On 20 October the Court of Justice of the European Union (CJEU) ruled that a 15 day time limit imposed on failed refugee applicants to apply to the Minister for Justice and Equality for subsidiary protection breached the principle of effectiveness. The CJEU found the 15 day time limit to be particularly short, and therefore it rendered it impossible in practice or at least excessively difficult for an individual to exercise their rights under EU law and Directive 2004/83 specifically.
By way of background the applicant a Ghanaian national Ms Danqua applied for refugee status in 2010. Ms Danqua’s application was unsuccessful and in February 2011 was issued with a proposal to deport, along with notification that she could make an application for subsidiary protection. Ms Danqua subsequently made an application for subsidiary protection which was rejected by the Minister that the application had not been lodged within 15 days of the refusal of refugee status.
Ms Danqua was unsuccessful in the High Court having argued that there had been a breach of the principle of equivalence in that a similar time limit did not apply in respect of application for asylum. Ms Danqua appealed that decision to the Court of Appeal which stayed the hearing and referred the issues to the CJEU for preliminary ruling.
The Court of Appeal referred the following questions:
The CJEU observed that the principle of equivalence requires that a national rule be applied without distinction to procedures based on EU law and those based on domestic law – however in this situation where the two types of applications were based on EU law the principle of equivalence did not apply.
The CJEU therefore focused on whether the principle of effectiveness had been breached. The CJEU found that in respect of national rules which come within the scope of EU law, it is for the Member State to establish those time limits in light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration. The CJEU found, that in that context, and mindful of the difficult human and material situation in which such applicants may find themselves the 15-day time limit could not be justified as it did not ensure that applicants had a real opportunity to apply for subsidiary protection.
Click here for the judgement.
Click here and here for relevant EU Directives.
Click here for further commentary.