Evelyn Danqua v Minister for Justice and Equality and Others.

• Jurisdiction: European Union
• Celex Number: 62015CJ0429
• ECLI: ECLI:EU:C:2016:789
• Docket Number: C-429/15
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 20 October 2016

JUDGMENT OF THE COURT (Third Chamber)

20 October 2016 ( *1 )

‛Reference for a preliminary ruling — Directive 2004/83/EC — Minimum standards for granting refugee status or subsidiary protection status — National procedural rule laying down, for the submission of an application for subsidiary protection, a period of 15 working days from notification of the rejection of the application for asylum — Procedural autonomy of the Member States — Principle of equivalence — Principle of effectiveness — Proper conduct of the procedure for examining the application for subsidiary protection — Proper conduct of the return procedure — Not compatible)’

In Case C‑429/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Court of Appeal (Ireland), made by decision of 29 July 2015, received at the Court on 5 August 2015, in the proceedings

Evelyn Danqua

v

Minister for Justice and Equality,

Ireland,

Attorney General,

THE COURT (Third Chamber),

composed of L. Bay Larsen (Rapporteur), President of the Chamber, M. Vilaras, J. Malenovský, M. Safjan and D. Šváby, Judges,

Advocate General: Y. Bot,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 16 June 2016,

after considering the observations submitted on behalf of:

— Ms Danqua, by M. Trayers, Solicitor, P. O’Shea BL and C. Power SC,

— the Minister for Justice and Equality, by R. Cotter and E. Creedon, acting as Agents, and F. O’Sullivan BL and R. Barron SC,

— the European Commission, by M. Condou-Durande and X. Lewis, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 29 June 2016,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of the principle of equivalence.

2 The request has been made in proceedings between Ms Evelyn Danqua, a Ghanaian national, on the one hand, and the Minister for Justice and Equality (‘the Minister’), Ireland and the Attorney General, on the other, concerning the Minister’s refusal to examine Ms Danqua’s application for subsidiary protection status.

Legal context

Directive 2004/83/EC

3 Under Article 2(a), (e) and (f) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12), the following terms had the following definitions: ‘(a) “international protection” means the refugee and subsidiary protection status as defined in (d) and (f); ... (e) “person eligible for subsidiary protection” means a third country national … who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, … would face a real risk of suffering serious harm as defined in Article 15 … (f) “subsidiary protection status” means the recognition by a Member State of a third country national ... as a person eligible for subsidiary protection’.

4 Article 18 of that directive stated as follows: ‘Member States shall grant subsidiary protection status to a third country national ... eligible for subsidiary protection in accordance with Chapters II and V.’

Directive 2005/85/EC

5 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13) lays down, inter alia, the rights of applicants for asylum.

6 Under Article 3(1) of Directive 2005/85, that directive is to apply to all applications for asylum made in the territory of the Member States.

7 Article 3(3) of that directive provides that: ‘Where Member States employ or introduce a procedure in which asylum applications are examined both as applications on the basis of the [Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, vol. 189, p. 150, No 2545 (1954))] and as applications for other kinds of international protection given under the circumstances defined by Article 15 of Directive [2004/83], they shall apply this Directive throughout their procedure.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

8 The documents before the Court state that, on 13 April 2010, Ms Danqua, a Ghanaian national, made an application for refugee status, in Ireland; the reason for the application being Ms Danqua’s fear of being subjected to trokosi practices, a form of ritual servitude practised in Ghana and predominantly affecting women.

9 In a report of 16 June 2010, the Refugee Applications Commissioner (Ireland) issued a negative recommendation in respect of that application because of its lack of credibility. That recommendation was confirmed on appeal by the Refugee Appeals Tribunal (Ireland) by decision of 13 January 2011.

10 On 9 February 2011, the Minister notified Ms Danqua of a decision rejecting her application for asylum and informed her of his proposal to make a deportation order against her (proposal to deport), telling her, inter alia, that she had the possibility of making an application for subsidiary protection within a period of 15 working days of that notification.

11 Following that decision, the Refugee Legal Service (Ireland) informed Ms Danqua that because of the rejection of her application for asylum, she would not be assisted in preparing her application for subsidiary protection.

12 The Refugee Legal Service did however submit, in Ms Danqua’s name, an application for humanitarian leave to remain.

13 By letter of 23 September 2013, the Minister informed Ms Danqua that that application had been rejected and that a return decision had been issued against her on 17 September 2013.

14 On 8 October 2013, Ms Danqua lodged an application for subsidiary protection.

15 By letter of 5 November 2013, the Minister informed Ms Danqua that her application for subsidiary protection status could not be accepted, since that application had not been lodged within the period of 15 working days referred to in the Minister’s notification of 9 February 2011 rejecting her application for asylum.

16 Ms Danqua challenged that decision before the High Court (Ireland), relying, inter alia, on a breach of the principle of equivalence based on the obligation, on an applicant for subsidiary protection, to comply with a time limit such as that at issue in the main proceedings for making an application for subsidiary protection, when compliance with a similar time limit was not required for making an application for asylum.

17 By judgment of 16 October 2014, the High Court dismissed Ms Danqua’s action, holding, inter alia, that the principle of equivalence was not applicable in the case in point, since Ms Danqua was comparing two procedural rules based on EU law.

18 On 13 November 2014, Ms Danqua brought an appeal against that judgment before the Court of Appeal. Ms Danqua reiterated before that court her line of argument that the obligation, on an applicant for subsidiary protection, to comply with a time limit such as that at issue in the main proceedings was in breach of the principle of equivalence, since there was no similar time limit applicable to persons making an application for refugee status.

19 The Court of Appeal, whilst raising the question of the relevance of the principle of equivalence in the present case, considers that an application for asylum may constitute an appropriate comparator for the purposes of ensuring observance of the principle of equivalence.

20 In this connection, the referring court observes that, although the majority of applications for asylum are dealt with under the regime established by Directive 2004/83, the Member States, at least in theory, may still grant asylum in accordance with their national law. To that extent, applications for asylum fall partly within the scope of EU law and partly within the scope of national law.

21 As regards the obligation, on an applicant for subsidiary protection, to comply with a time limit such as that at issue in the main proceedings for making an application for subsidiary protection, the referring court considers that that time limit is justified by objective considerations. The national...