The Court of Appeal has set aside a High Court award of €107,905 in damages and €20,000 for breach of constitutional rights to Ewaen Fred Ogieriakhi, whose 2007 dismissal from An Post followed a dispute over his permission to work in Ireland.
The appeal concerned a High Court judgment of 22 December 2014. The High Court had found that the State’s failure to apply EU residence rules correctly led directly to Mr Ogieriakhi’s dismissal and amounted to a serious breach of EU law. The Court of Appeal held that the State’s error did not meet the legal threshold for damages under the principles established in the Francovich and Brasserie du Pêcheur cases.
Mr Ogieriakhi, a Nigerian national, had been granted permission to remain in Ireland as the spouse of French national Leatitia George. He began working for An Post in 2001. After the marriage broke down, the Minister refused his 2004 residence application. A later application for permanent residence was also refused under the State’s interpretation of the EU five-year residence rule. An Post dismissed him in October 2007 after he could not produce a work permit.
In 2010, the Court of Justice of the European Union ruled in Lassal that qualifying periods of residence completed before the EU directive’s transposition date had to be counted. In a separate 2014 ruling concerning Mr Ogieriakhi, the Court of Justice held that a non-EU spouse could qualify for permanent residence after five years even if the couple had separated and lived with other partners during that period. The Minister granted Mr Ogieriakhi permanent residence in November 2011.
The Court of Appeal said the State’s interpretation had been incorrect but was an honest and excusable mistake. It noted that officials believed the Irish rules reflected the directive, that other member states had taken a similar view, and that the State changed its approach after the Court of Justice’s ruling. The court said the High Court had identified the right legal test but had not applied it correctly.
It also overturned the constitutional damages award. The court found no evidence that the manner of dismissal was defamatory or humiliating: An Post had acted after obtaining legal advice and had said it would re-employ Mr Ogieriakhi if he obtained permission to work. It rejected the creation of a separate constitutional damages claim in these circumstances.
The court added that, even if damages had been payable, they should have been assessed only for net lost earnings between his dismissal on 24 October 2007 and An Post’s offer of reinstatement on 27 June 2008. Mr Ogieriakhi refused that offer. The court rejected his separate argument under Article 7 of Regulation 1612/68, finding it did not establish discrimination or an automatic right to further pay.
The Court of Appeal allowed the defendants’ appeal and set aside the High Court orders.