Ogieriakhi v Minister for Justice and Equality

JurisdictionIreland
JudgeRyan P.
Judgment Date26 February 2016
Neutral Citation[2016] IECA 46
Date26 February 2016
CourtCourt of Appeal (Ireland)
Docket Number[2015 No. 51] High Court [2012 15 SP]

[2016] IECA 46

THE COURT OF APPEAL

Ryan P.

[2015 No. 51]

High Court [2012 15 SP]

The President

Peart J.

Irvine J.

BETWEEN
EWAEN FRED OGIERIAKHI
PLAINTIFF/RESPONDENT
AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND,
THE ATTORNEY GENERAL AND AN POST
DEFENDANT/APPELLANTS

Employment ? Dismissal from post ? Damages ? Failure by state to implement EU directive 2004/38 ? Whether respondent entitled to damages as result of failure

Facts: The respondents and appellant had been engaged in long running litigation in the State and ER Courts regarding his dismissal by An Post. The High Court in 2014 had found that the respondent was entitled to damages for the dismissal as a result of the State?s failure to implement Directive 2004/28 correctly. The appellants now sough to challenge that award.

Held by Mr. President Ryan that the appeal would be allowed. Having analysed the relevant principles of EU and national law, the Court was satisfied that the respondent?s claim for damages was flawed both in respect of the decision in Francovich C-6/90 and 9/90 and the Constitution. The trial judge had treated the matter as if an inadvertent error in implementing a Directive gave rise to a cause of action. This was not the case. Further, the method used to assess the amount of damages was itself flawed.

JUDGMENT of the Court delivered by the President on 26th February 2016
Introduction
1

This appeal is the latest step in a marathon of litigation in which the parties have been before three High Court judges, the Supreme Court, the European Court of Justice and now this Court over a period of more than ten years. The defendants seek to overturn the decision of the High Court of 22nd December 2014, awarding damages to the plaintiff for breach of European Union law and of his constitutional rights, arising from his dismissal from employment with the second defendant, An Post, in October, 2007.

2

Mr. Ogieriakhi has represented himself in all the courts, in addition to the Employment Appeals Tribunal. During the time that has elapsed since his dismissal, he has engaged successfully in legal studies and he is a candidate for a Doctorate-in-Law. His presentation of his case reflected great ability, legal ingenuity and no lack of advocate's passion.

3

In certain circumstances, an individual is entitled to recover damages against a Member State of the European Union for failure to implement a Directive, or for not implementing it properly if the person has suffered loss as a result and can establish that the failure represented a serious breach of Union law. The first issue that arises on this appeal is whether the plaintiff's claim fulfils the conditions necessary to recover damages. In fact, as will be seen, the central question is whether the admitted failure of the State to implement the relevant Directive fully according to the meaning definitively established by the Court of Justice constituted a serious breach of EU law. Secondly, the court has to consider whether the trial judge erred in awarding Mr. Ogieriakhi damages for breach of constitutional rights.

4

The plaintiff did not file notice of cross-appeal, but he argued in written submissions and oral argument that he was entitled to an award of damages that was many times greater than the High Court allowed.

Facts and Chronology
5

The best way of examining the case is to begin with the story of the events from Mr. Ogieriakhi's arrival in the State.

? 24th July 1998: The plaintiff, a Nigerian national, arrived in the State and sought asylum.

? 18th May 1999: The plaintiff married Ms. Leatitia George, a French national working in the State thereby exercising EU Treaty rights. Ms. George was employed in the State between 1999 and 2004, except for relatively short intervals (see para. 3 of High Court judgment). The plaintiff then withdrew his asylum application.

? 12th October 1999: The plaintiff was granted leave to remain in the State for an initial period of one year as spouse of EU national, under Regulation 1612/68; he was later granted permission to remain until 11th October 2004 because of marriage to Ms. George.

? 12th November 2001: The plaintiff began to work for An Post.

? December 2003: A daughter was born to plaintiff and Ms. Madden.

? 11th September 2004: The plaintiff applied to renew residency on the basis of marriage. The marriage had broken down in 2001 and plaintiff was now living with a new partner, Ms. Catherine Madden, and their Irish born (December 2003) child.

? 3rd November 2004: The Minister refused Mr. Ogieriakhi's application by reference to the provisions of Article 10 of the 1968 Regulation concerning a tenancy agreement and a current contract of employment of Ms. George. The plaintiff continued to work with An Post, but without a valid permit, which the employer did not know about. The plaintiff challenged the refusal of residency in judicial review proceedings.

? 11th March 2005: The High Court (MacMenamin J.) quashed the Minister's decision because of failure to take into account information that subsequently became available concerning Ms. George's employment.

? 13th April 2005: The Minister made a further decision rejecting the plaintiff's claim for residency on the ground that Article 10 of the 1968 Regulation required that Ms. George was currently exercising her EU Treaty rights by working or residing in the State and she had last worked in Ireland in December 2004.

? 30th April 2006: Directive 2004/38/EC was transposed into Irish law ? by S.I. 656/2006; Article 16 of 2004/38/EC: General rule for Union Citizens and their Family Members: Article 16 of 2004/38/EC: General rule for Union Citizens and their Family Members:

?1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.

2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.

3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.?

? 30th April 2006: This is the date when the plaintiff became entitled to permanent residency rights pursuant to Directive 2004/38/EC as it was subsequently held by the ECJ.

? 11th March 2007: Plaintiff applied for permanent residence under Directive 2004/38/EC which was implemented into the Irish law by S.I. 656/2006; this was based on his 5-year residency from 1999 to 2004.

? 9th May 2007: The High Court (MacMenamin J.) delivered a further judgment in which he rejected a claim for damages for breach of EU law in respect of the decision of 3rd November 2004 based on the Francovich case, holding that the court had simply decided that the determination was ultra vires; there was no manifest or grave disregarding of the limits of the exercise of discretionary State power; there was no finding of bad faith, malice or spite:

?There is no evidence either that the State engaged in breach of Community law in which it persisted despite the existence of a judgment establishing the infringement or by way of preliminary ruling or settled case law.?

The court also rejected a claim for damages for breach of domestic law, holding that there was no evidence of commission of a recognised tort, relying on the authority of Glencar Explorations plc v. Mayo County Council (No.2) [2002] 1 I.R. 84.

? 19th September 2007: The Department informed the plaintiff that his application for residency was incomplete and could not be considered. The Department interpreted the Directive as granting a right of permanent residence on the basis of a continuous 5-year period up to and including 30th April 2006, but not for the 5-year period that had expired before 30th April 2006. This meant that the plaintiff was not able to qualify under this interpretation.

? Date in late 2007: Plaintiff was featured in a newspaper article as being at risk of deportation and he was asked by An Post to produce his work permit which he was unable to do.

? 26th September 2007: Plaintiff instituted judicial review proceedings for a declaration that he was entitled to remain in the State under Directive 2004/38/EC and an order directing the Minister to grant him a residence permit.

? 24th October 2007: Plaintiff was dismissed from his position with An Post; the dismissal letter said that if he got a permit in future the company would re-employ him.

? 25th January 2008: High Court (Charleton J.) refused leave. The judge analysed the application of S.I. 656/2006 and Directive 2004/38/EEC and 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. The entitlement did not apply to residence in 2005 or 2006 unless it was a continuous period of five years. Because Ms. George was not in the State on 30thApril 2006, the plaintiff did not qualify for permanent residence under the terms of the new Directive and Regulations. This judgment was not challenged until 2011 after the decision of the ECJ in Secretary of State for Work and Pensions v. Lassal C ? 162/09 delivered on 7th October 2010.

? 4th April 2008: EAT Day 1 of 2. Plaintiff received a message by phone from the Department that he had been given Stamp 4 status. The Tribunal adjourned to obtain confirmation.

? 8th April 2008:...

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