The High Court has referred three questions to the Court of Justice of the European Union in a damages action brought by former postal sorter Ewaen Fred Ogieriakhi, and adjourned the rest of the case pending its answers. The court did not decide whether he is entitled to damages.
Mr Justice Hogan’s judgment, delivered on 5 March 2013, concerns Mr Ogieriakhi’s claim that the State failed properly to implement EU free-movement rules. He says he had acquired a right of permanent residence and was therefore entitled to work without a permit. An Post dismissed him in October 2007 because, as a non-EEA national, he had no work permit. The judgment says that was the sole reason for his dismissal; the Employment Appeals Tribunal had found the dismissal was not unfair.
The court found that Mr Ogieriakhi’s former wife, French national Laetitia Georges, had legally lived in Ireland for five continuous years between October 1999 and October 2004 and had been a worker throughout that period. The judgment records that the couple separated by early 2002 at the latest and later lived with different partners. Mr Ogieriakhi lived with his current wife, Catherine Madden, in Lucan from about mid-2002 to 2005.
The dispute is whether those circumstances satisfy the EU rules. The State argued that Mr Ogieriakhi had to show not only lawful residence before April 2006, but residence meeting the then-applicable EU requirements. It submitted that Ms Georges was not a worker throughout the relevant period and that, after she left the family home, she did not provide or make available housing for him. The judge’s assessment was that the evidence showed she was a worker throughout the five years. He referred the separate questions about living apart and the housing requirement to the Court of Justice.
The third question concerns the damages test. Even if Mr Ogieriakhi establishes an EU-law breach, the judgment says he must still show that it was sufficiently serious. The judge asked whether the need to refer questions about his underlying residence rights could itself be considered when deciding whether any breach was obvious.
The court’s decision to refer the questions leaves the claim unresolved. The judgment says the damages action must fail if Mr Ogieriakhi was not entitled to permanent residence from 30 April 2006; even if he was entitled, damages would not automatically follow.