L.K. v International Protection Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 26 April 2023
• Neutral Citation: [2023] IEHC 210
• Docket Number: Record no. 2021/353 JR
• Court: High Court

Between

L.K.

Applicant

and

International Protection Appeals Tribunal, The Minister for Justice, Ireland and The Attorney General

Respondents

[2023] IEHC 210

Record no. 2021/353 JR

THE HIGH COURT

JUDICIAL REVIEW

International protection – Labour market access – Judicial review – Applicant seeking damages – Whether the applicant was entitled to Francovich damages

Facts: The applicant sought a labour market access permit. The first respondent, the International Protection Appeals Tribunal, on 3 March 2021, found that the applicant was not entitled to access the labour market. The applicant challenged the refusal. On 9 June 2022, the High Court (Heslin J) held that the applicant was entitled to the reliefs sought: [2022] IEHC 441. A resumed hearing took place on 30 March 2023 during which arguments were made by both sides as to the applicant ’s entitlement, if any, to “Francovich” damages (Joined Cases C-6/90 and C–9/90 Francovich and Bonifaci & ors v Italian Republic [1991] ECR I-05357 and Joined Cases C–46/93 and C–48/93 Brasserie du Pêcheur SA v Federal Republic of Germany and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd & ors (no. 3) [1996] ECR I-01029). In the Supreme Court’s decision in Glegola v Minister for Social Protection [2019] 1 IR 539, O’Donnell J commented on the three conditions in a Francovich damages claim, as follows: “The jurisprudence is strict, in requiring, first, that the rule infringed must have been intended to confer rights on individuals, second that the breach of the rule was sufficiently serious, and third, that there is a direct causal link between the breach of the obligation imposed on the State and the damage sustained by the injured party” (p. 556). The respondents submitted that none of the three aforesaid conditions had been met by the applicant.

Held by Heslin J that Article 15 (1) of Council Directive 2013/33/EU of the European Parliament and of the Council of 26th June, 2013 creates an individual right in the sense understood in State liability case law. Heslin J held that the failure to properly transpose the Directive (by adding the words “or attributed in part” into the European Communities (Reception Conditions) Regulations 2018) comprised a manifest and sufficiently serious error. Heslin J held that the evidence before the Court allowed for a finding that the applicant had established a direct causal link between the breach and damage sustained by him. Heslin J came to the view that damages should be calculated by multiplying a weekly sum, by a number of weeks. As to the appropriate weekly sum, Heslin J noted that the maximum amount which the applicant had ever earned since receiving labour access permission (at a time when he was still resident in Dublin) was a sum of €420.72 per week. Taking everything into consideration, that seemed to Heslin J to be the appropriate weekly sum to employ. Heslin J held that it also had the benefit of being an established fact. It seemed to Heslin J that to take a different sum would be to engage in speculation beyond that which was permissible, and outside that which was reasonably foreseeable, given the state of the evidence. As to the multiplier, the starting point seemed to Heslin J to be 62 weeks. Taking everything into account, Heslin J proposed subtracting from the period of 62 weeks: (i) 3 weeks (i.e. the balance of June 2022 when the applicant continued to reside in Dublin, in possession of a labour market access certificate, but without securing construction or any other work); and (ii) 7 weeks (equivalent to the period 12 November 2020 to 1 January 2021, during which the applicant worked without permission).

Heslin J calculated the damages payable to the applicant as being €21,877.44.

Damages awarded to applicant.

JUDGMENT of Mr. Justice Mark Heslin delivered on the 26th day of April 2023

Introduction

1 . This decision must be read alongside the judgment delivered in this case on 9 June 2022, LK v. IPAT & Ors [2022] IEHC 441 (hereinafter “the judgment”). The underlying proceedings concerned a challenge to the refusal of a labour market access permit to someone who has applied for international protection. The impugned decision was made on 3 March 2021 (hereinafter “the decision”). For the reasons set out in the judgment, this Court held that the Applicant is entitled to the reliefs sought. A resumed hearing took place on 30 March 2023 during which arguments were made by both sides as to the Applicant's entitlement, if any, to “ Francovich” damages [see Joined Cases C-6/90 and C-9/90 Francovich and Bonifaci & ors v Italian Republic [1991] ECR I-05357 and Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Federal Republic of Germany and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd & ors (no.3) [1996] ECR I-01029].

2 . As I indicated at the conclusion of the resumed hearing, I am very grateful to Mr. Power SC (for the Applicant) and to Mr. Travers SC (for the Respondents) for the assistance they provided in terms of detailed submissions of great sophistication, both oral and written. I have carefully considered all submissions and, during the course of this decision, I will refer to the principal submissions and to certain authorities to which counsel very helpfully drew to the Court's attention and which, in my view, were of most assistance in determining the questions which arise in this ‘module’.

Francovich damages

3 . In Francovich, Italy failed to transpose Directive 80/987 which dealt with the protection of workers in the event of their employer becoming insolvent. The claimants were due monies by their employers, but the Member State had not implemented the said Directive as a consequence of which there was no guarantee scheme in respect of the wages payable. The claimants argued that the Directive was directly effective but, in the alternative, that Italy was liable in damages for failure to transpose the Directive in time. Although the Court held that the Directive was not directly effective in circumstances where it was insufficiently clear and did not identify the body to guarantee the wages in question, it held that it was a principle of Community law that Member States are obliged to make good loss and damage caused to individuals by breaches of Community law for which they can be held responsible.

Three conditions

4 . It is fair to say that, in order for a claim in damages to succeed, three conditions must be met. In the Supreme Court's decision in Glegola v. Minister for Social Protection [2019] 1 IR 539, O'Donnell J. (as he then was) commented on these three conditions in a Francovich damages claim, as follows:-

“23. The starting point for considering the award of [Francovich] damages is that it is decidedly not the case that the establishment of a breach of European Union law does not, as it might have done, give rise per se to an award of damages to a party who has suffered loss, or might have obtained a benefit under the relevant provision. The jurisprudence is strict, in requiring, first, that the rule infringed must have been intended to confer rights on individuals, second that the breach of the rule was sufficiently serious, and third, that there is a direct causal link between the breach of the obligation imposed on the State and the damage sustained by the injured party” (p. 556) (emphasis added).

Preliminary issue

5 . Whilst the Respondents submit that none of the three aforesaid conditions have been met by the Applicant, they argue, by way of a preliminary issue that:-

“…. the IPAT decision under review herein was entirely based on the wording contained in the Directive. Accordingly, whether the Directive had been correctly transposed into Irish law did not effectively arise herein. In essence the Court has been asked by the Applicant to make an order of certiorari quashing a decision which was based on an application of Article 15(1) of the Directive and not on how the Directive itself has been transposed into domestic legislation”. [see para. 3 of the respondent's written submissions].

6 . Building on the foregoing, the Respondents submit that the Applicant's claim for damages falls to be dismissed in limine, because, contend the Respondents, IPAT applied Article 15(1) of the Directive in the decision, not the implementing provision in the 2018 Regulations [see para. 6 of the Respondents' written submissions].

7 . Regardless of the undoubted sophistication with which they are made, the foregoing submissions are based on a misinterpretation of this Court's judgment, as illustrated by extracts from same (and page numbers are given, in circumstances where, between the approved judgment and the version published, certain paragraph numbering has gone awry):-

“ 107. In light of the foregoing, it seems to me that the delay which the decision maker in fact relied on was consistent, not with the wording in the Directive, but with the wording of Regulation 11(4)(b) of the 2018 Regulations. It seems to me that, in substance, the first named respondent, although purporting to rely only on the Directive and, no doubt, attempting to do so bona fide, in fact applied the wording found in the 2018 Regulations…” (p. 39);

117 …. In my view, there is a fundamental and material difference as between the wording found in Article 15(1) and that employed in Regulation 11 (4)(b) of the 2018 Regulations which amounts to a failure to properly transpose the former”. (p. 42).

“119 … For the reasons set out in this judgment, it seems to me that, whereas the First Named Respondent signalled an intention, doubtless genuinely held, to apply the Directive only, that was not achieved. I say this for two reasons. Firstly, in the manner previously examined, even if it is correct to describe the entire period from 2 September 2019 to 25 August 2020 as “delay” parts of same were, without...