As well as providing for free movement of European workers throughout the European Economic Area, Directive 2004/38 EC provides a matching right for their non-European “family members”, including spouses, to live and work in the same “host” member state.
Family members also have a right to be provided with residence documentation that proves their right to live and work in the host country. Although it is not compulsory to hold such residence documentation, it is in practice all but impossible to find work without it at a time when employers face stiff penalties for employing people illegally.
The Directive provides that residence documentation should be issued within 6 months, and that a “certificate of application” must be issued “immediately”.
Many applicants for residence cards in the UK have suffered over the years from unacceptably slow decision-making, incorrect or tardily-issued certificates of application, and poor quality decision-making. At the same time, almost all employers now require employees to prove their “right to work” using documents such as the residence card.
The result of these developments is that some applicants for residence cards (or for confirmation of a right of permanent residence, which accrues after 5 years in the UK in accordance with the relevant regulations) have been left unable to work for years at a time.
The Irish case of Ogieriakhi -v- Minister for Justice and Equality & Ors (No. 2) might offer some relief. Mr Ogieriakhi was a Nigerian national, married to a French woman. The couple moved to Ireland and lived there long enough for Mr Oghieriaki to acquire a right of permanent residence. He applied for residence documentation confirming that fact, which the Irish authorities refused to provide to him.
Ultimately Mr Oghieriaki succeeded in the courts, proving his right to permanent residence. He then brought a case for damages against the government. Mr Oghieriakhi was ultimately awarded over 100,000 Euros, for the 6 years when he had no proof of his right to work.
This is an Irish case and therefore not binding on the English and Welsh courts. However, the principles behind a case against a member state for breach of EU law are the same:
- the law infringed must be intended to confer rights on individuals
- the infringement must be sufficiently serious; and
- there must be a direct causal link between the breach of the obligation and the damage sustained
As with any potential claim for damages, claimants will need to consider seriously the strength of their case and the value of any potential damages, compared to the legal cost and stress involved in bringing the case, and the risk of having costs awarded against them if they lose. Nevertheless there may still be potential claimants for whom the Oghieriakhi decision confirms that it is possible to take on the state, and win.
The case is available on BAILII at: http://www.bailii.org/ie/cases/IEHC/2014/H582.html
If you have been affected by similar issues, or if you need advice on any other aspect of European free movement laws, please contact Kitty Falls or Laura Spencer at our Southampton office on 023 8022 1344.