Ogieriakhi -v- Mnister for Justice and Equality & Ors (No. 2), [2014] IEHC 582 (2014)

Docket Number:2012 15 SP
Party Name:Ogieriakhi, Mnister for Justice and Equality & Ors (No. 2)

THE HIGH COURT[2012 No. 15 SP]





JUDGMENT of Mr. Justice Hogan delivered on the 22nd December 2014

  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-9/90 Francovich 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 30th 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 11th 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.

    Article 16 of the 2004 Directive and the right of permanent residence

  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 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.”

  7. Article 16(4) further provides that:

    “Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period of exceeding two consecutive years.”

  8. The 2004 Directive came into force on 30th April, 2006. It was transposed into Irish law by the provisions of the European Communities (Free Movement of Persons)(No.2) Regulations 2006 (S.I. No. 656 of 2006), which came into force on 1st January 2007. If, therefore, Mr. Ogieriakhi’s residence within the State between 1999 and 2004 satisfies the requirements of the Directive, it follows that he would have been entitled to permanent residence within the State as and from that date.

  9. In these present proceedings the plaintiff now sues the State in a Francovich-style action for damages claiming that the State failed properly to transpose the provisions of Directive 2004/38/EC (“the 2004 Directive”) into domestic law or else to apply the Directive’s provisions in a manner compatible with EU law. It is accepted that the plaintiff can only succeed in such a claim if it can 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.

  10. The proceedings first came before me in early 2013. I took the view that as the plaintiff could not succeed unless he could show that he, in fact, had an entitlement to permanent residence by virtue of Article 16(2) and, specifically, that his five years pre-2006 residency here was by virtue of EU law. I accordingly decided to refer three separate questions to the Court of Justice pursuant to Article 267 TFEU: see Ogieriakhi v. Minister for Justice and Equality [2013] IEHC 133.

  11. By decision dated 10th July 2014 the Court of Justice ultimately ruled in the plaintiff’s favour so far as the proper interpretation of Article 16(2) of the 2004 Directive is concerned: see C-244/13 Ogieriakhi [2014] ECR I-2068. As that Court stated in its concluding summary of its decision:

    “Article 16(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that a third-country national who, during a continuous period of five years before the transposition date for that directive, has resided in a Member State as the spouse of a Union citizen working in that Member State, must be regarded as having acquired a right of permanent residence under that provision, even though, during that period, the spouses decided to separate and commenced residing with other partners, and the home occupied by that national was no longer provided or made available by his spouse with Union citizenship.”

  12. In the wake of that decision, it cannot be doubted but that the State failed properly to apply Union law insofar as Mr. Ogieriakhi was wrongly refused residency on the basis that such residency had concluded prior to 30 April 2006 and, indeed, this is no longer disputed by the defendants. The effect of the decision of the Court of Justice can be summarised by saying that as the plaintiff was previously married to an EU national for the period of five years in respect of which she had exercised her free movement rights in this State, he then became entitled to permanent residency in this State. Before considering the legal issues which now arise so far as this action for damages is concerned, it is necessary first to resume the narrative to recount events which took place between 2004 and 2011.

    The events between 2004 and 2011

  13. On 11th September, 2004, Mr.Ogierakhi presented himself to the Office of the Garda National Immigration Bureau for the purpose of having his resident’s permit renewed. On this occasion he was informed that Ms. Georges should attend in person at the office of the Bureau for the purpose of considering whether or not there was continuing compliance with the criteria laid down with regard to her erstwhile spouse’s residence in this jurisdiction. Mr. Ogierakhi replied in correspondence pointing out that he could not arrange for Ms. Georges to come to the Garda National Immigration Bureau for this purpose since they had agreed to live apart. This matter was then referred by the Gardaí to the Minister and Mr. Ogierakhi’s application was refused on 3rd November, 2004. The Minister refused Mr. Ogierakhi’s application because it would have been necessary to show in accordance with Article 10 of the 1968 Regulation that there was a tenancy agreement rent book in the name of either the applicant or his EU national spouse and details as would identify a current contract of employment on the part of Ms.Georges.

  14. This decision was subsequently successfully challenged by Mr.Ogierakhi in judicial review proceedings. In a decision of this Court delivered on 11th March, 2005, MacMenamin J. quashed the decision on the basis that the Minister had had no regard to information which had subsequently come to light to the effect that Ms. Georges was still in employment.

  15. On this point MacMenamin J. stated:-

    “Such investigations as have been carried out tend to indicate that the applicant’s spouse has in fact continuing connections with this jurisdiction, has worked here within the last year, has resided here and has availed of her rights as an EU citizen to draw social welfare here. In my view this information is relevant to a consideration of the applicant’s status. As is it plain such information has been adduced with a matter which was within the procurement of the respondent or other servants of the state, at the very minimum it would appear that such material would and should have a significant effect on the outcome of the decision to be made. I am satisfied that the absence of such information in the previous decision created a situation where there is an absence of fair procedures.”

  16. In the wake of that decision of this Court the Minister then made a further decision on 13th April 2005 rejecting the plaintiff’s claim for residency. The Minister held that in order for Mr. Ogieriakhi to qualify for residency under Article 10 of Regulation 1612/68 (EEC), it was necessary for him to demonstrate that his EU national spouse was currently exercising her EU Treaty rights by working or...

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