Ireland Supreme Court refers questions to CJEU on meaning of 'delay' and 'attributed in part' in international protection access to work rules.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2023:000096

[2024] IESC 42

Dunne J. Charleton J. Woulfe J. Hogan J. Murray J.

Between/

L.K.

Respondent

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER

FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL

Appellants

To: The President and Members of the Court of Justice of the European Union Order for Reference of the Supreme Court of the 23rd day of October 2024

Introduction

1. The Supreme Court of Ireland has decided to refer to the Court of Justice, pursuant to Article 267 of the Treaty on the Functioning of the European Union, questions arising in respect of the correct interpretation and application of the concept of “delay” in Article 15(1) of Directive 2013/33/EU of the European Parliament and of the Council of 26th June, 2013 laying down standards for the reception of applicants for international protection (“the 2013 Directive”), to which effect is given by Regulation 11(4)(b) of the European Communities (Reception Conditions) Regulations 2018, S.I. No. 230/2018 (“the 2018 Regulations”).

2. Article 15 of the 2013 Directive requires member states to establish standards regulating international protection applicants’ access to the labour market. Paragraph (1) thereof obliges States to: “[E]nsure that applicants have access to the labour market no later than nine 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.”

3. Regulation 11(3) of the 2018 Regulations enables an international protection applicant to apply for a labour market access permission eight months after an international protection application has been made. Regulation 11(4) further provides: “The Minister may, on receipt of an application made in accordance with paragraph (3), grant a permission to the applicant where satisfied that –

(a) subject to paragraph (6), a period of 9 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.

4. The meaning of ‘delay’ in Article 15, the use of the phrase “attributed in part” in Regulation 11(4)(b) of the 2018 Regulations and whether the use of that phrase means that the 2018 Regulations do not properly transpose the Directive are matters which are central to this reference, and raise questions as to the appropriate test to be applied when considering whether delay on the part of an applicant for international protection can be attributed to him or her so as to entitle the Minister to refuse the applicant a labour market access permission.

Background

5. On 2nd September, 2019, L.K. (“the respondent”) applied for international protection in the State on the basis that he would face a real risk of suffering serious harm if he was returned to Georgia, his home state. A preliminary Section 15 interview was scheduled with the International Protection Office (“IPO”) for 16th September, 2019. The respondent did not receive written notification of this date and was never contacted personally in respect of his appointment by the IPO, the International Protection Accommodation Service, or the hotel accommodation at which he was residing. The respondent contacted his social worker, who arranged an interview for 12th December, 2019. He received an international protection questionnaire (“IPO 2 questionnaire”) in Georgian to complete which was to be returned by 6th January, 2020.

6. Four extensions of time were ultimately granted by the IPO until 24th August, 2020 to facilitate the submission of the respondent’s IPO 2 questionnaire. An extension was first granted on 7th January, 2020 until 5th February, 2020, in circumstances where the applicant did not have a solicitor to provide legal advice. On 28th January, 2020, the respondent was referred to a solicitor by the Legal Aid Board and further extensions were sought for the purposes of taking instructions, which were granted on 5th February, 2020 and 20th February, 2020. In circumstances where the respondent did not speak English, the services of a Georgian translator were required to complete the IPO 2 questionnaire. The third request for an extension of time was initially refused by the IPO on 4th March, 2020, but subsequently granted on 16th March, 2020 until 1st May, 2020 due to the advent of the Covid-19 pandemic and the related difficulties of arranging in-person translation services. This extension was provided to all applicants for international protection. A fourth, and final, extension of time was sought by the respondent’s solicitor on 17th July, 2020 and this was granted by the IPO until 24th August, 2020. The respondent attended an in-person appointment with his solicitor in the presence of a translator on 5th August, 2020, and the questionnaire was submitted to the IPO on 25th August, 2020.

7. Separately, the respondent sought to apply for a labour market access permission pursuant to Regulation 11(3) of the 2018 Regulations. On 20th June, 2020, the respondent’s solicitor submitted an application to the Labour Market Access Unit (“LMAU”) for a workforce permit, as over eight months had expired since his international protection application was first made. This was refused by a letter dated 28th August, 2020 for the following reason: “The delay in issuance of a first instance

decision is attributable to you”. It was further noted that the respondent had not returned his IPO 2 questionnaire despite same being issued on 12th December, 2019. Accordingly, the LMAU concluded that the respondent did not meet the conditions for the granting of a labour market access permission under Regulation 11(4).

8. On 11th September, 2020, the respondent’s solicitor requested a review of the first instance decision pursuant to Regulation 20(1)(e) of the 2018 Regulations as a matter of urgency. In a decision dated 2nd December, 2020, the Review Officer affirmed the

decision of the LMAU, taking the view that the delay in the issuance of the respondent’s first instance decision could be attributed to his actions by reason of failing to attend his Section 15 interview and return the IPO 2 questionnaire within a reasonable timeframe.

9. The respondent’s solicitor submitted an appeal to the International Protection Appeals Tribunal (“IPAT”) pursuant to Regulation 21 of the 2018 Regulations, which was refused in a decision dated 3rd March, 2021. Therein, the Designated Member of IPAT noted that she was obliged to apply the wording of Article 15(1) of the 2013 Directive over the Irish transposing Regulations, in line with the Court of Justice of the European Union (“CJEU”) judgment in Minister for Justice & Equality & Others v. Workplace Relations Commission & Ors (Case C-378/17). In examining the issue of delay, the Designated Member relied on the recent judgment of the CJEU in KS and MHK v. International Protection Appeals Tribunal & Ors and RAT and DS v. Minister for Justice and Equality (Joined Cases C-322/19 and C-385/19) (“KS”), in which it was held that delay in the processing of an application for international protection within the meaning of Article 15(1) may be attributed to the applicant where he or she has failed to cooperate with the competent national authorities.

10. The respondent was ultimately issued a certificate of permission by the LMAU by letter dated 8th June, 2022, and since 6th February, 2023, has taken up a full-time job as a construction labourer.

11. The respondent sought leave to apply for judicial review to quash the decision of the IPAT refusing the respondent labour market access, in addition to seeking a declaration against the second to fourth named appellants and, in particular, Ireland, that these appellants failed to adopt the measures necessary to transpose and/or implement Article 15(1) of the 2013 Directive and damages for same.

12. In a judgment of the High Court (Heslin J.) of 9th June 2022 ([2022] IEHC 441), the respondent was successful. It was held that the finding by IPAT that the delay in issuing a first instance decision could be attributed to the respondent and/or that he failed to cooperate in the processing of his application was unreasonable and irrational. It was also found by the trial judge that there was a “material difference” between the wording of Article 15(1) and that employed in Regulation 11(4)(b) of the 2018 Regulations, which amounted to a failure to properly transpose the former into domestic law. The matter was then appealed to this Court.

The Appeal to this Court

13. The parties identified three issues to be determined by this Court:

(i) Whether the concept of delay for the purposes of Article 15(1) of Directive 2013/33 encompasses only a delay that may be attributed wholly and exclusively to the applicant for international protection, or does it encompass any not insignificant delay that may be attributed to the applicant or that may be considered to constitute “non-cooperation” by the applicant?

(ii) Whether a national measure transposing the Directive that provides that a delay that is attributable in part to the applicant for international protection may be attributed to them entirely and preclude access to the labour market constitutes such a sufficiently serious breach of EU law such as to give rise to Francovich damages?

(iii) Whether this Court should, or is obliged, having regard particularly to the extant judgment of the CJEU interpreting Article 15(1) of Directive 2013/33/EU in Joined cases C-322/19 and C-385/19 KS & MHK v IPAT, to refer to the CJEU, pursuant to the third paragraph of Article 267 TFEU, a question(s) regarding the appropriate interpretation of Directive 2013/33/EU and especially the concept of “delay” under Article 15(1) thereof as regards decisions refusing access to the labour market.

14. For reasons which will become apparent, this Court has not considered the second of the issues identified by the parties.

The Arguments of the Parties

15. As a preliminary issue, the appellants contended that the High Court judge erred in finding that in substance, the Designated Member of IPAT applied the test featured in Regulation 11(4)(b) in her determination of the respondent’s culpability for delay, as opposed to that set out in Article 15(1) of the 2013 Directive. Further, it was submitted that the Designated Member applied the CJEU’s interpretation of ‘delay’ in KS to include that which results from a lack of cooperation by the applicant with the competent national authorities, and accordingly, based her findings on matters which were within the control of the respondent and his solicitor, notwithstanding the Covid-

19 restrictions and delays arising therefrom. The appellants therefore submitted that the issue as to whether the Directive had been correctly transposed into Irish law did not arise and the respondent’s claim ought to have been dismissed by the High Court in limine.

16. The respondent agreed with the High Court’s finding that the wording of the Directive, rather than the implementing provisions in the 2018 Regulations, was applied in substance by the Designated Member. It was submitted that the High Court judge conducted a detailed and comprehensive analysis of the events preceding the submission of the respondent’s IPO questionnaire and correctly identified the periods of delay that could not be attributed to him, including the delay on the part of the State in processing his claim, the time reasonably required to instruct a solicitor with the assistance of a translator, and the serious disruption engendered by the Covid-19 pandemic.

Failure to Correctly Transpose Directive 2013/33/EU

17. The appellants submitted that the High Court judge erred in finding that the State had failed to correctly transpose and/or implement Article 15(1) of the 2013 Directive by way of Regulation 11(4)(b). First, the appellants contended that the trial judge erred in law by failing to apply the requisite EU rules on statutory interpretation, which bound him to consider the aims, purposes, context and origin of Article 15(1). The appellants argued that the trial judge ought to have placed reliance on recitals 11, 23 and 31 of the 2013 Directive, which provide that the objective thereof is to establish standards for the reception of applicants and their access to the labour market; an aim which the appellants contend falls short of obliging member states to grant an automatic right of access. Further, it was submitted that Article 15(2) of the 2013 Directive provides that member states shall assure “effective” access to the labour market only, and it is for the respondent to demonstrate why the system in place in Ireland is “impossible in practice or excessively difficult” to enforce (Opinion of Advocate General Richard de la Tour in KS, para. 74).

18. Second, the appellants submitted that it was within the margin of discretion afforded to the State to transpose Article 15(1) by inserting the words “attributed in part” into Regulation 11(4)(b). The appellants contended that requiring an applicant to seek legal advice promptly and file their international protection application “as soon as reasonably practicable” (see s. 27(1) of the International Protection Act 2015) are appropriate “conditions for granting access to the labour market” under Article 15(2) of the 2013 Directive. Further, the appellants contended that the trial judge’s finding that the wording contained in Regulation 11(4)(b) exceeded the State’s discretionary limits is inconsistent with the finding in KS that an applicant’s cooperation is the touchstone for determining whether delay can be attributed to him or her. The CJEU therefore does not exclude other considerations aside from the conduct of an applicant as contributing the overall ‘delay’ in the process. Third, the appellants submitted that before the trial judge addressed the issue of potential State liability for incorrect transposition under EU law, he ought to have determined (i) whether it was possible to interpret Regulation 11(4) in conformity with Article 15(1) of the Directive (‘sympathetic interpretation’), and if not, (ii) whether Article 15(1) has direct effect in the State, citing, inter alia the judgments of the CJEU in Farrell v. Whitty (Case C- 356/05) and Poplawski II (Case C-573/17).

19. The respondent argued that the High Court was correct in finding that the State had failed to correctly transpose the 2013 Directive, notwithstanding the degree of discretion conferred by Article 15(2) on each member state. The respondent rejected the appellants’ contention that Regulation 11(4)(b) constitutes a faithful transposition of Article 15(1) and submitted that the trial judge had adequate regard to the purpose of Article 15(1), which is to ensure that international protection applicants “have effective access to the labour market” (Article 15(2)); a reception condition which was recognised by the CJEU as a “right” conferred by the 2013 Directive in KS and is expressed as a “facet of human dignity” in Article 20(5) and recitals 11, 25, 35 and Article 1 of the EU Charter of Fundamental Rights (“the Charter”).

20. Further, the respondent submitted that the trial judge was correct in finding that the insertion of the words, “attributed in part” fell outside the margin of discretion afforded to the State, noting as he did at para. 165 of his judgment that the additional phrase had the effect of denying an applicant labour market access if any insignificant delay could be attributed to him. The respondent accordingly disputed the appellants’ interpretation of Article 15(1) which entitles a member state to deny access to the labour market if delay attributable to an applicant amounts to significant delay, notwithstanding other extraneous factors. It was submitted that this approach cannot justify the actual words employed in the transposing Regulations.

The Decision to Refer

21. This appeal raises an important issue as to what is comprised in the meaning of “delay” as that word is used in Article 15(1) of the 2013 Directive. This Court is of the view that the concept of delay is a matter which requires further elucidation, in circumstances where that concept has never been fully considered by the CJEU.

22. In order to understand the issues that arise, it would be helpful to set out some details of the timeline involved in this case.

23. The first period of delay involves the period between the respondent’s initial application on 2nd September, 2019 for international protection up to 12th December, 2019, when he attended at the IPO and was furnished with a copy of the IPO 2 questionnaire which he was obliged to complete for the purpose of enabling his application to be considered. This Court agreed with the trial judge that the delay during this period is not something that can be attributed, in any shape or form, to the respondent, given that he was not personally notified of a date for an earlier appointment, and the interview which occurred on 12th December, 2019 was arranged at his behest. That delay can only be attributed to the appellants. The questionnaire was to be returned by 6th January, 2020. In circumstances where he was first referred to a solicitor on 28th January, 2020 by the Legal Aid Board, it would appear that there can be no question of delay being attributed to the respondent in respect of a reasonable period of time after 28th January, 2020 for the purpose of completing the form. Indeed, extensions of time were granted to facilitate this. Nevertheless, by 4th March, despite the fact that extensions had been given to the respondent on 5th February and 20th February, 2020, the questionnaire was still not completed. It was only by reason of the onset of Covid-19, and the restrictions associated with that, that a further extension was granted to all applicants for international protection on 16th March, 2020 which was to avail the respondent until 1st May, 2020. The questionnaire was not returned by then and it is noteworthy that it was not until 17th July, 2020 that a further extension was sought. The fact that the IPO had been prepared to grant a number of extensions of time in which to furnish the questionnaire is irrelevant. The application could not be processed when the respondent had failed to comply with his obligations to provide the necessary information. The IPO was entitled to give further extensions as, without the completed questionnaire, the application for international protection could not be considered.

24. This Court is of the view that there were a number of instances over the nine months from when the respondent first applied for international protection where there was significant delay on his part in providing the questionnaire required by the IPO for the purposes of processing his application. Even allowing for the entirely unforeseeable circumstances of the Covid-19 pandemic, the delay on the part of the respondent in this case is difficult to understand and, in truth, there is no satisfactory explanation for it. But for the Covid-19 pandemic, the IPO would not have been willing to give a further extension of time to the respondent to complete the questionnaire. It should also be noted that the respondent made his application for labour market access on or about 20th June, 2020. That was at a time when the necessary information had not been provided by him to the IPO for the processing of his application for international protection. Had the questionnaire been returned to the IPO in a timely manner, there is nothing to suggest that the respondent’s application could not have been processed within the nine-month period commencing on 2nd September, 2019.

25. This Court is mindful of the decision of the CJEU in KS. The CJEU noted at para. 74 as follows: “74. By the second question referred in Case C‑385/19, the International Protection Appeals Tribunal asks, in essence, what acts may constitute a delay attributable to the applicant for international protection within the meaning of Article 15(1) of Directive 2013/33.

75. It should be noted at the outset, as the Advocate General noted in point

99 et seq. of his Opinion, that Directive 2013/33 gives no guidance in that regard.”

26. Thus, it is clear that the Directive itself gives no guidance as to what acts constitute a delay attributable to an applicant for international protection.

27. The CJEU went on to say, at para. 76 to 80, as follows: “76. Accordingly, it is necessary to refer to the rules of common procedures for granting international protection established by Directive 2013/32, which, as stated in paragraph 60 above, must be taken into account in interpreting the provisions of Directive 2013/33.

77. It thus follows from Article 31(3) of Directive 2013/32 that a delay in the examination of his or her application for international protection is attributable to the applicant where that applicant fails to comply with his or her obligations under Article 13 of that directive. That provision provides that applicants have an obligation to cooperate with the competent authorities with a view to establishing their identity and other elements referred to in Article 4(2) of Directive 2011/95, namely their age, background, including that of relevant relatives, nationality (or nationalities), country (or countries) and place(s) of previous residence, previous asylum applications, travel routes, travel documents and the reasons for applying for international protection. The applicant’s obligation to cooperate means that he or she must supply, as far as possible, the required supporting documents and, where appropriate, the explanations and information requested (judgment of 14 September 2017, K., C‑18/16, EU:C:2017:680, paragraph 38).

78. Article 13 of Directive 2013/32 also allows Member States to impose upon applicants other obligations necessary for the processing of their application, inter alia, to require them to report to the competent authorities or to appear before them at a specified time and place and to inform the authorities of their current place of residence, and even provide that applicants may be searched or photographed or have their statements recorded.

79. It follows, in essence, from the foregoing considerations that a delay in the processing of an application for international protection may be attributed to the applicant where he or she has failed to cooperate with the competent national authorities. Bearing in mind the need for uniform interpretation and application of EU law, as recalled in paragraph 57 et seq. above, this interpretation is called for even where, as a result of a specific derogating act, in the present case Protocol No 21, Directive 2013/32 does not apply in the Member State concerned.

80. In the light of the foregoing considerations, the answer to the second question referred in Case C‑385/19 is that Article 15(1) of Directive 2013/33 must be interpreted as meaning that a delay in the adoption of a decision at first instance concerning an application for international protection which results from a lack of cooperation by the applicant for international protection with the competent authorities may be attributed to that applicant.”

28. The passage cited above makes it clear that an applicant for international protection has an obligation to cooperate with the competent authorities of a member state in the processing of their application. This includes providing relevant information as to their nationality, background, and so on. However, the CJEU observed that the Directive does not give any guidance as to what acts may constitute a delay attributable to an applicant. In this case, there has been a delay in processing the application for international protection. No application for international protection can be processed without the provision of information which the questionnaire referred to previously is designed to elicit. In this case, the questionnaire was not furnished until 25th August, 2020, almost 12 months after the respondent arrived in the country. The State cannot be faulted for the fact that the application for international protection had not been determined prior to that date. It should be recalled that when the respondent made his application for labour market access on or about 20th June, 2020, the necessary information had not been provided by him to the IPO for the processing of his application. On one view of the facts and circumstances in this case, it might be said that the delay in processing the application for international protection was entirely that of the respondent, in circumstances where the IPO simply could not process his application without him cooperating with the IPO, with a view to establishing the various matters referred to in Article 4(2) of Directive 2011/95/EU of the European Parliament and of the Council of 13th December, 2011.

29. However, some of the delay over the relevant period involved that which could not be attributed to the respondent, in particular, the period of time between September and December of 2019. It is also an essential part of any system for processing such claims that those seeking international protection be provided with assistance, including legal assistance and translation services where necessary, in order to assist them in complying with their obligations. In the course of these proceedings, evidence was given on behalf of the State as to the length of time it normally takes for the IPO 2 questionnaire to be submitted, being on average a period of approximately seven weeks. In this case, the application simply could not be processed because of the delay in furnishing the questionnaire. This Court is conscious of the fact that the onset of the Covid-19 pandemic disrupted the processing of such applications. However, some of the delay that has taken place in this case is simply inexplicable and can only be attributable to the respondent.

30. This begs the question: how are the various elements of delay in processing this application for international protection to be attributed? As was noted by the CJEU, the 2013 Directive itself gives no guidance as to what acts may constitute a delay attributable to an applicant for international protection. In considering what is meant by delay in Article 15(1), is it appropriate to consider the overall period of time and to assess the extent of the delay that can be attributed to the respondent himself, as opposed to any delay on the part of the State? Is it possible to say that, in circumstances where there is significant unexplained delay on the part of an applicant for international protection, that constitutes delay that can be “attributed to the applicant”, even though there has also been some delay on the part of the State itself? In other words, can part of the overall delay be "attributed to the applicant" for the purposes of the Directive, or must delay in processing the application be exclusively that of the applicant?

31. A further issue arises in relation to the transposition of the 2013 Directive by means of the 2018 Regulations. The Directive enables a person to have access to the labour market when a decision on their application has not been made within the period of nine months, and the delay in taking the decision “cannot be attributed” to the applicant, as opposed to the wording used in the 2018 Regulations: “cannot be attributed, or attributed in part, to the applicant” for international protection. This Court is of the view that part of the delay in this case cannot be attributed to the applicant, namely, the period between September, 2019, when he first made his application for international protection, and the date in December, 2019, when he attended at the IPO and was furnished with the questionnaire. However, this Court is also of the view that there was significant delay on the part of the respondent in completing the questionnaire and therefore, there was delay attributable to him. It is therefore necessary to consider: what is the effect of the phrase “attributed in part” in the 2018 Regulations? Does the inclusion of that phrase in the 2018 Regulations mean that the State has failed to properly transpose the 2013 Directive, given the margin of appreciation that the State enjoys in how it chooses to implement the Directive?

32. To what extent are EU rules on statutory interpretation relevant in considering the wording of Article 15(1) of the Directive and also its aim, purpose, context and origin (see HK v. Service fédéral des Pensions (Case C-45/22); Imperial Tobacco Bulgaria, (Case C-55/21), and NovaText GmbH v. Ruprecht-Karls-Universität Heidelberg (Case C-531/20)? The appellants placed reliance on a number of recitals in the Directive to support their arguments. In the first instance, reference was made to Recital 11, which provides as follows: “Standards for the reception of applicants that will suffice to ensure them a dignified standard of living and comparable living conditions in all Member States should be laid down.”

33. Reference was also made to Recital 23, which states: “In order to promote the self-sufficiency of applicants and to limit wide discrepancies between Member States, it is essential to provide clear rules on the applicants’ access to the labour market.”

34. The comments of Advocate General Richard de la Tour in KS, at para. 74, are also of relevance, where he observed as follows: “74. First, while Member States are entitled to introduce conditions other than those expressly mentioned in Article 15(1) of that directive, they must nevertheless ensure effective access to the labour market. In other words, in the absence of EU rules, the conditions determined by the Member States for access to that market must not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order. In that context, a national rule which seeks to deprive the applicant of that status on the ground that he or she is subject to a transfer procedure seems contrary to the principle laid down by the EU legislature in so far as it prevents the applicant from enjoying the rights associated with that status.

75. Secondly, while Member States may, for reasons relating to their employment policy, give priority to certain categories of persons, those persons must be EU citizens, nationals of the European Economic Area or legally resident third-country nationals. It follows from Article 15(2) of Directive 2013/33 that reasons relating to national employment policy do not justify drawing a distinction between applicants based on whether their application is to be examined by the host Member State or by the Member State which the competent national authorities have designated as responsible on the basis of the criteria laid down by Regulation No 604/2013.”

35. The preliminary view of this Court is that the use of the words “attributed in part” do not give rise to a conclusion that Ireland has not properly transposed the 2013 Directive given that, as was said by Advocate General Richard de la Tour, this Court is of the view that “the conditions … for access to that market must not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order”.

36. The view that the inclusion of the words “attributed in part” in the 2018 Regulations is not an improper transposition of the 2013 Directive is, however, predicated on the view that the word “delay” as used in the Directive should be understood as involving the assessment of the acts of delay on the part of an applicant, and a consideration of whether those acts are of such substance as to constitute delay which can be attributed to the applicant. Where the CJEU has not furnished guidelines as to what constitutes “delay”, is the correct approach to considering delay within the meaning of Article 15(1) to have regard to the acts of the applicant on the one hand and the State authorities on the other as to the various elements making up the delay, in coming to a decision on the application for international protection? Can acts of delay on the part of the State outweigh acts of delay on the part of an applicant? If so, how is that to be assessed? Further, have the 2018 Regulations properly transposed the Directive into Irish law in circumstances where it does not appear that the inclusion of the words “attributed in part” render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order?

37. In the circumstances, the opinion of the CJEU is sought pursuant to Article 267(3) TFEU in respect of the following questions as to the interpretation of the 2013 Directive and as to whether or not it has been properly transposed by means of the 2018 Regulations:

1. In K.S., the CJEU noted that Directive 2013/33/EU gives no guidance in relation to what acts may constitute a delay attributable to the applicant for international protection within the meaning of Article 15(1) of the Directive. In considering what acts may constitute a delay attributable to an applicant, is it appropriate to have regard to the fact that an applicant such as the respondent in this case provided no information at all (by way of response to the questionnaire) for more than the ninemonth period provided for under Article 15 of the Directive?

2. Does the concept of delay for the purposes of Article 15(1) of Directive 2013/33/EU encompass only a delay that may be attributed wholly and exclusively to the applicant for international protection, or does it encompass any not insignificant delay that may be attributed to the applicant or that may be considered to constitute “non-cooperation” by the applicant?

3. In circumstances where there is significant unexplained delay on the part of an applicant for international protection, and there has also been delay on the part of the State itself, together with delay due to external factors such as those arising from Covid-19, can part of the overall delay be "attributed to the applicant" for the purposes of Directive 2013/33/EU, or must any delay in processing the application be exclusively that of the applicant?

4. Does the inclusion of the phrase, “attributed in part” in Regulation 11(4)(b) of the European Communities (Reception Conditions) Regulations 2018, S.I. No. 230/2018 mean that Ireland has failed to properly transpose Directive 2013/33/EU, given the margin of appreciation that member states enjoy in how they choose to implement the Directive and in circumstances where it does not appear that the inclusion of this phrase renders impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order?