State not liable after man lost job over mistaken application of directive

The State is not liable for damages to a Nigerian man who lost his job here due to the State’s incorrect application of residency requirements of the EU free movement directive, the Supreme Court has ruled.

Ewaen Fred Ogieriakhi, while “undoubtedly injured” by the State’s mistake because he lost his job and was threatened with deportation, was not entitled to damages for breach of EU law because he had not shown the State legal error causing his loss was “inexcusable”, the five judge court unanimously held.

The 2004 free movement directive, implemented here in 2006, provides for permanent residency for EU citizens and their family members in a member state where they have lived legally for five years.

Mr Ogieriakhi came here in 1998 and sought permanent residency on grounds of his 1999 marriage to a French woman then working here — from whom he later separated and who left in late 2004 — and his living here legally between 1999-2004.

In 2001, he began working for An Post, his marriage broke up and he had a daughter in 2003 with an Irish woman. After a refusal in 2004 to renew his permission to remain, he took High Court proceedings, and continued to work without a permit.

He was refused permanent residency in 2007 because the relevant Irish law incorrectly interpreted the right to remain as arising where an EU citizen member was legally residing here after the Directive came into effect in 2006. Because his EU citizen wife left here in late 2004, it was considered he did not meet the criteria.

He was dismissed by An Post in 2007 over not having a valid work permit but offered his job back in 2008 after getting permission to remain due to his stable relationship and paternity of an Irish citizen child. He declined An Post’s offer to return because he wanted to start his own business.

A decision of the Court of Justice of the EU of 2010 held, for the purposes of the directive, member states must grant residency to an EU citizen or family member living in the State legally for five years up to 2006. After that decision, Mr Ogieriakhi got permanent residency in 2011 and in 2012 sued the State for damages over loss of income and breach of rights.

On Thursday, Ms Justice Iseult O’Malley gave the Supreme Court judgment dismissing his appeal against a Court of Appeal decision overturning an earlier High Court award of some €107,000 damages to him against the State over income loss suffered due to incorrect application of EU law, plus €20,000 over breach of his constitutional right to his good name.

Had the correct view been taken of Mr Ogieriakhi’s application, it would have been clear he was entitled to permanent residence and entitled to continue to work without a work permit, she said.

However, in the circumstances of his case, the appellant had not shown the interpretation error was “inexcusable”, she held. The fact his wife left the State in December 2004, and the couple had separated and were not living together before she left, gave rise to complex considerations not expressly covered by the terms of the Directive.

In this case, it cannot be said the directive was so clear and precise as to render the error of the State authorities “grave and manifest” or “inexcusable”.

Even if the relevant criteria for damages were met, the High Court award could not be upheld for reasons including Mr Ogieriakhi was offered his job back and, had he accepted, any damages would be limited to the loss of one year’s employment.

No right of his under Irish law was infringed to give rise to a right to damages under domestic law and the High Court erred in awarding €20,000 damages for breach of his constitutional right to his good name, she also held. There was no defamatory aspect and no reputational damage involved in his dismissal from An Post which arose due to not having a work permit.

There is no “free standing” right to damages under national law where the criteria for damages for a wrong done under EU law are not satisfied, she said.

She also refused to refer issues in the case for determination by the CJEU.