Ogieriakhi v Minister for Justice and Equality & Ors (No. 2) [2014] IEHC 582
In December 2014, the Irish High Court awarded damages of over
€100,000 against Ireland and the Attorney General to an
individual due to Ireland's breach of European Law. The
case is a rare example of a successful claim for damages against
the State, known as "Francovich" damages (after the
leading European case), arising from the failure of the State to
correctly incorporate a European Directive into Irish
law.
The success of this damages claim highlights the importance for
Ireland of correctly implementing and interpreting European
Directives.
In 2007, Mr Ogieriakhi, originally a Nigerian national, was
refused permanent residency in the State by the Minister for
Justice and Equality. He was subsequently dismissed from his
employment as a postal sorter with An Post on the sole ground that
he could not establish that he had the right to work in the
State.
Mr Ogieriakhi took a claim for damages against the Minister for
Justice and Equality, the Attorney General and An Post, on the
basis that the Minister's refusal to grant permanent residency
infringed European law.
Mr Ogieriakhi claimed that he was entitled to permanent residency
under Article 16(2) of the Free Movement Directive 2004.
Article 16(2) grants a right of permanent residence to a family
member of an EU citizen following a continuous period of residence
within the EU Member State for a five year period. Mr
Ogieriakhi claimed that he satisfied this criterion by his marriage
to a French national, who was employed in Ireland between the years
of 1999 and 2004. The couple had since separated (and
ultimately divorced) with Mr Ogieriakhi's former wife returning
to France.
The 2004 Directive came into force on 30 April 2006 and was
transposed into Irish law by regulations on 1 January 2007.
The Minister refused Mr Ogieriakhi's application for permanent
residency on the basis of an interpretation that Article 16(2) did
not apply to residency periods that pre-dated April 2006.
In considering whether to award Francovich damages the Irish Court
took account of three criteria:
- Whether Article 16(2) of the 2004 Directive conferred rights on the individual;
- Whether the breach of European law was sufficiently serious; and
- Whether there was a causal link between the breach of European law and the damage.
In relation to the first two criteria, the Court held that
Article 16(2) of the 2004 Directive did confer rights on the
individual and that the breach was objectively serious. The
Minister had breached Mr Ogieriakhi's rights as a result of a
misinterpretation of the 2004 Directive. It was irrelevant
that the Minister had acted honestly as the error in interpretation
was clearly at odds with the Directive's stated purpose.
The Court held that the third condition was satisfied as Mr
Ogieriakhi had lost his job because he could not establish a right
to work in the State. Mr Ogieriakhi was awarded damages
equivalent to six years of lost income, with a reduction for his
failure to mitigate his losses.
This case provides useful guidance on the approach of the Irish
Courts to claims for Francovich damages and may provide greater
clarity for future Francovich claims.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.