Ireland as an EU Member State cannot avoid responsibility for providing adequate reception conditions even in cases where there is a large influx of people seeking international protection, according to the European Court of Justice's Advocate General.
The opinion relates to High Court actions by two applicants against the Irish authorities, alleging breaches of their rights under the Reception Conditions Directive and the Charter of Fundamental Rights of the European Union.
The High Court in Ireland sought a ruling from the European Court of Justice, that was sent to the Advocate General Laila Medina for an opinion, which has been published.
The men in question applied for international protection in 2023, but were denied housing and received a €25 voucher.
They were also deemed ineligible for daily allowances. Consequently, both ended up homeless in Dublin.
The Government argued the breaches were due to exceptional circumstances, namely an influx of asylum seekers, which amounted to "force majeure" under EU law.
Force majeure refers to an abnormal or unforeseen event beyond the control of a state, making it materially impossible to fulfil an obligation.
While Ms Medina suggested that force majeure may apply temporarily, it should only be for a reasonable period to resolve the issue.
She has concluded the right to dignity is non-derogable, an absolute right, and if a member state fails to meet the basic needs of applicants for international protection, it infringes EU law.
Therefore the member state cannot invoke force majeure as a defence.
The advocate general's opinion has been viewed as highly significant by advocates of those seeking international protection here.
S.A., an Afghan national, and R.J., an Indian national, applied for international protection in Ireland in early 2023.
Under the Reception Conditions Directive, they were entitled to material reception conditions, including housing, food and allowances.
However, they were denied housing, received a voucher for €25 and were deemed ineligible for daily allowances. They were homeless on the streets of Dublin.
S.A. had sustained injuries in a road incident prior to arriving in Ireland, while R.J. developed health issues from living on the streets.
The advocate general states the Irish authorities did not acknowledge the applicants’ states of vulnerability and their requests for assistance were denied.
Following changes to eligibility criteria in April and May 2023, both applicants were granted a daily allowance, with retroactive effect, and later, accommodation.
The applicants brought actions against the Irish authorities in the High Court.
The Irish authorities acknowledged the applicants had suffered violations of national laws implementing the directive, but contested their entitlement to damages.
The Government argued the breaches were due to exceptional circumstances - the influx of asylum seekers.
The contention was that the influx had exhausted accommodation capacity and therefore the breach was not intentional.
The advocate general assessed the question of whether the concept of force majeure could be invoked to justify a member state’s failure to meet its obligations under Article 18(9) of the Reception Conditions Directive, particularly in the context of a massive influx of applicants for international protection leading to the exhaustion of housing capacity.
Ms Medina noted the article imposes "a clear and unequivocal obligation" on EU member states to provide applicants with adequate material reception conditions, including housing.
"This obligation is not conditional on the scale of the influx of applicants; rather, it is an absolute requirement that must be met, regardless of the challenges faced by the member state," she said.
While the article allows EU member states some discretion in how they manage such influxes, this discretion is limited.
The advocate general said this did not extend to derogating from the fundamental obligation to ensure that applicants’ human dignity is respected.
She further examined the potential applicability of the force majeure defence within the framework of the Brasserie du Pêcheur and Factortame cases.
The joined cases of Brasserie du Pêcheur and Factortame established the principle that EU member states can be held liable for damages caused to individuals by breaches of Community Law attributable to that state.
She observed these cases allowed for a defence of force majeure under specific circumstances, but stressed that such a defence cannot be invoked when a breach involves absolute rights, such as human dignity.
Ms Medina said failure to provide basic reception conditions infringed both the Reception Conditions Directive and the Charter of Fundamental Rights of the EU.
"That Member State cannot, therefore, invoke force majeure as a defence for its failure to comply with its obligations," she said.
She proposed the European Court Justice should rule that Article 18(9) of the Reception Conditions Directive is a specific expression of force majeure, but one that is limited to exceptional circumstances, such as the exhaustion of housing capacity due to a large influx of applicants.
However, even in such exceptional circumstances, the member state remains bound by its obligations to ensure the basic needs of applicants are met and force majeure cannot be invoked to justify non-compliance with these obligations.
The opinion of the advocate general, who is not a judge but a member of the European Court of Justice, will now go to the ECJ for ruling.
Opinion welcomed by advocates
CEO of the Irish Refugee Council Nick Henderson welcomed the opinion in the case brought by the IRC's Independent Law Centre’s client, S.A. who he said experienced 72 days of street homelessness, hunger and fear in Ireland after applying for international protection because there was no accommodation made available to him.
"The advocate general strongly sets out that Ireland cannot avoid its obligations under EU law to provide for basic accommodation and means of subsistence for international protection applicants, which are fundamental to respect for international protection applicants’ right to human dignity and the prevention of inhuman and degrading treatment," Mr Henderson said.
"She says that EU law is clear that Ireland cannot use the excuse of a large influx of people to the country to justify its failures to provide basic accommodation," he said.
He added that as of 2 April, there were 3,150 international protection applicants who are awaiting an offer of accommodation.
Mr Henderson said people "continue to have to demonstrate their eligibility for accommodation by sleeping rough, putting themselves at risk and relying on the support of volunteers and stretched homeless services".
He said: "Several camps have been dismantled by gardaí with no referral to accommodation.
"We understand that around 300 protection applicants were not given an offer accommodation in March.
"As we have repeatedly said, there are solutions and alternatives to this ongoing human rights crisis and we ask Government to act."
Asked for its view of the advocate general’s assessment, the Irish Human Rights and Equality Commission said it welcomed the "important opinion".
A spokesperson said it was particularly noteworthy that the Ms Medina’s opinion has stated the obligation is not conditional on the scale of the influx of applicants but an absolute requirement that must be met, regardless of the challenges faced by members states and that force majeure cannot be invoked when a breach involves absolute rights such as human dignity.
It said the statements of the advocate general regarding the rights of international protection applicants to human dignity and freedom from inhuman or degrading treatment under the EU Fundamental Rights Charter "is particularly welcome".
