The Supreme Court has dismissed an appeal by Ewaen Fred Ogieriakhi, who sought damages after a mistaken interpretation of EU residence law led to his refusal of permission to remain in Ireland and the loss of his job with An Post.
In a judgment delivered on 13 July 2017, Ms Justice O’Malley said the appellant had been injured by the Minister’s error. But to recover damages under EU law, he had to show that the breach was sufficiently serious and inexcusable. The Court concluded that threshold was not met.
Mr Ogieriakhi, a Nigerian national, had lived in Ireland from 1998. He married a French national in 1999; she worked in the State until December 2004. He worked for An Post from 2001. The Minister refused his application for permanent residence in September 2007, taking the view that his right to remain depended on his wife continuing to exercise EU rights in Ireland. He was dismissed by An Post in October 2007 because he lacked a work permit.
The Court said the key issue was whether the five-year period of lawful residence completed before the 2006 EU directive and Irish regulations took effect could support permanent residence, despite the wife’s departure. It found that under the rules, she had acquired permanent residence on 30 April 2006 and could have returned to invoke it until December that year. The appellant’s residence rights derived from hers.
The High Court had awarded him €107,905 for loss of earnings and €20,000 for injury to his constitutional right to a good name. The Court of Appeal overturned both awards. The Supreme Court agreed that the EU law damages test was not satisfied: the relevant questions were complex and not expressly answered by the directive, so the Minister’s interpretation could not be called obviously wrong or inexcusable.
The Court also said that, even if EU damages liability had been established, the loss of earnings award could not stand as calculated. Mr Ogieriakhi had declined an offer of re-employment at an Employment Appeals Tribunal hearing in 2008. The Court considered that his refusal should have set the limit for assessing his loss; whether the offer’s lack of written form mattered was not decided as a standalone question.
On the domestic law claim, the Court found no defamatory aspect or reputational damage in the dismissal. It said Irish law could support an independent claim if separate conduct gave rise to one, but could not provide a free-standing damages remedy for a wrong arising solely under EU law when the EU damages criteria were not met. The Court dismissed the appeal.