The High Court has assessed damages of €21,877.44 for an anonymised international protection applicant whose labour market access was refused under rules the court found did not properly transpose an EU directive.
In a judgment delivered on 26 April 2023, Mr Justice Mark Heslin found that all three conditions for “Francovich” damages were met: the EU rule was intended to confer individual rights, the breach was sufficiently serious, and it directly caused loss. The ruling followed an earlier judgment in the case, delivered on 9 June 2022, which found that the applicant was entitled to relief against the refusal decision.
The judge rejected the respondents’ argument that the earlier decision had applied the directive itself rather than the Irish rules implementing it. He said the earlier judgment had found that the decision-maker had, in substance, applied Regulation 11(4)(b) of the 2018 Regulations. That provision includes the words “or attributed in part”, which do not appear in Article 15(1) of the directive. The court held that the added wording materially diluted the right to labour market access and amounted to a serious failure to transpose the directive properly.
The judge also declined to revisit those earlier findings during the resumed hearing, which concerned damages. The respondents had said they did not seek to dispute the earlier findings in that hearing, while reserving their right to appeal. The court said new arguments about transposition belonged in an appeal.
For the damages assessment, the court considered the applicant’s evidence that he worked without permission from 12 November 2020 to 1 January 2021, earning gross pay of €1,630.12 in one job and €2,217.50 in another. He received a labour market access certificate on 8 June 2022 and did not secure employment until the week beginning 6 February 2023. The court noted that he had been unemployed for almost eight months after receiving permission and found the accountant’s estimate of higher construction earnings too speculative.
The judge used €420.72, the applicant’s stated net pay for a week of later employment, as the weekly figure. From the 62-week period between the refusal decision and the earlier judgment, he deducted three weeks when the applicant had permission but had not secured work, and seven weeks when he had worked without permission. He therefore assessed damages at €420.72 multiplied by 52 weeks.
The court directed the parties to correspond about the precise form of order, including costs. If they cannot agree, they must file short written submissions within 14 days. The judgment did not settle costs or state that a final order had already been made.