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Ireland, the Minister for Justice and the Attorney General, by M. Browne, Chief State Solicitor, C. Aherne, A. Burke and A. Joyce, acting as Agents, and by N.J. Travers, Senior Counsel, and P. Leonard, Barrister-at-Law,

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LK, by C. Power, Senior Counsel, H. Burgess, Barrister-at-Law, and G. Daly, Solicitor,

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the European Commission, by A. Azéma and M. Debieuvre, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Article 15(1) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96).

2

The request has been made in proceedings between, on the one hand, LK, an applicant for international protection, and, on the other, the International Protection Appeals Tribunal (Ireland), the Minister for Justice (Ireland), Ireland and the Attorney General (Ireland) concerning the lawfulness of the decision rejecting his application to have access to the labour market, on the ground that the delay in adopting a first instance decision on his application for international protection (‘the first instance decision’) was attributable to the applicant.

3

Article 6 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180 p. 60), entitled ‘Access to the procedure’, provides, in paragraph 4:

‘… an application for international protection shall be deemed to have been lodged once a form submitted by the applicant or, where provided for in national law, an official report, has reached the competent authorities of the Member State concerned.’

4

Article 3 of Directive 2013/33, entitled ‘Scope’, provides, in paragraph 1:

‘This Directive shall apply to all third-country nationals and stateless persons who make an application for international protection on the territory … of a Member State …’

5

Article 15 of that directive, entitled ‘Employment’, provides, in paragraph 1:

‘Member States shall ensure 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.’

6

The European Communities (Reception Conditions) Regulations 2018 (S.I. No 230/2018) (‘the 2018 Regulations’) transposed into Irish law the provisions of Directive 2013/33 with effect from 30 June 2018.

7

Regulation 11(3) and (4) of the 2018 Regulations, which implements Article 15(1) of Directive 2013/33, provides:

‘3.   An applicant may make an application for a permission, which application shall be –

…

4.   The Minister [for Justice and Equality (Ireland)] may, on receipt of an application made in accordance with paragraph (3), grant a permission [to access the labour market] to the applicant where satisfied that –

8

On 2 September, 2019, LK, a Georgian national, applied for international protection in Ireland on the basis that he faced a real risk of suffering serious harm if he was returned to his State of origin.

9

An interview with LK was scheduled by the International Protection Office (Ireland) (‘the IPO’) for 16 September 2019, but without LK being informed. He contacted his social worker, who arranged an interview with the IPO for 12 December 2019. During that interview he received an international protection questionnaire (‘the IPO 2 questionnaire’), drafted in Georgian, to complete and which was to be returned by 6 January 2020.

10

The IPO granted LK four extensions of time until 24 August 2020 to facilitate the submission of his response to the IPO 2 questionnaire. An initial extension of time was granted on 7 January 2020 until 5 February 2020, at a time when LK did not yet have a solicitor to assist him. A second series of extensions of time were requested by the solicitor appointed to take instructions, which were granted on 5 and 20 February 2020. Since LK does not speak English, the services of a Georgian translator were necessary in order for him to be able to complete the IPO 2 questionnaire, with the assistance of a solicitor. The third request for an extension of time, initially refused, was granted on 16 March 2020 until 1 May 2020 due to the outbreak of the COVID-19 pandemic and the related difficulties of arranging in-person translation services. That extension of time was provided to all applicants for international protection. A fourth, and final, extension of time was sought on 17 July 2020 and granted until 24 August 2020. LK attended an appointment with his solicitor in the presence of a translator on 5 August 2020, and the IPO 2 questionnaire was submitted to the IPO on 25 August 2020.

11

Meanwhile, on 20 June 2020, LK applied to the Labour Market Access Unit (‘the LMAU’) for permission to access the labour market pursuant to Regulation 11(3) of the 2018 Regulations.

12

That application was rejected by the LMAU on 28 August 2020 on the ground that the delay in issuing a first instance decision was attributable to LK. The LMAU also stated that LK had not returned the IPO 2 questionnaire.

13

On 11 September 2020, LK requested a review of that rejection. In a decision dated 2 December 2020, the Review Officer at the Ministry of Justice confirmed that rejection, taking the view that the delay in the issuance of a first instance decision could be attributed to LK’s actions because he had failed to attend the interview of 16 September 2019 and had not returned the IPO 2 questionnaire within a reasonable time-frame.

14

LK submitted an appeal against that rejection to the International Protection Appeals Tribunal, which was dismissed by a decision of 3 March 2021.

15

He then submitted an application for judicial review against that decision before the High Court (Ireland). By judgment of 9 June 2022, that court held that the finding by the International Protection Appeals Tribunal that the delay in issuing a first instance decision could be attributed to LK and/or that he failed to cooperate in the processing of his application was unreasonable and irrational, and it set aside that decision.

16

That judgment was appealed to the Supreme Court (Ireland), which is the referring court.

17

That court considers that no delay can be attributed to LK for the period from 2 September 2019, the date he applied for international protection, until the expiry of a reasonable period after 28 January 2020, the date the Legal Aid Board (Ireland) appointed a solicitor for him in order to assist him in the preparation of his response to the IPO 2 questionnaire.

18

It observes, however, that on 4 March 2020, even though LK had again been granted fresh extensions of time on 5 and 20 February 2020 to reply to that questionnaire, it had still not been completed. The referring court states that it was only by reason of the onset of the COVID-19 pandemic, and the restrictions associated with that, that a further extension of time was granted on 16 March 2020 to all applicants for international protection, which allowed LK to benefit from an additional time limit until 1 May 2020. However, the IPO 2 questionnaire had still not been submitted by LK on that date and it was not until 17 July 2020 that a further extension of time was requested by LK.

19

That court considers that the fact that the IPO agreed to grant a certain number of extensions of time is irrelevant, given that, in the absence of LK providing the necessary information in a duly completed IPO 2 questionnaire, the application for international protection could not be processed.

20

It considers that, even taking into account the COVID-19 pandemic, LK’s delay in submitting the IPO 2 questionnaire remains without satisfactory explanation.

21

As regards the application for permission to access the labour market made by LK on 20 June 2020, the referring court states that, on that date, LK had not provided the IPO with the information necessary for processing his application for international protection. In that regard, it considers that if the IPO 2 questionnaire had been submitted in good time, there is nothing to suggest that LK’s application for international protection could not have been processed within the nine-month period referred to in Article 15(1) of Directive 2013/33, running from 2 September 2019.

22

That court considers that it could be argued that the delay in processing LK’s application for international protection was entirely attributable to LK since, in the absence of his cooperation with the IPO, his application could not be processed. However, in its view, the fact remains that part of the delay which occurred since 2 September 2019 cannot be attributed to LK.

23

In those circumstances, that court is uncertain as to how the various factors that caused the delay in the processing of LK’s application for international protection must be attributed. It states, in that regard, that Directive 2013/33 gives no guidance as to what acts may constitute a delay attributable to an applicant for international protection.

24

It also raises the question whether and to what extent the inclusion in the 2018 Regulations of the expression ‘attributed in part’ means that Ireland has not correctly transposed Directive 2013/33 into national law, bearing in mind the discretion enjoyed by the Member States in the implementation of that directive.

25

In those circumstances, the Supreme Court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

26

By its four questions, the referring court seeks the Court’s guidance on the interpretation of a ‘delay [which] cannot be attributed to the applicant’ within the meaning of Article 15 of Directive 2013/33.

27

By its first three questions, which it is appropriate to examine together, the referring court asks the Court of Justice, in essence, whether Article 15(1) of Directive 2013/33 must be interpreted as meaning that, first, the fact that an applicant for international protection has not provided any information enabling the competent authorities to examine his or her application for international protection for a period exceeding the nine-month period laid down in that provision constitutes a delay attributable to the applicant within the meaning of that provision and, second, whether that delay attributable to that applicant relates solely to the delay or the part of the delay attributable exclusively to that applicant, or also to a delay with mixed causes, that is to say, attributable both to the conduct of that applicant and to the Member State and/or external factors.

28

It should be recalled that, in accordance with settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling (judgment of 6 October 2021, Sumal, C‑882/19, EU:C:2021:800, paragraph 27 and the case-law cited).

29

In that regard, since the period of nine months laid down in Article 15(1) of Directive 2013/33 runs from the lodging of the application for international protection, the present request for a preliminary ruling is necessarily based on the premiss that the lodging of LK’s application for international protection, within the meaning of Article 6(4) of Directive 2013/32, took place on 2 September 2019. It is appropriate for the Court of Justice to examine the first to third questions referred for a preliminary ruling on the basis of that factual premiss, the accuracy of which it is for the referring court to determine.

30

In accordance with Article 15(1) of Directive 2013/33, in the absence of a first instance decision adopted by the competent authority within nine months from the date when the application for international protection was lodged, the applicant must be able, without further delay and unless the delay in processing that application is attributable to him or her, to obtain permission to access the labour market of the host Member State. As is apparent from recital 23 of that directive, the applicants’ access to the labour market is intended to promote the self-sufficiency of applicants and to limit wide discrepancies between Member States.

31

In order to interpret that provision, it should be recalled that it has already been held by the Court that it was important to take account of the common rules of procedure for granting international protection established by Directive 2013/32 and that it follows from Article 31(3) of that directive 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 article 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/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9), namely their age, background, including that of relevant relatives, nationality (or nationalities), country (or countries) and place (or places) of previous residence, previous asylum applications, travel routes, travel documents and the reasons for applying for international protection. The Court has also made clear that 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 January 2021, The International Protection Appeals Tribunal and Others, C‑322/19 and C‑385/19, EU:C:2021:11, paragraphs 76 and 77 and the case-law cited).

32

In addition, the Court has held that 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 (judgment of 14 January 2021, The International Protection Appeals Tribunal and Others, C‑322/19 and C‑385/19, EU:C:2021:11, paragraph 78).

33

Accordingly, 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 (judgment of 14 January 2021, The International Protection Appeals Tribunal and Others, C‑322/19 and C‑385/19, EU:C:2021:11, paragraph 79).

34

Thus, the fact that an applicant does not provide any information enabling the competent authorities to examine his or her application for international protection for a period exceeding the nine-month period from the lodging of that application constitutes a total lack of cooperation which justifies that applicant not being able to have access to the labour market under Article 15(1) of Directive 2013/33 at the end of that period. That total lack of cooperation has therefore meant that the maximum period of nine months in that provision could not start to run.

35

That being said, unlike a total lack of cooperation during the maximum period of nine months referred to in Article 15(1) of Directive 2013/33, a failure on the part of the applicant to cooperate for a part of that time interval cannot have such a consequence.

36

In such a situation, the only consequence of the delay in processing his or her application must be the extension of that nine-month period by the time interval during which that applicant’s failure to cooperate led to that delay, for the purposes of determining the date from which, in the absence of a first instance decision, that applicant is entitled to obtain permission to access the labour market. By contrast, the time intervals within that period during which that delay was attributable exclusively to causes other than the conduct of that applicant cannot be taken into account in the extension of the period in question.

37

However, in the present case, the referring court questions whether it is possible to attribute to an applicant for international protection a delay the causes of which are mixed, that is to say, attributable both to the applicant and the host Member State or external factors, such as a pandemic.

38

In that regard, it is apparent from the file submitted to the Court that the facts giving rise to the main proceedings involve such situations, in particular for the period after 28 January 2020, the date when the Legal Aid Board appointed a solicitor to assist LK in preparing his response to the IPO 2 questionnaire, and before which the national court considers that the lapse of time cannot, in any event, be attributed to LK.

39

In addition, as regards the period after 28 January 2020, the referring court observes that, although there can be no question of a delay being attributed to LK as regards the reasonable period necessary for him to complete the IPO 2 questionnaire, nevertheless, on 4 March 2020, that questionnaire had still not been returned to the IPO, even though additional periods of time had been granted to LK on 5 and 20 February 2020. That court also states that it was only because of the onset of the COVID-19 pandemic that a further extension of time was granted on 16 March 2020 to all applicants for international protection, which allowed LK to benefit from an extension of time until 1 May 2020. However, it notes that, on that date, that questionnaire had still not been returned to the IPO and that it was not until 17 July 2020, that is to say, two and a half months later, that a further extension was sought and granted until 24 August 2020. Subsequently, on 5 August 2020, LK attended a meeting with his solicitor and translator and submitted the completed IPO 2 questionnaire on 25 August 2020.

40

In that regard, it should be noted that, in order for a delay to be attributed to an applicant for international protection, it must be established, in the light of all the relevant circumstances of the case, that there is a causal link between that applicant’s conduct and the delay established, with the result that the applicant may be held responsible only for the delays resulting from his or her actions. It follows that, in the case of a delay for which it is established that the causes are mixed, it is important to be able to determine the proportion of that delay attributable to that applicant.

41

In the event that such a determination is possible, it is for the competent authority of the host Member State to take into consideration not the whole of the time interval, the lapse of which can be explained by mixed causes, but a fraction of that time interval which corresponds to the share of responsibility attributable to the applicant for international protection, in order to extend, by that fraction, the nine-month period referred to in Article 15(1) of Directive 2013/33, from which date that applicant has the right to access the labour market and the Member State would be in breach of its obligations if it refused permission to that end.

42

Such an interpretation makes it possible to ensure a balance between, on the one hand, the applicant’s right, in the absence of a first instance decision within the nine-month period laid down in Article 15(1) of Directive 2013/33, to have access to the labour market and, on the other hand, the interests of the host Member State, which cannot be criticised for failing to grant such access on expiry of that period where that applicant is, in part, responsible for the failure to adopt a first instance decision within that period.

43

In those circumstances, the answer to the first to third questions is that Article 15(1) of Directive 2013/33 must be interpreted as meaning that the delay which may be attributed to the applicant for international protection, within the meaning of that provision, covers not only the delay or part of the delay attributable exclusively to that applicant, but also, where there is a time interval the lapse of which can be explained by mixed causes, that is to say, the origin of which is attributable both to the conduct of that applicant and to the host Member State and/or to external factors such as, in particular, a pandemic, the fraction of that time interval which appears, in the light of all the circumstances of the case, to correspond to the share of responsibility attributable to that applicant.

44

By its fourth question, the referring court asks, in essence, whether Article 15(1) of Directive 2013/33 must be interpreted as precluding legislation of a Member State under which the national authority which is competent to grant permission to access the labour market in that Member State may refuse to grant such permission to an applicant for international protection whose application, which has been pending for at least nine months in that Member State, has still not been the subject of a first instance decision for reasons that may be attributed ‘in part’ to that applicant.

45

It follows from the answer to the first to third questions that, where there is a delay in the adoption of a first instance decision, Article 15(1) of Directive 2013/33 allows that Member State to determine whether there is a causal link between the conduct of an applicant for international protection and that delay, including where that delay is attributable only in part to that applicant, in order to postpone, beyond the nine months provided for in that provision, the expiry of the period at the end of which that Member State is required to grant that applicant access to the labour market, up to the amount of the time interval in respect of which that causal link has been established or, where there is a delay with mixed causes, the fraction of that time interval which corresponds to the share of responsibility attributable to that applicant.

46

Accordingly, the answer to the fourth question is that Article 15(1) of Directive 2013/33 must be interpreted as not precluding legislation of a Member State under which the national authority which is competent to grant permission to access the labour market may refuse to grant such permission to an applicant for international protection whose application, which has been pending for at least nine months in that Member State, has still not been the subject of a first instance decision for reasons that may be attributed ‘in part’ to that applicant, in so far as only the time interval in respect of which a causal link has been established between the conduct of that applicant and the occurrence of that delay or, where there is a time interval the lapse of which is due to mixed causes, the fraction of that interval corresponding to the share of responsibility attributable to that applicant is taken into account as a basis for that refusal.

47

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Tenth Chamber) hereby rules: