Court of Appeal overturns damages awarded to man incorrectly denied permanent residence



The case between Ewaen Fred Ogieriakhi and the Minister for Justice and Equality, Ireland, the Attorney General and An Post had spanned ten years, and been before a number of High Court judges, the Supreme Court, the European Court of Justice and finally the Court of Appeal.

In essence, it concerned two issues: the first being Mr Ogieriakhi’s ability to claim permanent residence under EU Directive 2004/38/EC as transposed into Irish Law by S.I. 656/2006; article 16 of 2004/38/EC: General rule for Union Citizens and their Family Members.

This Directive allowed the family members of EU citizens, who are not themselves nationals of a Member State, to claim permanent residence if they had legally resided with the EU citizen in the host Member State for a continuous period of five years.

Mr Ogieriakhi had attempted to claim residence under this Directive, but had been refused, as although he had married an Irish national in 1999, the Court held that the new regulations did not confer a right to permanent residence on the plaintiff because the right began on 30th April 2006 and did not apply to events that happened back in 1999.

Further, the entitlement did not apply to residence in 2005 or 2006 unless it was a continuous period of five years. Because Mr Ogieriakhi’s (now ex) spouse was not in the State on 30th April 2006, the plaintiff did not qualify for permanent residence under the terms of the new Directive and Regulations.

Following a decision of the European Court of Justice in 2010,Secretary of State for Work and Pensions v. Lassal C – 162/09, which disagreed with this interpretation, Mr Ogieriakhi sought judicial review of the decision refusing him residency.

This proceeded despite Mr Ogieriakhi being awarded permanent residency in 2011.

The High Court applied to the European Court of Justice for an interpretation of the Directive, and whether it could apply to Mr Ogieriakhi, considering that he had been living apart from his spouse, and indeed with someone else, by 2002.

The second issue related to Mr Ogieriakhi’s dismissal from An Post in 2007, following their discovery that as a result of his denial of permanent residence, he did not have a work permit.

As a result of these issues, the High Court found in 2014 that that the dismissal of the plaintiff from his position in An Post in 2007 resulted directly from the wrongful failure of the State to apply article 16 (2) of the 2004 Directive properly; second, such wrongful failure constituted a serious breach of EU law within the meaning of the Francovich principles as elaborated in subsequent decisions; third, that the plaintiff was entitled to damages in the amount of €107,905 and fourth, awarding the plaintiff €20,000 for breach of his constitutional right to a good name.

This was appealed by the defendants, and although Mr Ogieriakhi did not submit a cross-appeal, in the proceedings he made submissions argung that he was entitled to more compensation, amounting to all the earnings he would have had if he had continued to be employed by An Post.

The Court of Appeal found that it had to consider:

(i) Was Mr. Ogieriakhi entitled to Francovich-principle damages? More specifically, was the second element of the Brasserie du pecheur test satisfied?

(ii) Was the High Court correct in finding a breach of Irish law and fashioning a novel constitutional remedy to award compensation for it?

(iii) Was Mr. Ogieriakhi entitled to succeed in his complaints about the award?

The Court identified the law as being the Francovich principles, as developed by Brasserie du Pecheur EU C: 1996:79. These created a rest that considered that where a Member State fails to fulfil its obligation to take all the measures necessary to achieve the result prescribed by a directive, the full effectiveness of that rule of Community law requires that there should be a right to reparation, subject to conditions.

These rules required consideration of whether the State manifestly and gravely disregarded the limits on its discretion, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law.

The High Court had held that the requirement in the Directive was clear and precise, that it was not objectively excusable and that the Minister “adopted an interpretation of article 16 (2) which was always inherently unlikely to prevail”.

The Court of Appeal found that this had been erroneous, as the High Court had misapplied the Court of Justice jurisprudence.

Further, there was significant uncertainty surrounding the Directive until the Court of Justice considered the matter in the Lassal case.

It seemed to the Court of Appeal that the infringement was unintentional, and excusable.

The State adopted a measure that was expressly intended to carry Union law into effect in the national scheme and did not seek to retain it after the ruling of the Court of Justice declared its understanding to be incorrect. The State duly proceeded to abide by the judgment by changing its rules.

Thus, the High Court had failed to apply the test for State liability correctly.

In terms of the High Court’s finding that the breach was a very serious one with grave consequences for Mr Ogieriakhi, the Court of Appeal also disagreed.

It was noted that An Post would have been happy to re-employ him if he obtained a permit, and indeed only dismissed him after seeking legal advice.

The Court of Appeal concluded that: “The principle of liability is not that an inadvertent error in transposition of a Directive gives rise to a right of action for a person affected. But that is the test that the trial judge in effect applied.”

In relation to the High Court’s finding that Mr Ogieriakhi’s good name had been damaged, the Court of Appeal found that there was no evidence or suggestion in this case that there was anything defamatory in the manner of the dismissal.

The High Court had used the constitution to justify a legal remedy, as it found there to be no legal remedy within common law or statute.

The Court of Appeal disagreed with this approach, noting that: “There are occasions when common law and legislation fail to provide a remedy in particular circumstances where it is open to the courts to invoke the constitution as a free-standing source of legal remedy. But it is not a bolt-on cause of action when there is no case otherwise.”

While these findings meant that the plaintiff was no longer entitled to damages, the Court of Appeal noted its disagreement with the High Court’s assessment of damages.

The plaintiff was dismissed from his position with An Post on 24th October 2007, and they offered his job back on 27th June 2008. The trial judge awarded damages based on loss of earnings for a period of six years because that was the maximum permitted by the Statute of Limitations, subject to an obligation on the plaintiff’s part to mitigate his loss.

The Court of Appeal argued that instead, damages should have been calculated on the basis of his net loss of earnings between 24th October 2007 and 27th June 2008.

In relation to Mr Ogieriakhi’s claim for greater damages, these were found to be based on an argument that he was discriminated against, and that he was therefore entitled to his accrued remuneration from An Post.

However, the Court of Appeal found that he had not been discriminated against, and that the reason he was dismissed was because of an incorrectly transposed Directive.

Thus, the Court set aside the High Court’s orders.

  • by Rachel Killean for Irish Legal News