where in the terms of Article 15
(2)or otherwise are the terms for exercise of such a discretion to be found? 48. It happens that Ireland has afforded a more generous right than is provided for by the Procedures Directive, by virtue of s. 16 of the International Protection Act 2015, which allows 15 international protection applicants to remain in the State until the conclusion of any appeal against such a negative first instance decision. However, the question of the proper interpretation of Article 15 of the Directive as a matter of EU law cannot be viewed through the prism of Irish domestic law; one has to look, rather, at the relevant EU law provisions. It seems to me that Article 15 of the Directive, read in context with the Procedures Directive, which were both implemented at the same time and as part of the same package of EU measures on 26 June 2013, explains why the right set out in Article 15
(1)is confined to a delay in first instance decision-making. If a separate right to labour market access had been created by Article 15 of the Directive to cover a situation where there was undue delay in dealing with an appeal, that would need to have been expressly provided for and could only have applied, as a result of the terms of Article 9 of the Procedures Directive, in those Member States where an appeal against a negative decision had, at the option of that Member State but not as an EU law obligation, had suspensive effect. Given that the Receptions Conditions Directive (i.e. the Directive) and the Procedures Directive are harmonising measures aimed at setting down minimum standards across the EU, it is not surprising that no EU-wide right to labour market access for international protection applicants was provided for applicants who experienced delays at appeal stage given that there is no EU right for such applicants to remain in a member state (and by extension, the EU territory) pending such appeals. 49. The EU clearly made a policy choice to limit labour market access to international applicants who experienced undue delay at first instance decision-making level, consistent with its policy choice to confine the EU law entitlement to remain in a member state only until the end of the decision-making process leading to a first instance decision and not beyond that to appeal stage. In my view, this Court would be improperly involved in seeking to rewrite Article 15 of the Directive if it were to interpret Article 15
(2)as creating a separate right of access to the labour market after an unspecified period of lapse of time in dealing with an appeal from a negative first instance decision. Such an interpretation would fly in the face of the structure, content and context of Articles 15
(1),
(2), and
(3)of the Directive, particularly when read against the backdrop of the terms of the Procedures Directive. Such an interpretation would create a right of access to the labour market for non-EU nationals who had failed in their international protection applications at first instance and who may have been removed from the EU in certain member states as a result; this cannot have been intended given the terms of the two directives as discussed above. 16 50. I do not see how a general appeal to the fundamental right to work or to have access to the labour market or to the general right of all persons to human dignity under Article 1 of the Charter can yield the interpretation advanced on behalf of the applicant. The recital most relevant to the terms of Article 15 of the Directive is Recital 23 which references the need to provide “clear rules” on applicants’ access to the labour market "in order to promote the selfsufficiency of applicants and to limit wide discrepancies between Member States". The interpretation of Article 15
(2)advanced on behalf of the applicant would subvert this goal by a fortiori leading to wide discrepancies between Member States (i.e. between those where appeals against first instance international protection applications have suspensive effect and those which do not) and would purport to create an EU law right which could only be exercised in certain of the Member States, i.e. those Member States which had optionally, and not as an requirement of EU law, provided for suspensive effect on the right to remain in respect of appeals against negative first instance international protection applications.
  1. The applicant complains that the terms of Article 15 of the Directive as matters stand, and as I have interpreted them, leads to anomalies and unfairness, giving the example of two international protection applicants who apply for protection in Ireland on the same dates, where one of them is the subject of a first instance decision within, say, five months from the date of application and the other is the subject of a decision some six weeks later, after 6 and a half months; where both have their first instance applications rejected, and where both are waiting, say, two years each for a decision on appeal. In this example the first applicant is not entitled to labour market access for the period from their application to final determination on appeal, but the second will have labour market access throughout this period. It is said that this is an inequality and an unjustifiable infringement of the rights to dignity of the second applicant in this example.
  2. It is of course the case that any system which draws lines between categories of persons on the grounds of time limits will create potentially unfair situations, particularly at the margins of those time limits. That is inherent in any system which allocates rights or entitlements on the basis of cut-off dates. However, in my view, any perceived resulting unfairness reflects a policy choice which it was legitimately open to the EU legislature to make, namely that labour market access should be given only where there are delays in first instance decision-making relating to applications for international protection and not also where there have been timely first instance decisions but unjustified delays on appeal. Given that EU law creates no 17 entitlement to remain in a Member State after a negative first instance decision, notwithstanding an EU law right of appeal, that seems to me to have been a policy choice which it was not only open to the EU legislature to make but which ensured that the overall policy approach of the EU in this area was consistent and coherent. Of course, it must be borne in mind that the Directive and the Procedures Directive set down minimum standards for harmonisation. There is nothing to prevent Ireland (or any other Member State) deciding to legislate for labour market access in situations where there has been a timely first instance decision but an undue delay on appeal. However, just because such a policy choice would be open to Ireland to make does not mean that the EU legislative choice embodied in Article 15 of the Directive is invalid or has not been validly transposed into the Regulations.
  3. It is true, insofar as it goes, that the question raised by the applicant is a novel one which has not been considered in terms in the EU case law on Article 15 to date. The Minister contended that Havvitt and KS both proceeded on the basis that the relevant and sole right contained in Article 15 is contained in Article 15
(1). 54. As noted earlier, KS concerned the question of the application of Article 15 to an applicant for an international protection who had been denied access to the labour market on the sole ground that a transfer decision had been taken in respect of him under the Dublin III Regulation. The CJEU held (at para. 68) that "the obligation on the Member State concerned, pursuant to Article 15
(1)of Directive 2013/33, to grant the applicant for international protection access to the labour market ceases only when that applicant is finally transferred to the requested Member State". The CJEU (at para. 69) made reference to Advocate General de la Tour’s observation in point 85 of his opinion that "Work clearly contributes to the preservation of the applicant's dignity, since the income from employment enables him or her not only to provide for his or her own needs, but also to obtain housing outside the reception facilities in which he or she can, where necessary, accommodate his or her family". The CJEU also, at para. 70, referred to Recital 23 of the Directive and its reference to the promotion of the self-sufficiency of applicants for international protection. It noted that access to the labour market is beneficial both to applicants for international protection and to the host Member State and that preventing applicants for international protection from gaining access to the labour market is contrary to that objective, in addition to placing costs on the Member State concerned as a result of the payment of additional social benefits (at para. 71). 18 55. While I accept that that decision did not involve the CJEU addressing the terms of Article 15
(2), or the case sought to be made in the proceedings before me, it is nonetheless of note that the CJEU was focused on the right set out in Article 15
(1)of the Directive and did not suggest that there was any separate or broader, free-standing right of access contained elsewhere within Article
  2. Similarly, in Havvitt, the CJEU addressed the scope of that part of the terms of Article 15
(1)which references delay in taking a first instance decision in relation to an international protection application not being attributed to the applicant and the question, inter alia, of whether the Regulations were incompatible with the Directive in allowing reliance on delay attributable in part to the applicant in calculating the relevant period of first instance delay before an entitlement to labour market access could arise. Again, it is fair to say that the CJEU’s analysis in this case proceeds on the basis that the only right of labour market access contained in Article 15 is contained in Article 15
(1). 57. I accept the applicant's contention that those cases did not address the question sought to be raised by the applicant in the case before me as to the proper meaning of Article 15
(2). Accordingly, while these authorities are of some assistance in setting out the broad approach of the CJEU to the interpretation of Article 15, they do not significantly advance determination of the question which I am called upon to decide in this case. 58. In my view, the observations of Advocate General de la Tour in his Opinion in KS relied upon by counsel for the applicant (as set out earlier in this judgment) were addressed to the context in which he made them, namely the question of whether an applicant for international protection was entitled to invoke the rights he otherwise had under Article 15
(1)in circumstances where he was the subject of a transfer decision under the Dublin III Regulation but still within the international protection system. It might be said that his observations could provide a theoretical basis for a broader interpretation of Article 15, consistent with ensuring promotion of the right to dignity and self-sufficiency of international protection applicants, if the wording of Article 15 as a whole, or Article 15
(2)in particular, provided any reasonable support for the interpretation advanced by the applicant. However for the reasons I have outlined, I do not see that the ordinary or teleological meaning of the terms of Article 15 of the Directive, particularly when read in the context of Article 9 of the Procedures Directive, create any basis at all for the existence of the self-standing right claimed by the applicant. 19 59. Accordingly, in my view, the right to labour market access created by Article 15 of the Directive is that created by Article 15
(1)alone; namely that the right to labour market access for international protection applicants arises only where there has been a delay of 9 months or more (not attributable to the applicant) (6 months per the Regulations) in taking a first-instance decision in relation to their international protection application. There is no separate, freestanding or more expansive right created by Article 15
(2)in relation to international protection applicants who get timely first instance decisions but who experience undue delays at appeal stage. A general appeal to the terms of Articles 1, 20 or 21, or Article 15, of the Charter or to the fairness of the situation does not operate to create such a right when the terms of Article 15 are clear in not creating such a right.
  1. I should say for completeness that counsel brought to my attention the decision of (Barry) O'Donnell J in AM v The Minister for Enterprise, Trade and Employment [2024] IEHC
  2. In his judgment in that case, O’Donnell J considered the lawfulness of a prohibition on non-EU nationals applying for positions in the public sector (the applicant there was a pharmacist who wished to seek employment in an Irish hospital and qualified for labour market access under Article 15
(1)). O’Donnell J considered that the relevant exclusion provisions were legitimately within the scope of the discretion given to the State by Article 15
(2)in relation to conditions for granting access to the labour market for those international protection applicants who met the criteria in Article 15
(1). An appeal against that judgment has been heard by the Supreme Court and judgment is awaited. Accordingly, I do not propose to engage in an analysis of that decision save to observe that the approach taken by O’Donnell J to the question before him in that case chimes with the view I have taken on the proper role of Article 15
(2), namely that it deals with Member States’ discretion in relation to conditioning labour market access otherwise made available by virtue of the right created in Article 15
(1).
  1. In the circumstances, for the reasons set out above, the applicant did not have a right to labour market access, whether as a matter of EU law, or pursuant to the Regulations. In my view, there is no sufficient doubt about this matter to necessitate a reference to the CJEU under Article 267 whether on the question of the proper interpretation of Article 15, or on the question of that article as I have interpreted it being invalid as a matter of EU law. It was clearly within the competence of the EU legislature to confine the creation of labour market access rights in the way in which they have sought to do in Article
  2. I do not see that there is any serious 20 question of invalidity of Article 15 as a matter of EU law, particularly in light of the terms of Article 15 of the Charter and the wide latitude given to Member States in relation to regulating access to the labour market in respect of non-EU nationals.
  3. Accordingly, in my view, the Minister and IPAT were correct to take the view that the applicant was not entitled to the labour market access he contended for arising from alleged delays in processing his appeal against his negative first instance international protection application. Conclusion
  4. For the reasons set out above, I refuse the applicant the reliefs he seeks. 21

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AI explanation based on the official legal text. Indicative, not a substitute for legal advice.