Steve Peers

Although the Court of Justice of the European Union (CJEU) affirmed the right of individuals to sue Member States for damages resulting from breaches of EU law over two decades ago in the Francovich case, most subsequent lawsuits have been initiated by businesses seeking compensation for financial losses. The CJEU has yet to address a case involving damages claims related to the free movement of EU citizens.

However, the Irish High Court recently issued a judgment in the Ogieriakhi case, awarding over €100,000 to the family member of an EU citizen due to an infringement of EU free movement law. While this ruling does not set a legal precedent outside of Ireland, it offers valuable insights into how such claims might be pursued. This piece will explore the judgment’s potential relevance to ongoing UK breaches of EU free movement law.

Background

This Irish judgment stems from a CJEU ruling in the same case earlier last year. The CJEU had been asked to clarify aspects of substantive free movement law and damages. Mr. Ogieriakhi, an Irish citizen, had been married to a French citizen while residing in Ireland. During a period of separation from his wife, he began a relationship with an Irish woman. Eventually, he divorced his French spouse, married his Irish partner, and acquired Irish citizenship.

However, during his separation, Mr. Ogieriakhi was dismissed from his job at the Irish post office solely because of his perceived lack of legal employment authorization. He had been denied a renewed residence permit and was unsuccessful in his application for permanent residency under the EU citizens’ Directive. This Directive grants permanent residency to non-EU family members of EU citizens after five years of legal residence.

Following developments in CJEU case law, Mr. Ogieriakhi filed a claim for damages related to the loss of his employment. This prompted the High Court to seek clarification from the CJEU on matters of substantive free movement law and damages. The CJEU, drawing upon previous case law, determined that non-EU family members of EU citizens retain their free movement rights until the formal dissolution of the marriage. Additionally, it found that permanent residency could be granted based on time spent residing in a Member State before the April 30, 2006, deadline for implementing the EU citizens’ Directive, which introduced the concept of permanent residence. The Irish implementation of this Directive had adopted a more restrictive interpretation of this point.

The national judgment

The CJEU judgment unequivocally established Mr. Ogieriakhi’s entitlement to permanent residence status. While this finding holds significance for similar cases, it no longer directly impacted his immigration status since he had been granted both permanent residency and Irish citizenship in the interim. However, it remained highly relevant to his claim for damages.

High Court Judge Gerard Hogan applied EU law principles concerning damages. To support his claim, Mr. Ogieriakhi had to demonstrate: a breach of his rights granted under EU law, a sufficiently serious nature of the breach, and a direct causal link between the breach and the damages incurred. The CJEU’s judgment in this case addressed one aspect of the “sufficiently serious” criteria by stating that the mere act of a national court seeking interpretation of EU law from the CJEU does not inherently negate the seriousness of the breach.

In applying these principles, Judge Hogan determined that the permanent residence rules within the citizens’ Directive were intended to confer individual rights. CJEU case law on damages mandates a “manifest and grave disregard” for the limits of Member States’ discretion when evaluating the severity of a breach. Factors considered include the clarity and specificity of the infringed rule, the level of discretion afforded to Member States, the intent or excusability of the breach, the position of EU institutions, and existing CJEU case law on the matter. Continued national violations of EU law following a CJEU judgment invariably constitute a sufficiently serious breach.

In this instance, Judge Hogan concluded that the EU legislation was clear and precise, leaving no room for national discretion. Furthermore, he deemed the breach inexcusable. While the CJEU did not explicitly confirm the inclusion of pre-2006 periods of residence until 2010, the Directive’s wording should have made this evident. Finally, it was evident based on the facts that Mr. Ogieriakhi’s job loss was a direct result of the EU law violation.

The judge then calculated the damages owed to Mr. Ogieriakhi, who had been unable to secure employment due to the challenging economic conditions in Ireland. He was therefore eligible to claim several years of lost wages. However, a minor reduction was applied to the award due to his limited efforts to mitigate his losses. The final sum amounted to €107,905, representing six years of lost wages, plus an additional €20,000 for the violation of his Irish constitutional right to a good name.

Comments

This judgment underscores the significant impact of EU law on individual cases, especially those concerning the free movement of people. While €127,000 might appear insignificant to a large corporation, it represents a substantial amount for individuals of modest means like the Ogieriakhis. Furthermore, Mr. Ogieriakhi, who represented himself in the case, incurred no legal fees, underscoring the potential for individuals to successfully advocate for their rights. It is crucial to emphasize that this award should not be misconstrued as an unwarranted windfall but rather as rightful compensation for income lost due to an unlawful dismissal stemming from a breach of EU law.

This case holds broader implications for other EU free movement matters. Consider two examples: the situation of EU citizens residing in another Member State to be with family members who then wish to return to their home country with their families, and the circumstances of those seeking entry to the UK to visit family members who are non-EU nationals without first obtaining a visa.

In the first scenario, often referred to as Surinder Singh cases, the CJEU clarified last spring that, in principle, a three-month stay in another Member State exercising free movement rights with family members should suffice for a return to their home country. This ruling pertained to a Dutch case, and the implications in the Netherlands remain unclear. However, the UK government continues to employ a “center of life” test that appears to be more restrictive than the one outlined in the CJEU judgment.

Regarding the second scenario, the CJEU ruled in December in the McCarthy case that family members holding a residence card in their home country issued to family members of EU citizens should be exempt from visa requirements. This ruling stemmed from a UK reference, yet it has not been acted upon by UK courts, nor has the UK government, to my knowledge, modified its practices.

Let’s apply the EU damages principles to these two instances of breaches of EU law. In the first case, the right to return to the UK is grounded in the Treaty rules on the free movement of people, which are unequivocally intended to confer rights upon individuals. Any delays in returning to the UK with family are, in principle, a consequence of the UK’s improper application of EU law. However, there might be other contributing factors, such as securing employment, completing school years, etc.

The “sufficiently serious” criterion has been met since last year’s Court ruling. However, it was less clear-cut before that due to the absence of specific legislation on this issue and the lack of clarity prior to the Court’s judgment. Calculating damages resulting from the UK’s breach of EU law will be case-specific and potentially more challenging than in the Ogieriakhi judgment. In that case, the complete absence of work was directly attributed to the violation of EU law, making it relatively straightforward to calculate damages.

In the second scenario, the right to enter the UK without a visa is undoubtedly intended to confer rights upon individuals. Any expenses associated with obtaining a visa, primarily travel costs to a consulate, are directly attributable to the UK’s non-compliance with EU law. The violation of EU law has been deemed sufficiently serious since the McCarthy judgment. However, it can be argued that it was already sufficiently serious beforehand.

The citizens’ Directive unequivocally states that third-country nationals with residence cards are not subject to visa requirements. The Directive makes no provision for the UK’s practice of mandating a family permit as an additional prerequisite for a visa exemption. Furthermore, previous CJEU case law established that the “abuse of rights” concept is only applicable in specific cases.

As always, the information presented in this blog post does not constitute legal advice. It is strongly recommended that individuals considering legal action seek counsel from a qualified legal professional unless they are confident in their ability to represent themselves as effectively as Mr. Ogieriakhi did.

This post is not intended to solicit business but rather to raise awareness of the importance of upholding the rule of law. The UK government’s prolonged disregard for its legal obligations is unacceptable. Increasing legal actions aimed at compelling the UK government to fulfill its legal duties are imperative.

Barnard & Peers: chapter 6, chapter 13