Ogieriakhi v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 05 March 2013
• Neutral Citation: [2013] IEHC 133
• Court: High Court
• Date: 05 March 2013

[2013] IEHC 133

THE HIGH COURT

Ogieriakhi v Min for Justice & Ors

[No. 15 SP/2012]

BETWEEN/

EWAEN FRED OGIERIAKHI

PLAINTIFF

AND

MINISTER FOR JUSTICE AND EQUALITY, IRELAND THE ATTORNEY GENERAL AND AN POST

DEFENDANTS

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

FRANCOVICH v ITALIAN REPUBLIC CASE NO C-6/90 C-9/90 1991 ECR I-5357 1993 2 CMLR 66 1995 ICR 722

EEC DIR 38/2004 ART 16

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 10(3)

EUROPEAN COMMISSION v FEDERAL REPUBLIC OF GERMANY CASE NO C-249/86 1989 ECR 1263

EEC DIR 38/2004 ART 16(1)

EEC DIR 38/2004 ART 16(2)

EEC DIR 38/2004 ART 16(4)

EEC REG 1612/68 ART 10

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS (NO 2) 2006 SI 656/2006

SECRETARY OF STATE FOR WORK & PENSIONS v LASSAL CASE NO C-162/09 2011 AER (EC) 1169 2011 1 CMLR 31

SECRETARY OF STATE FOR WORK AND PENSIONS v DIAS CASE NO C-325/09 2012 AER (EC) 199 2011 3 CMLR 1103

ZIOLKOWSKI v LAND BERLIN CASE NO C-424/10 C-425/10 2012 IMM AR 421

DIATTA v LAND BERLIN CASE C-267/83 1985 ECR 567

EEC REG 1612/68 ART 16(2)

EEC REG 1612/68 ART 10(3)

LAWRIE-BLUM v LAND BADEN-WURTTEMBERG CASE NO C-66/85 1986 ECR 2121

LECLERE v CAISSE NATIONALE DES PRESTATIONS FAMILIALES CASE NO C-43/99 2001 ECR I-4265

BRASSERIE DU PECHEUR SA CASE NO C-46/93 C-48/93 1996 ECR I-1029 1996 QB 404 1996 2 WLR 506

R v H M TREASURY EX PARTE BRITISH TELECOMMUNICATIONS LTD 1996 ECR 1631 1996 AER (EC) 411 1996 QB 615 1996 3 WLR 203 1996 2 CMLR 217 1996 IRLR 300

EUROPEAN UNION LAW

Free movement of persons

Directive - Transposition of European Union Directive - Damages - Right to permanent residence - Third country national family member - Whether Directive properly transposed - Whether residence with Union citizen for continuous period of five years - Whether move by third country national family member to new family home not supplied or provided by Union citizen satisfied requirements of Regulation 1612/68/EEC, art 10(3) - Whether necessity of a preliminary reference itself relevant factor in determining whether breach of Union law obvious - Francovich v Italian Republic (Joined Cases C-6/90 and C-9/90) [1991] ECR I-5357; Secretary of State for Work and Pensions v Lassal (Case C-162/09) [2010] ECR I-09217; Secretary of State for Work and Pensions v Dias (Case C-325/09) [2011] ECR I-000; Ziolkowski v Land Berlin (Case C-424/10) [2011] ECR I-000; Aissatou Diatta v Land Berlin (Case 267/83) [1985] ECR 567; European Commission v Federal Republic of Germany (Case C-249/86) [1989] ECR 1263; Brasserie du Pecheur SA v Bundesrepublik Deutschland (Joined Cases C-46/93 and C-48/93) [1996] ECR I- 1029 and R v HM Treasury, ex p British Telecommunications Ltd (Case C-392/93) [1996] ECR 1631 considered - Directive 2004/38/EC, art 16 - Regulation 1612/68/EEC, art 10(3) - Balance of action adjourned pending preliminary reference on three questions to the ECJ (2012/15SP - Hogan J - 5/3/2013) [2013] IEHC 133

Ogieriakhi v Minister for Justice and Equality

Facts: These proceedings were brought by the applicant in relation to permanent residency in Ireland, specifically whether the provisions of Directive 2004/38/EC ('the 2004 Directive') had not been properly adopted into domestic law. The plaintiff was a Nigerian national who arrived in Ireland in 1998 and immediately applied for asylum. He married a French national in May 1999 and so withdrew his asylum application. The couple separated in 2001 and eventually divorced in 2009. He then married an Irish national that same year before becoming an Irish citizen by naturalisation in 2012. The plaintiff was dismissed from his position at An Post in October 2007 on the basis that as a non-EEA national, he had no right to work without a work permit. He claimed that Article 16 of the 2004 directive meant that persons who had legally resided in a member state for a continuous period of 5 years were entitled to a right of permanent residence there. Further, Article 16(2) meant family members of a European Union citizen who were not nationals of the member state could also gain such a right if they legally resided with that citizen for a continuous period of 5 years. He claimed he had acquired such a right in 2004 which should have also given him a right to work in the state prior to his dismissal from An Post. His claim was for damages for this loss caused by the 2004 Directive not being properly adopted into Irish domestic law.

Held by Hogan J that in order for the plaintiff to succeed in his claim for damages, it would have to be shown that the provisions in question had not been properly adopted, that such failure was sufficiently serious, and that the plaintiff had suffered loss. The question of loss was not disputed as by losing his position at An Post, a loss had clearly been suffered. The focus was therefore on the first two considerations.

In terms of whether the plaintiff acquired a right of permanent residency, it was held that this depended largely on the movements of his first wife especially in light of the fact the couple had separated in 2001. It was determined that his first wife had lived continuously in Ireland during the five year period the plaintiff claimed created his right of permanent residency i.e. October 1999 -October 2004. However, the court wasn"t satisfied that s. 16(2) of the 2004 Directive had been complied with given the ambiguity over what residing with a European Union citizen actually entailed and the fact the pair lived apart from 2001. A reference was therefore made to the European Court of Justice pursuant to Article 267 of the Treaty on the Functioning of the European Union asking the question of whether a non-EU national who had separated from his Union citizen spouse could thereafter be said to be 'legally residing with that spouse' for the purposes of Article 16(2) of the 2004 Directive. The fact they had both began living with new partners by late 2002 was also deemed to a consideration that should be determined.

The defendant"s had also claimed that regardless of the answer to that question, there was no automatic entitlement for the plaintiff to permanent residency. It was claimed that Article 10 of the 1968 Regulation was the relevant provision legally in force pre-2006 (when the 2004 Directive came into effect) and it was not fulfilled as the plaintiff"s first wife was not a worker for the relevant 5 year period as required as well as the fact that housing was not supplied by the plaintiff"s wife to him following his departure from the family home. On the first matter, it was held that the plaintiff"s wife was a worker for the majority of the time period, and was only unemployed during a period of unprecedented unemployment in the country. She would therefore be considered a worker. On the second matter, it appeared to the court that the issue had not been dealt with by the European Court of Justice prior to the 2004 Directive coming into force and so that question should also be referred pursuant to Article 267 of the Treaty on the Functioning of the European Union.

Finally, the court also noted that even if the plaintiff was successful in establishing a failure to properly adopt the 2004 Directive, the defendant could still demonstrate the breach lacked obviousness. The court therefore also referred the question of whether the fact that the court had seen it necessary to refer the two other questions could be used to demonstrate the breach lacked obviousness.

The matter was therefore adjourned pending the outcome of the references to the European Court of Justice.

'Question 1

Can it be said that the spouse of an EU national who was not at the time himself a national of a Member State has 'legally resided with the Union citizen in the host Member State for a continuous period of five years' for the purposes of Article 16(2) of Directive 2004/38/EC, in circumstances where the couple had married in May 1999, where a right of residency was granted in October 1999 and where by early 2002 at the absolute latest the parties had agreed to live apart and where both spouses had commenced residing with entirely different partners by late 2002?

Question 2

If the answer to Question 1 is in the affirmative and bearing in mind that the third country national claiming a right to permanent residence pursuant to Article 16(2) based on five years continuous residence prior to April 2006 must also show that his or her residency was in compliance with, inter alia, the requirements of Article 10(3) of Regulation (EEC) No. 1612/68, does the fact that during the currency of that putative five year period the EU national left the family home and the third country national then commenced to reside with another individual in a new family home which was not supplied or provided for by (erstwhile) the EU national spouse mean that the requirements of Article 10(3) of Regulation 1612/68 are not thereby satisfied?

Question 3

If the answer to Question 1 is in the affirmative and the answer to Question 2 is in the negative, then for the purposes of assessing whether a Member State has wrongfully transposed or otherwise failed properly to apply the requirements of Article 16(2) of the 2004 Directive, is the fact that the national court hearing an action for damages for breach of Union law has found it necessary to make a reference on the substantive question of the plaintiff"s entitlement to permanent residence is itself a factor to which that court can have regard in determining whether the breach of Union law was an obvious one?'

1 1. It may seem curious that a simple idea which has been a core value of European Union law since the establishment of the original European Economic Community in 1957 - namely, the free movement of persons - should have given rise to a legal regime which has often proved to be highly complex in...