Ewaen Fred Ogieriakhi v Minister for Justice and Equality and Others (No.2)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hogan |
| Judgment Date | 22 December 2014 |
| Neutral Citation | [2014] IEHC 582 |
| Court | High Court |
| Date | 22 December 2014 |
[2014] IEHC 582
THE HIGH COURT
AND
EEC DIR 2004/38 ART 16(2)
FRANCOVICH & ORS v ITALIAN REPUBLIC 1991 ECR I-5357 1993 2 CMLR 66 1995 ICR 722 (CASE C-6/90)
EEC DIR 2004/38 ART 40.1
CONSTITUTION ART 40.3.2
EEC DIR 2004/38 ART 16(1)
EEC DIR 2004/38 ART 16(4)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS)(NO 2) REGS 2006 SI 656/2006
TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267
OGIERIAKHI v MIN FOR JUSTICE & ORS UNREP HOGAN 5.3.2013 2013/41/11972 2013 IEHC 133
OGIERIAKHI v MINISTER FOR JUSTICE & EQUALITY ECR I-2068 2014 1 WLR 3823 2015 1 CMLR 14 (CASE C-244/13)
EEC DIR 68/360 ART 10
GLENCAR EXPLORATIONS PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84 2002 1 ILRM 481
SECRETARY OF STATE FOR WORK & PENSIONS v LASSAL 2011 AER (EC) 1169 2011 1 CMLR 31 2010 ECR I-9217 (CASE C162/09)
TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267
BRASSERIE DU PECHEUR SA CASE NO C-46/93 C-48/93 1996 ECR I-1029 1996 QB 404 1996 2 WLR 506
PINE VALLEY DEVELOPMENTS LTD v MIN ENVIRONMENT 1987 IR 23 1987 ILRM 747 1985/9/2700
MAXWELL v MIN FOR AGRICULTURE 1999 2 IR 474 1999 1 ILRM 161 1998/26/10264 1998 IEHC 136
TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 40(2)
EEC DIR 2004/38 RECITAL 17
EEC DIR 2004/38 RECITAL 18
EEC DIR 2004/38 RECITAL 19
EEC DIR 2004/38 ART 11
EEC DIR 2004/38 ART 38
EEC DIR 75/34
EEC DIR 2004/38 ART 17(1)
GUILD & ORS THE EU CITIZENSHIP DIRECTIVE A COMMENTARY 2014 177
CIVIL LIABILITY ACT 1961 S34
MCCORD v ELECTRICITY SUPPLY BOARD (ESB) 1980 ILRM 153
TAXES CONSOLIDATION ACT 1997 S123
TAXES CONSOLIDATION ACT 1997 S201
SULLIVAN v SOUTHERN HEALTH BOARD 1997 3 IR 123 1998/32/12464
NERNEY v THOMAS CROSBIE HOLDINGS LTD 2013 24 ELR 238 2013/39/11404 2013 IEHC 127
DEVLIN v NATIONAL MATERNITY HOSPITAL 2008 2 IR 222 2008 1 ILRM 401 2007/13/2739 2007 IESC 50
LARKIN v DUBLIN CITY COUNCIL 2008 1 IR 391 2007/34/6982 2007 IEHC 416
WALTER & RODRIGUEZ v CROSSAN HOMES LTD & ORS UNREP HOGAN 24.7.2014 2014 IEHC 377
COX v IRELAND & AG 1992 2 IR 503 1991 13 DULJ 118 1990/9/2569
GARVEY v IRELAND 1981 IR 75
HANRAHAN v MERCK SHARP & DOME (IRL) LTD 1988 ILRM 629 1988/5/1234
ADDIS v GRAMOPHONE CO LTD 1909 AC 488 1908-10 AER REP 1 101 LT 466
JOHNSON v UNISYS LTD 2003 1 AC 518 2001 2 WLR 1076 2001 2 AER 801 2001 UKHL 13
CLAYTON & JACK WALLER LTD v OLIVER 1930 AC 209 1930 AER REP 414 142 LT 585 46 TLR 230
MCDERMOTT CONTRACT LAW 2001 1132
MALIK & MAHMUD v BANK OF CREDIT & COMMERCE INTERNATIONAL SA 1998 AC 20 1997 3 AER 1 1997 3 WLR 95 1997 IRLR 462
CAREY v INDEPENDENT NEWSPAPERS (IRL) LTD 2004 3 IR 52 2004 ELR 45 2003/8/1650
GARVEY v IRELAND (NO 2) 1979 ILRM 266
BUCKLEY & ORS (SINN FEIN) v AG 1950 IR 67
DEFAMATION ACT 2009 S18
Wrongful Dismissal – Free Movement Directive (Directive 2004/38/EC) – Damages – Constitutional Rights – Breach of Union Law – Francovich principles – Permanent Resident – Citizenship – Employment Status
Facts: This case was concerned with the plaintiff who sought to sue the State for damages by reason of its failure to properly transpose or apply Article 16(2) of the Free Movement Directive (Directive 2004/38/EC)("the 2004 Directive") in national law by reference to the Francovich principles (Case C-6/90 and Case C-9/90 Francovich v. Italian Republic [1991] E.C.R. I – 5357). The plaintiff also sought damages for breach of his constitutional right to a good name as protected by Article 40.3.2 of the Constitution. The plaintiff, Mr. Ogieriakhi, was originally a Nigerian national, but since 2012 he has been an Irish citizen through naturalisation. This case, however, concerned events which took place immediately before and after October 2007 when the plaintiff was dismissed from his employment as a postal sorter with An Post on the sole ground that he could not establish at the time to the satisfaction of his employer that he had the right to work in the State. The plaintiff had claimed that he had acquired the status of permanent resident by virtue of his marriage to a Ms. Georges, a French national, who was employed in Ireland between the years 1999 to 2004. The plaintiff had himself originally arrived in Ireland in May 1998 whereupon he sought asylum. He married Ms. Georges in May 1999 and he then subsequently withdrew the asylum application. He was given a residence permit by the Minister for Justice on 11th October, 1999. In essence the plaintiff sought to sue the State in a Francovich-style action for damages claiming that the State failed properly to transpose the provisions of the 2004 Directive into domestic law or else to apply the Directive's provisions in a manner compatible with EU law. It was accepted that the plaintiff could only succeed in such a claim if it could be shown that Ireland failed properly to transpose or to apply the relevant provisions of Union law; that such a breach of Union law was a sufficiently serious one and that he or she suffered loss as a result.
Held by Justice Hogan in light of the available evidence and submissions presented that as Mr. Ogieriakhi had satisfied all three conditions prescribed in the Francovich test, he was entitled to damages for breach of Union law. Firstly, it was determined that the dismissal of the plaintiff from his position in An Post in 2007 resulted directly from the wrongful failure of the State properly to apply Article 16(2) of the 2004 Directive and was unlawful. Secondly, Justice Hogan was of the opinion that that breach must be regarded, when viewed objectively, as amounting to a serious breach of EU law within the meaning of the Francovich principles, as elaborated in decisions of the Court of Justice in cases such as Brasserie du pècheur and in Ogieriakhi. Thirdly, as the plaintiff was entitled to Francovich damages for breach of European law as against Ireland and the Attorney General, the Court measured that loss at €107,905. Fourthly, it was reasoned that the plaintiff was also entitled, at least in the special circumstances of the case, to sue directly for damages for breach of his constitutional right to a good name under Article 40.3.2, as the ordinary common law rules regarding claims for damages for breach of contract following the wrongful dismissal from employment – and reflected in cases such as Addis v. Gramophone Co. – would be "basically ineffective" to protect and to vindicate the right to a good name. Consequently, the Court awarded the plaintiff the sum of €20,000 under that heading. In sum, the Court accordingly made a total award of €127,905 by way of damages in favour of Mr. Ogieriakhi as against Ireland and the Attorney General.
1. This decision represents the latest stage of what has been a lengthy legal saga, the details of which will be set out at greater length in the course of this judgment. In essence, the plaintiff sues the State for damages by reason of its failure properly to transpose or apply Article 16(2) of the Free Movement Directive ( Directive 2004/38/EC)("the 2004 Directive") in national law by reference to the Francovich principles ( Case C-6/90 and Case C-9/90Francovich v. Italian Republic [1991] E.C.R. I - 5357). As this date has assumed a particular importance so far as this claim is concerned, it should be noted at the outset that Article 40.1 of the 2004 Directive specified that Member States were required to approximate their laws and practices to comply with its requirements by 30 th April 2006. The plaintiff also sues for damages for breach of his constitutional right to a good name as protected by Article 40.3.2 of the Constitution.
2. The plaintiff, Mr. Ogieriakhi, was originally a Nigerian national, but since 2012 he has been an Irish citizen through naturalisation. This case, however, concerns events which took place immediately before and after October 2007 when the plaintiff was dismissed from his employment as a postal sorter with An Post on the sole ground that he could not establish at the time to the satisfaction of his employer that he had the right to work in the State. It is important to state at the outset that the plaintiff was dismissed only by reason of his supposed lack of legal status and it was accepted that he was otherwise a diligent employee.
3. The plaintiff claimed that he had acquired the status of permanent resident by virtue of his marriage to a Ms. Georges, a French national, who was employed here (save for relatively short intervals) between the years 1999 to 2004. The plaintiff had himself originally arrived in Ireland in May 1998 whereupon he sought asylum. He married Ms. Laetitia Georges in May 1999 and he then subsequently withdrew the asylum application. He was given a residence permit by the Minister for Justice on 11 th October, 1999.
4. That marriage split up at some stage in late 2001 or by early 2002 at the latest. A few months thereafter Mr.Ogieriakhi left the accommodation in which he had previously been living with Ms. Georges in order to make a new life with an Irish national, Ms. Catherine Madden. Ms. Georges and Mr.Ogieriakhi divorced in January, 2009 and Mr.Ogieriakhi and Ms. Madden married later that year in June, 2009. Mr. Ogieriakhi and Ms. Madden have a daughter who was born in 2003.
5. Article 16(1) of the 2004 Directive provides:
"Union citizens who have resided legally for a continuous period of five years in the host Member States shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III."
6. Article 16(2) adds that:
"Paragraph 1 shall apply also to family...
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