Opinion of the Advocate General — ECLI:EU:C:2020:648
Date: 2020-09-03
Language of the case: English
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Ireland

Registered at the
Court of Justice under No. A A -2, A
Luxembourg, 1 9, 08. 2019
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roslav Aleksejev 
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BETWEEN
No Redaction Needed
THE HIGH COURT
JUDICIAL REVIEW
[2018 No. 490 J.R.]
M.S. (AFGHANISTAN)
AND
APPLICANT
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
AND
[2018 No. 796 J.R.]
M.W. (AFGHANISTAN)
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
AND
[2018 No. 962 J.R.]
G.S. (GEORGIA)
AND
APPLICANT
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 2lld day of
July, 2019
curia mms
to*. 1 6. 08. 2019
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Facts in M.S.
1. Mr. M.S. is an asylum seeker from Afghanistan who claims to have come to 
the State via Greece, Italy and France. On 1st August, 2017 he applied for 
international protection. Fraudulently, he failed to tell the IPO that he had already 
been granted subsidiary protection by Italy. Following his application, a Eurodac hit 
showed matches with fingerprints previously taken in France in April and June, 2017 
and in Italy on 6th August, 2012. Contact was made with the Italian authorities who 
on 10th October, 2017 informed the International Protection Office that the applicant 
had been granted subsidiary protection in Italy and had a residence permit up to 11th 
December, 2020. On 1st December, 2017 the IPO decided that the application for 
protection was inadmissible under s. 21(4)(a) of the International Protection Act 2015. 
The applicant appealed that recommendation to the International Protection Appeals 
Tribunal on 17th January, 2018. On 23rd May, 2018 the tribunal decided to uphold the 
decision to deem the protection application to be inadmissible.
Facts in M.W.
2. Mr. M. W. also hails from Afghanistan and has a particularly chequered 
immigration history. He claims to have left Afghanistan in 2009 and to have travelled 
through Iran, Turkey, Greece, Italy and France to the UK. He was given permission 
to remain for a year in the UK, which he unsuccessfully sought to renew. He then 
remained illegally until 22nd February, 2014 when he travelled to France and then 
Belgium. He applied for international protection in Belgium on 24th February, 2014 
and then was returned to the UK on 1st May, 2014 presumably pursuant to the Dublin 
system. He was deported from the UK to Afghanistan on 22nd July, 2014 but left his 
home country again in December, 2014 when he travelled through Pakistan, Iran, 
Turkey, Greece, North Macedonia, Serbia, Croatia and Austria, ultimately spending
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periods in Germany, France and Italy. He then returned to France for a year, then 
came back unlawfully to the UK in early 2017 and finally to Ireland, where he made a 
claim for international protection on 4th July, 2017. Again, he does not seem to have 
disclosed his immigration history when doing so.
3. On 14th August, 2017 the Italian authorities informed the IPO that the 
applicant had been granted subsidiary protection in Italy and had a residence permit 
up to 23rd January, 2022. On 2nd February, 2018 the IPO decided to deem the 
application for international protection to be inadmissible. The applicant appealed 
that to the IP AT on 8th February, 2018, in a notice of appeal which did not contain any 
grounds. A subsequent ground of appeal was furnished on 22nd February, 2018. On 
28th September, 2018 the tribunal rejected the appeal.
Facts in G.S.
4. Mr. G.S. is a national of Georgia who claimed to have left Georgia originally 
in 1993. He went to Germany and claimed asylum there but returned to his home 
country after ten days. He then left Georgia again in 1995 and went to Portugal on a 
work visa staying for four years before returning home. He left his own country again 
in 2003 and went to Austria where he claimed asylum, but was required to leave after 
four years’ presence there. At some point he also applied for asylum in Switzerland 
but withdrew that claim. He returned to Georgia and then in January, 2009 travelled 
to Italy via Turkey and applied for international protection. He was refused refugee 
status but granted subsidiary protection. He then travelled to Ireland, arriving on 17th 
December, 2017 and was refused leave to land. He then indicated that he wished to 
apply for international protection and did so the following day, By contrast with the 
other applicants, he was forthcoming about his immigration history. A Eurodac hit 
confirmed matches with fingerprints taken in Italy in 12th March, 2009. A take-back
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request under the Dublin system was issued on 17th January, 2018 to Italy but that was 
refused on 31st January, 2018 on the grounds that the asylum procedure had been 
completed in Italy. On 29th June, 2018, the IPO decided to deem his application for 
international protection to be inadmissible. That was appealed to the tribunal, which 
decided on 18th October, 2018 to affirm that recommendation.
Procedural history in M.S,
5. The applicant’s statement of grounds was filed on 20th June, 2018, the primary 
relief sought being an order of certiorari directed to the decision of the tribunal of 23rd 
May, 2018. I granted leave on 25th June, 2018 and have received helpful submissions 
from Mr. Colm O’Dwyer S.C. (with Mr. James Buckley B.L.) for the applicant (and 
who also appeared in M.W.) and from Mr. Robert Barron S.C. (with Ms. Suzanne 
Kingston B.L.) for the respondent (who appeared in all three of the cases that are 
being heard together). Liberty to amend the statement of opposition was given on 1st 
July, 2019.
Procedural history in M.W.
6. The statement of grounds was filed on 4th October, 2018, the primary relief 
sought being certiorari of the tribunal decision of 28th September, 2018 (incorrectly 
referred to as 28th October, 2018 in the statement of grounds). I granted leave on 8th 
October, 2018. Liberty to amend the statement of opposition was given in this case 
also on 1st July, 2019.
Procedural history in G.S.
7. Leave in G.S. was granted on 19th October, 2018, the primary reliefs being an 
order of certiorari directed to the decision of the tribunal of 19th October, 2018 and a 
declaration that s. 21(2)(a) of the 2015 Act is contrary to EU law and is invalid. In 
this regard I have received helpful submissions from Mr. Michael Conlon S.C. (with
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Mr. David Leonard B.L.) for the applicant and, as noted above, from Mr. Barron (with 
Ms. Kingston) for the respondent. Again, liberty to amend the statement of 
opposition was given on 1st July, 2019.
National and European legislation at issue
8. Section 21(2)(a) of the 2015 Act says “(2) An application for international 
protection is inadmissible where one or more than one of the following circumstances 
applies in relation to the person who is the subject of the application; (a) another 
Member State has granted refugee status or subsidiary protection status to the 
person...".
9. Recital 22 to the asylum procedures directive 2005/85 states as follows:
“Member States should examine all applications on the substance, i.e. assess whether 
the applicant in question qualifies as a refugee in accordance with 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 (1), 
except where the present Directive provides otherwise, in particular where it can be 
reasonably assumed that another country would do the examination or provide 
sufficient protection. In particular, Member States should not be obliged to assess the 
substance of an asylum application where a first country of asylum has granted the 
applicant refugee status or otherwise sufficient protection and the applicant will be 
readmitted to this country
10. Article 25 of directive 2005/85 states as follows: In addition to cases in 
which an application is not examined in accordance with Regulation (EC) No 
343/2003, Member States are not required to examine whether the applicant qualifies 
as a refugee in accordance with Directive 2004/83/EC where an application is
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considered inadmissible pursuant to this Article. 2. Member States may consider an 
application for asylum as inadmissible pursuant to this Article if: (a) another Member 
State has granted refugee status; (b) a country which is not a Member State is 
considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a
country which is not a Member State is considered as a safe third country for the
(
applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the 
Member State concerned on some other grounds and as result of this he/she has been 
granted a status equivalent to the rights and benefits of the refugee status by virtue of 
Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the 
Member State concerned on some other grounds which protect him/her against 
refoulement pending the outcome of a procedure for the determination of status 
pursuant to point (d); (f) the applicant has lodged an identical application after a 
final decision; (g) a dependant of the applicant lodges an application, after he/she has 
in accordance with Article 6(3) consented to have his/her case be part of an 
application made on his/her behalf, and there are no facts relating to the dependant's 
situation, which justify a separate application
11. The recast procedures directive 2011/95, which does not apply to Ireland, has 
changed the corresponding reference to refugee status to being a reference to where 
“another member state has granted international protection” (art. 33(2)(a) of the 
recast directive).
12. The CJEU in Joined Cases C-297/17, C-318/17, C-319/17 and C-438/17 
Bashar Ibrahim and Others v. Bundesrepublik Deutschland and Bundesrepublik 
Deutschland v. Taus Magamadov at para. 71 stated that the recast procedures 
directive “.. .permits Member States also to reject an application for asylum as being 
inadmissible where the applicant has been granted by another Member State not a
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right to asylum, but solely subsidiary protection.” A similar point is made at para. 58 
of the judgment.
13. The major interpretative problem in the present case is that while the 
interlocking elements of the common European asylum system are such that under the 
recast procedures directive and the Dublin III regulation 604/2013 working together, 
it is clear that any individual member state does not have to deal with a claim for 
international protection which has previously been granted in another jurisdiction, 
either because a subsequent application in a member state can be deemed to be 
inadmissible or because the person can be returned under the Dublin system. An 
anomaly arises in the very limited category of member states that have become bound 
by the Dublin III regulation but not by the recast procedures directive. Only Ireland 
and the UK are in this category, hence creating the essential interpretative question 
here which is ultimately whether it is open to a member state to regard the grant of 
subsidiary protection by another member state as being a basis for treating a 
subsequent application for international protection as being inadmissible.
14. There are three questions of European law that fall for a decision in the present 
case and in the exercise of my discretion in that regard I consider it both necessary 
and appropriate to refer these questions to the CJEU under art. 267 of the TFEU.
First question
15. The first question is: does the reference to “the member state concerned’ in 
art. 25(2)(d) and (e) of directive 2005/85 mean (a) a first member state which has 
granted protection equivalent to asylum to an applicant or (b) a second member state 
to which a subsequent application for international protection is made or (c) either of
those member states.
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16. The applicants in M.S and M.W. says that “the member state concerned' 
means the second member state. The applicant in G.S. appeared to concede that it 
could be either member state. The respondents say that the phrase includes the first 
member state.
17. My own proposed answer is that the reference to “the member state 
concerned' in art. 25(2)(d) and (e) of the procedures directive makes most sense and 
is best interpreted as meaning either member state. That would also mean that recital 
22 to the procedures directive would have a coherent meaning. In the absence of 
including the first member state in this provision a significant anomaly would arise 
because it would mean that the grant of rights equivalent to subsidiary protection in 
any country other than a member state would be sufficient to deem an application 
inadmissible. That makes very little sense.
18. The relevance of this question is that if “the member state concerned' includes 
the first member state i.e. if it means the first member state or it means either of the 
member states, then there could have been a lawful basis on which the present 
applications were held to be inadmissible and therefore s. 21 of the 2015 Act may not 
be incompatible with EU law. Admittedly the lawful basis that would thereby arise 
was not the one specifically relied on by the tribunal. But that could be viewed as a 
purely technical issue because fundamentally the tribunal relied on s. 21 of the 2015 
Act which could be regarded as valid if “the member state concerned' either means or 
includes the first member state.
The second question
19. The second question is: where a third country national has been granted 
international protection in the form of subsidiary protection in a first member state 
and moves to the territory of a second member state does the making of a further
9
application for international protection in the second member state constitute an abuse 
of rights such that the second member state is permitted to adopt a measure providing 
that such a subsequent application is inadmissible.
20. The applicants in all three cases say that such a subsequent application is not 
an abuse of rights. Two of the applicants also appeared to hint at a pleading objection 
but that has since been addressed by an amendment to the pleadings. The applicant in 
G.S. also contended that this question does not arise out of the tribunal decision, 
although that appears to be an objection of limited force because the question goes to 
the validity of the legislation which was relied on by the tribunal decision. The 
respondents contend that a member state is permitted to adopt a measure of the type 
referred to in the question.
21. My own view is that the making of a second or indeed subsequent application 
where a person has already been granted subsidiary protection does amount to an 
abuse of rights and therefore in accordance with the general principles of Union law a 
member state is entitled to adopt measures to deem such applications inadmissible, 
such as the measure at issue in the present case. Furthermore, I would respectfully 
suggest that in terms of the overall future sustainability of the European project, it 
would be improvident to interpret Union law so as to confer additional rights in the 
sensitive area of immigration unless that is the clear meaning of the provision in 
question, especially as regards third-country nationals, and doubly so where there is a 
significant question of abuse.
22. The relevance of the question is that if the application may be rejected as an 
abuse of rights then the applicants’ challenge fails
The third question
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23. The third question is: is art. 25 of directive 2005/85 to be interpreted so as to 
preclude a member state which is not bound by directive 2011/95 but is bound by 
regulation 604/2013 from adopting a measure such as that at issue in the present case, 
which deems inadmissible an application for asylum by a country national who has 
previously been granted subsidiary protection by another member state.
24. The applicants submit that the adoption of the legislation referred to in the 
question is precluded, whereas the respondent submits it is not precluded.
25. My own view is that to read the procedures directive in a literal maimer in this 
context would create an anomaly to no particular purpose and would be inconsistent 
with the intention and purpose of the directive when taken together with the Dublin 
system legislation. The anomaly arises here because the logic and intention of the 
procedures directive and the Dublin II regulation taken together is that a member state 
does not have to determine an asylum application by someone who already has 
subsidiary protection or its equivalent in another member state or indeed elsewhere. 
That also remains the logic and intention of the recast procedures directive and the 
Dublin III regulation taken together, as indeed noted by Vedsted Hansen in 
Hailbronner and Thym, EU Immigration and Asylum Law, 2nd ed. (C.H. 
Beck/Hart/Nomos, 2016) p. 1354 where it is said that the recast procedures directive 
can be “seen as a supplement to the Dublin III Regulation”. But the lacuna is where a 
state operates on the basis of a combination of the original procedures directive and 
the Dublin III regulation which is a situation that only applies to Ireland and the UK. 
In such a situation, the question is whether the literal meaning of the procedures 
directive should be departed from and the directive interpreted in a manner consistent
with the overall intention.
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26. The relevance of the question is that if such legislation is permitted then the 
applicants’ challenge fails.
Order
27. Having regard to the foregoing the appropriate order is that the following 
questions be referred to the CJEU pursuant to art. 267 of the TFEU.
(i) . Does the reference to “the Member State concerned' in art. 25(2)(d) and (e) of
directive 2005/85 mean (a) a first member state which has granted protection 
equivalent to asylum to an applicant for international protection or (b) a 
second member state to which a subsequent application for international 
protection is made or (c) either of those member states.
(ii) . Where a third country national has been granted international protection in the
form of subsidiary protection in a first member state, and moves to the 
territory of a second member state, does the making of a further application for 
international protection in the second member state constitute an abuse of 
rights such that the second member state is permitted to adopt a measure 
providing that such a subsequent application is inadmissible.
(iii) . Is art. 25 of directive 2005/85 to be interpreted so as to preclude a member
state which is not bound by directive 2011/95 but is bound by 
regulation 604/2013, from adopting legislation such as that at issue in the 
present case which deems inadmissible an application for asylum by a third 
country national who has previously been granted subsidiary protection by 
another member state.
Approved Judgment
■Q-