Claim for Damages
6. The applicants claim damages arising from the failure of the State to provide for their basic needs. They submitted that the criteria for an award of Francovich damages were met on the facts of these cases. Those criteria are set out in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur S.A. v. Germany and the Queen v Secretary of State for Transport, ex parte Factortame Ltd ("Brasserie/Factortame"), at para. 51:
" ...Community law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties."
7. The Court of Justice elaborated on the second limb (that the breach must be sufficiently serious) as follows (at paras 55 and 56):
"55. As to the second condition, as regards both Community liability under Article 215 and Member State liability for breaches of Community law, the decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion.
56. The factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law."
8. The State opposed the claims for damages on the basis that the failure to provide the applicants with accommodation, in particular, arose from the force majeure circumstances of saturation of available international protection accommodation capacity stemming from the huge influx of Ukrainian refugees arising from the war in Ukraine and an unexpectedly large increase in the numbers of other international protection applicants arriving in Ireland in the same period. The State contended that such circumstances were beyond its control and unavoidable and therefore provided a defence to the claim for Francovich damages within the second limb of the Brasserie du Pêcheur/Factortame test or otherwise. The applicants for their part maintained that a force majeure defence could not be invoked by the State.
9. After a hearing in November 2023, in a judgment delivered on 13 December 2023 ("my first judgment"), I referred the following questions to the CJEU:
(1) Where "force majeure" is not found as a defence in the Directive or implementing Regulations in issue, is such a defence nonetheless available as a defence to a Francovich damages claim for a breach of an EU law obligation that confers rights on individuals which derive from the fundamental right to human dignity contained in Article 1 of the Charter (whether as a defence within the second limb of the Brasserie du Pêcheur/Factortame test or otherwise)?
(2) If the answer to question (1) is "yes", what are the parameters and proper scope of that force majeure defence?
10. The CJEU in its judgment on the reference (Case C-97/24) of 1 August 2025 held, in response to the reference in these proceedings, that force majeure was not available as a defence in these proceedings.:
"58. EU law must be interpreted as meaning that a Member State which has not guaranteed, for a number of weeks, access by an applicant for international protection to the material reception conditions provided for by Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection may not avoid liability under EU law by pleading temporary exhaustion of the housing capacity normally available in its territory for applicants for international protection, owing to an influx of third-country nationals seeking temporary or international protection; an influx which, because of its significant and sudden nature, was unforeseeable and unavoidable."
11. The CJEU having determined that the State's breach of the Directive (and a fortiori of the Regulations) was "sufficiently serious" within the second limb of the Brasserie du Pêcheur/Factortome test, it is accepted by the State that all of the Francovich damages criteria are met. Accordingly, I now proceed to assess the damages to which the applicants are entitled for the breach by the State of its obligations to them pursuant to the Directive/Regulations and article 1 of the Charter.
IHREC case
12. It is perhaps useful at this juncture to address the judgment of the Court of Appeal in the case of Irish Human Rights and Equality Commission v Minister for Children, Equality, Disability, Integration and Youth [2025] IECA 156 ("the IHREC case"), which was handed down a day before the CJEU's judgment on the reference in this case.
13. In the IHREC case, (Anthony) Collins J for the Court of Appeal pointed out that a breach by the State of its obligations under the Directive and Regulations did not automatically entitle an applicant to damages for breach of article 1 of the Charter. As noted by Collins J. at para 43:
"The Court of Justice does not yet appear to have declared that Art. 1 creates a freestanding right capable of being relied upon before a court. It has nevertheless described its content in terms that are clearly capable of facilitating the judicial scrutiny and application of the right as so described. In para. 46 of Haqbin, the Grand Chamber of the Court of Justice held that: 'With regard specifically to the requirement to ensure a dignified standard of living, it is apparent from recital 35 of Directive 2013/33 that the Directive seeks to ensure full respect for human dignity and to promote the application, inter alia, of Article 1 of the Charter of Fundamental Rights and has to be implemented accordingly. In that regard, respect for human dignity within the meaning of that article requires the person concerned not finding himself or herself in a situation of extreme material poverty that does not allow that person to meet his or her most basic needs such as a place to live, food, clothing and personal hygiene, and that undermines his or her physical or mental health or puts that person in a state of degradation incompatible with human dignity (see, to that effect, judgment of 19 March 2019, Jawo, C‑163/17, EU:C:2019:218, paragraph 92 and the case-law cited)'."
14. Collins J. returned to the matter later in his judgment (at para 57) as follows:
"The test adumbrated in the case-law of the Court of Justice set out at paras. 38 to 51, above, requires that an individual establish both that s/he is in a situation of extreme material poverty that does not allow him/her to meet his or her most basic needs such as a place to live, food, clothing and personal hygiene and that such a situation undermines his or her physical or mental health or puts that person in a state of degradation incompatible with human dignity. According to my understanding of that test, a failure to provide an individual with the material reception conditions contained in the 2018 Regulations does not, in and of itself, establish that that person has suffered a breach of Art. 1 of the Charter".
15. On the facts of that case, which involved an application for, inter alia, damages for breach of article 1 of the Charter for a class of international protection applicants who had not been provided with material reception conditions, the Court of Appeal was not satisfied that sufficiently specific or detailed evidence had been put before the court to substantiate breaches of article 1 on the Haqbin test notwithstanding the admitted breaches of the Directive and Regulations.
16. It should be noted that the decision of the Court of Appeal is under appeal to the Supreme Court which has granted leave to appeal: see IHREC v Minister for Children, Equality, Disability, Integration and Youth [2025] IESCDET 142.
17. As the State had conceded breaches of both the Directive/Regulations and article 1 of the Charter in the cases before me, I proceed on the basis that the CJEU requirements for the breach of article 1 are accepted as met on the facts of the cases before me.
Range of damages cases before the High Court
18. As explained in my first judgment (at para 2), these two cases were chosen as test cases from a pool of some 50 such cases. The relevant case law, which I shall come to, explains that the assessment of compensation is necessarily fact sensitive to the particular case before the court. Mindful however of the potential precedential value of my judgment on the appropriate level of damages in these cases for the other cases in the pool of cases, I have sought insofar as possible to identify the general and specific factors which have influenced my assessment of damages. However it is of course important to emphasise that I am not seeking to set out any definitive level or band of appropriate damages in cases of this type; each case will depend on its own facts.
Applicable legal principles
19. As made clear in the ECJ's judgment in Francovich (at paras. 41 to 43), once the conditions for the availability of Francovich damages are established as a matter of EU law, the relevant Member State must make reparation for the consequences of the loss and damage caused by the relevant breaches in accordance with the Member State's domestic rules on liability. The ECJ has made clear that the conditions for reparation of loss and damage laid down by national law must not be less favourable than those relating to similar domestic Member States claims and must not be such as in practice to make it impossible or excessively difficult to obtain reparation (see Brasserie du Pêcheur, para. 67), i.e. the principles of equivalence and effectiveness apply.
Must Francovich damages have a deterrent component?
20. One issue that arose at the hearing before me was whether, as a matter of EU law, the award of damages in these cases should contain a deterrent element i.e. that a component of the damages awarded should be for the purposes of deterring the State from committing similar such breaches of EU law in the future.
21. The applicants contended that it was important that the awards of damages in these cases would contain a deterrent component. They relied in this regard on dicta in Case C-14/83 Von Colson. Von Colson was a case dealing with the principle of equal treatment for men and women in the workplace, pursuant to an EEC Directive. The relevant Directive gave discretion to Member States as regards the type of sanction for the breach of the prohibition on such discrimination which could be implemented by the Member State. In the context of an assessment of the legitimate parameters of such sanction mechanisms, the ECJ noted (at para. 28) that "If a Member State chooses to penalise breaches of that prohibition [of discrimination] by the award of compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as, for example, the reimbursement only of the expenses incurred in connection with the application".
22. In its subsequent judgment in Marshall v Southampton and South West Hampshire Area Health Authority Case C-271/91 (judgment of 2 August 1993) ("Marshall"), the ECJ stated that damages in the context of the Equal Protection Directive "must be such as to guarantee real and effective judicial protection and have a real deterrent effect on the employer", referencing para. 23 of Von Colson. As the court held in Marshall, at para. 26, where financial compensation is the measure adopted in order to achieve the objective of real equality of opportunity (being the objective of the relevant Equal Treatment Directive), "It must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules" (my emphasis).
23. In my view, these dicta do not support the view that such damages must contain a separate deterrent component in addition to a reparatory or compensatory amount of damages. Rather, the damages awarded must be genuinely reparatory and not nominal; if proper reparatory damages are awarded that of itself will have a deterrent effect. Put another way if the State is not required to properly compensate by way of damages a victim of a sufficiently serious breach by it of EU law for the damage actually caused by the breach, then such damages will not have a proper deterrent effect on potential future such breaches of EU law.
24. Such a view is also consistent with the recent CJEU decision in the UI Vösterreichische Post case C-300/21 (judgment of 4 May 2023) in the context of the right to compensation for damage caused by data processing which infringes the general data protection regulation (GDPR). There, the CJEU confirmed that it was not appropriate for a Member State to place a threshold of seriousness before awarding damages under article 82 of GDPR (which provides that "any person who has suffered material or non material damage as a result of infringement of this regulation shall have the right to receive compensation from the controller or processor for the damage suffered"). The CJEU held that national law could not preclude the compensation for non-material damage within Article 82 of the GDPR by introducing a condition that the damage suffered by the data subject had reached a certain degree of seriousness, i.e. the actual damage caused must be compensated for. It further held that, as regards the principle of effectiveness under EU law, in view of the compensatory function of the right to compensation under Article 82 of the GDPR, "Financial compensation based on that provision must be regarded as 'full and effective' if it allows the damage actually suffered as a result of the infringement of that Regulation to be compensated in its entirety without there being any need, for the purposes of such compensation for the damage in its entirety, to require the payment of punitive damages" (para. 58).
25. Accordingly, the appropriate approach, as a matter of EU law, is to provide damages by way of reparation or compensation for the loss actually suffered (whether pecuniary or non-pecuniary) as a result of the relevant breach of EU law. In assessing such reparation, there is ordinarily no role for an additional deterrent or punitive component. The damages must compensate the loss in full; nominal damages where actual loss has been incurred will not suffice. Ultimately, the assessment of damages will take place by reference to national law on the award of damages for equivalent breaches under national law.
26. Barrett J in X & Y v Minister for Justice [2019] IEHC 226 stated (at para 1):
"(8) There is a longstanding line of EU case-law tracing back to Case C-14/83 Von Colson and Kamann that the obligation to guarantee the full effectiveness of EU law requires that a sanction imposed by an EU Member State in the event of infringement of EU law must be such as to guarantee real and effective legal protection and have a deterrent effect.
(9) It is clear from, e.g., Joined Cases C-46 and C-48/93 Brasserie du Pêcheur and Factortame (Factortame IV) that the amount of damages levelled by a national court must be commensurate with the loss or damage sustained so as to ensure the effective protection of the rights of the injured parties."
27. This does no more than state, in accordance with the EU case law set out above, that the provision of a proper level of compensatory damages commensurate with the loss or damage sustained will of itself have a deterrent effect; as Barrett J noted it is clear from Brasserie du Pecheur that the amount of damages levelled by a national court must be commensurate with the loss or damage sustained so as to ensure the effective protection of the rights of the injured parties. It seems clear from the concise analysis by Barrett J of the factors going into his assessment of damages in that case (which also concerned a failure to provide material reception conditions), that he was properly focused on the loss actually suffered by the applicants. I do not read that judgement - or the relevant EU authorities referenced above - as providing for an approach to an assessment of compensatory damages which seeks to include some separate punitive or deterrent component.
Compensatory Nature of Francovich damages
28. Accordingly, I am satisfied that Francovich damages as a matter of EU law are intended to be reparatory or compensatory in the sense of putting the claimant in to the position, in so far as possible, that they would have been if the relevant breach of EU law had not been committed. The assessment of such damages is left to domestic law subject of course to the principles of effectiveness and equivalence. I therefore approach the matter on the basis that my task is to assess an appropriate level of compensatory damages for the non pecuniary losses suffered by the applicants as a result of the failure of the State to provide them with material reception conditions pursuant to the Directive and Regulations and the related breach of article 1 of the Charter.
29. While there has been a number of cases in which Francovich damages have been awarded in the Irish courts (I shall come to these cases shortly), none of the judgments in those cases contains any detailed consideration of the principles applicable to the calculation of such damages for non-pecuniary losses as a matter of Irish law.
30. All parties before me proceeded on the basis that the principles applicable to calculation of damages in Francovich cases were those set out by the Supreme Court in Simpson v Governor of Mountjoy [2020] 3 IR 122 ("Simpson") as being applicable to an assessment of damages for breach of constitutional rights. On the basis that the EU law requirements include that the domestic law on award of Francovich damages should comply with the principles of equivalence and effectiveness, I think that the parties were correct to adopt this approach given that a breach of EU law which confers rights on individuals can be safely analogised to a breach of constitutional rights in a domestic context, at least for the purposes of approaching an assessment of damages for non-pecuniary loss.
31. These principles were set out in Simpson by MacMenamin J. at para. 139 as follows:
"In considering the question of damages, it seems to me that a court may apply the following basic principles. First, there must be a restitutionary element, seeking to put a claimant in the same position as if his or her constitutional rights had not been infringed. Second, it is necessary to ask whether what arose in a particular case was not simply some procedural error. Third, a court's approach should be an equitable one, having regard to the particular facts of an individual case and the seriousness of the violation. Fourth, if and where necessary, a court awards damages under the various headings of the common law, such as non-pecuniary loss including pain, suffering, psychological harm, distress, frustration, inconvenience, humiliation, anxiety and loss of reputation. Fifth, punitive damages will not generally be awarded save in very grave cases, such as where there was a direct intent or purpose in bringing about a significant consequence or detriment."
32. As noted by MacMenamin J in Simpson (at para.140), these general tests are derived from those set out by Irvine J in Pullen v Dublin City Council [2010] 2 ILRM 61 ("Pullen") at para. 5.10. Pullen was a High Court case where Irvine J was dealing with a claim for damages under the European Convention of Human Rights Act, 2003 for violation of a Convention right. However, MacMenamin J stated that these guidelines "can also be guidelines in assessing what would be constitutional vindication".
Aggravated and Exemplary/Punitive damages
33. Before coming to assessing an appropriate level of compensatory damage in the cases before me, there were a number of other issues raised in written submissions and in the course of the hearing which I should address. While not formally pleaded, the applicants both made submissions that the facts of the cases were such as to justify the award of aggravated damages and/or exemplary damages. In fairness, these submissions were not vigorously pushed at the hearing before me. However, for completeness I will deal with them.
34. The tests for aggravated and punitive or exemplary damages are set out by Finlay CJ in Conway v INTO [1991] 2 IR 305 as follows:
"In respect of damages for tort or for breach of a constitutional right, three headings of damage in Irish law are, in my view, potentially relevant to any particular case. They are:
(1) ordinary compensatory damages being sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.
(2) Aggravated damages, being compensatory damages increased by reason of:
(a) the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or
(b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or
(c) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.
Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant.
(3) Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the court's particular disapproval of the defendant's conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered.
I have purposely used the above phrase 'punitive or exemplary damages' because I am forced to the conclusion that, notwithstanding relatively cogent reasons to the contrary, in our law punitive and exemplary damages must be recognised as constituting the same element."
Aggravated damages
35. As regards aggravated damages, I do not see that there was anything in the conduct by the State parties of these proceedings which would justify such an award. In fairness to the State, it admitted its breaches of the Directive and Regulations at an early stage and consented to declarations in relation to those breaches and also breaches of Article 1 of the Charter. The State engaged constructively in selecting test cases from a basket of similar cases and cooperated in these cases being prioritised for hearing. While the State robustly advanced the contention that the principles of force majeure were such that damages were not payable in these cases, I did conclude in my first judgment that that issue was not acte clair and referred a number of questions as a result to the CJEU. The State quite properly accepted that, as a result of the CJEU's answers to the questions referred, the applicants were, in principle, entitled to maintain the claim for Francovich damages. In the circumstances, I see no basis for any aggravated damages on the basis of how the State conducted itself in defence of these proceedings.
36. Complaint was also made on behalf of the applicants for the failure of the State to apologise in relation to its admitted breaches of its obligations to the applicants. As can be seen from the test set out by Finlay CJ in Conway v INTO a refusal to apologise after the commission of the wrong may be a basis for aggravated damages. However, the State through counsel did express sincere regret in relation to its failures to provide the applicants with their entitlements under the Directive and Regulations and admitted its breaches at an early stage. I do not see any basis for aggravated damages under this heading in the circumstances.
Punitive/exemplary damages
37. The applicant's case in punitive damages was based on a submission that the State deliberately chose to focus on collective accommodation solutions for international protection applicants at the expense of its obligation to source alternative individual accommodation solutions in kind and that such an approach necessarily led to the applicants being rendered street homeless.
38. They relied on observations I made in my first judgment that this was not a case where the State was pleading a lack of financial resources to honour its obligations under the Directive. As I stated, at para. 117 of my first judgment:
"While it is, of course, the case that Russia's invasion of Ukraine, and the resulting exodus of Ukrainian refugees to the rest of Europe (including Ireland) was unforeseeable, it might be said that the consequences of the need for ongoing extra accommodation capacity in the international protection system resulting from that invasion were not unforeseeable after a certain point in time. Accordingly, while it might be said to have been reasonable, in broad terms, for the State to focus on finding collective accommodation contract solutions to the capacity crisis it faced from January to June 2023, it might equally be considered that a more exacting appraisal of what was required from the State would have required the State (which had at its disposal sufficient financial resources) in addition to sourcing medium term collective solutions to also look at simultaneously maintaining its efforts to source private accommodation for individual applicants who were in fact or would otherwise be street homeless, whether by looking at accommodation vouchers, significantly enhanced financial assistance (above the DEA), the erection of secure emergency shelter (including possibly secure tented shelter) for short periods and the like."
39. It appears that the CJEU shared this view when at paras. 54 to 56 of its judgment it pointed out that the State had sufficient financial resources and referenced the fact that it was not apparent that the State had shown itself incapable of granting financial allowances or vouchers in an amount sufficient to ensure that international protection applicants had dignified living conditions.
40. MacMenamin J noted in Simpson (at para. 102) that, in distinction to Kennedy v Ireland and other decided authorities where damages were awarded for the violation of constitutional rights, Simpson was not a case where the infringement was directly intended or where there was some purposeful act or omission on the part of the authorities; rather, in that case (where the plaintiff had to endure in cell sanitation in a shared cell for a prolonged period), there was a negligent want of supervision and care on the part of the Prison Service.
41. As with Simpson, I am satisfied that this is not a case where punitive or exemplary damages would be justified. In the language of the fifth criterion of MacMenamin J. (set out at para 31 above) there was no direct intent or purpose on behalf of the State in bringing about the detriment which the applicants suffered. I accept the bona fides of the State's evidence to the effect that it was doing its best, as it saw it, to cope with an unprecedented explosion in the numbers coming to Ireland seeking temporary or international protection at the relevant times. In my view, such a decision was not improperly motivated or taken with a view to ensuring that applicants for international protection, such as the applicants in this case, would be rendered street homeless.
42. Accordingly, I do not believe that this is a case in which punitive or exemplary damages would be appropriate.
Declarations and Nominal Damages enough?
43. The State in its written submissions on quantum advanced the submission that declarations would be sufficient to vindicate the applicant's position and further argued that, if damages were to be awarded, such damages should be nominal.
44. The question of whether a mere declaration of breach of rights, and/or nominal damages, would be sufficient to mark a breach of constitutional rights was considered in the cases of both Simpson and GE v Commissioner of An Garda Siochána [2022] IESC 51, [2022] 2 ILRM 393 ("GE") (albeit in different contexts). In both cases, the Supreme Court held that nominal damages would not be a sufficient vindication of the breach of the plaintiffs' rights and awarded (or upheld an award) of compensatory damages.
45. In Simpson, the plaintiff endured seven and a half months of imprisonment in joint occupancy cells which lacked in-cell sanitation. He was in a lock-up regime which meant that he was frequently in his cell for 23 hours a day. The absence of in-cell sanitation in circumstances where the plaintiff both shared a cell and was, for substantial periods of time, unable to leave it, was held to represent a breach of his rights to privacy and the person as guaranteed in Article 40.3.2 of the Constitution. The High Court held that the plaintiff was entitled to a declaration as to breach of his constitutional rights but not damages; it appears that the trial judge refused to award the plaintiff any damages because he had lied and exaggerated in significant aspects of his claim (see judgement of MacMenamin J para 5). The Supreme Court held that notwithstanding his behaviour, the plaintiff was entitled to "moderate compensatory damages" (para 130) and awarded €7,500 damages for the breach of his rights, in addition to a declaration as to the infringement of his constitutional rights (para 131).
46. In GE, the plaintiff claimed damages for false imprisonment and breach of his right to liberty for a 26 day period on the basis that the warrant used to effect his arrest under Section 5(2) of the Immigration Act 2003 was defective as it should have recorded the fact that the plaintiff had been refused permission to land in the jurisdiction and it should have recorded that the reason for the arrest and detention of the plaintiff was that the immigration officer in question had reasonable cause to suspect that the plaintiff was a non-national who had been unlawfully in the State for a continuous period of less than three months. After his release on foot of an article 40 application he was re-arrested and detained on foot of a further detention order which contained the requisite information that had been absent from earlier detention orders made in respect of him.
47. The award of €7,500 made by the trial judge in the High Court to GE was less than he otherwise would have obtained in consequence of both exaggerations and lies in his evidence at trial and his overall conduct. The award was upheld by both the Court of Appeal and the Supreme Court. All three courts rejected a contention (based on the reasoning of the majority of the UK Supreme Court in Lumba v Secretary of State for the Home Department [2012] 1 AC 245) that GE was only entitled to nominal damages and not compensatory damages if it could be shown that had he not been unlawfully detained he could and would have been lawfully detained.
48. As Murray J noted (at para. 128) of his judgment in the Court of Appeal in in GE when MacMenamin J referred in Simpson to the award being "equitable", he made it clear that this included a consideration of the gravity of the breach: it was intended to reflect "that the seriousness of the violation requires more than a mere declaration" (at para. 126 of Simpson). MacMenamin J said (at para. 127 of Simpson, quoted by Murray J at para. 128 of GE) .
"An award of compensatory damages can serve a vindicatory purpose. It will recognise that what happened was wrong and did have an effect upon the appellant over and beyond other constitutional infringements where a declaration would be adequate. To mark the wrong in this case, therefore, the vindication must go further than a mere declaration and contain a just financial redress."
49. As Murray J notes, at para. 129 of GE:-
"The need to obtain 'vindication' of the right to an award of damages is thus related to the gravity of the breach, and its impact on the plaintiff. Where the breach has 'an effect' on the plaintiff, 'vindication' may require financial redress. Simpson and indeed many other cases in which damages have been awarded for breach of constitutional rights have arguably included within such an 'effect' mental distress and upset in a more generous and flexible way than the common law."
50. As Murray J notes in the same paragraph, "The guiding principle is directed by... placing the plaintiff in the position they would have been in had their constitutional rights not been violated".
51. Hogan J. in his judgment (at paras 53 to 56) in the Supreme Court was also clear that nominal damages would not be appropriate in cases involving breach of the constitutional right to liberty and held that the award of damages had a vindicatory element.
52. It will have been noted that one of the requirements for establishing an entitlement to Francovich damages is that the breach of the EU law right in question must have been "sufficiently serious". The CJEU in its judgment on the reference in this case was quite satisfied that the relevant breaches of right were "sufficiently serious" (paras 43 to 52). On the face of it, if an applicant for Francovich damages satisfies that criterion (in addition to the other criteria), they are likely to be in a position where a mere declaration that their rights have been breached will not be sufficient; their remedy as a matter of national law will likely require compensatory damages. Of course, however, the level of damages to be awarded will depend inter alia on the gravity of the breach, and its effect on the plaintiff.
53. I would prefer to hold over to a case in which the matter is more properly engaged the question of whether a breach of EU law, which met the criteria for an award of Francovich damages, could nonetheless sound only in nominal damages as a matter of domestic law. That issue does not arise on the facts of the cases before me as I am quite satisfied that the nature of the breaches and the effect of those breaches on the applicants were such, as a matter of national law, to warrant an award of compensatory damages which would not be met by an award of nominal damages.
54. The next question that arises is whether the level of damages should be "significant".
55. Despite some suggestions to the contrary in its written submissions, it was not ultimately contended by the State at the hearing before me on quantum in this matter that these applicants were not entitled to some damages. The State did urge that the damages be low, to reflect its submission that the breaches of the applicants' rights were on the low to moderate end of the scale and were for a limited duration, with no lasting adverse impact.
56. I note that Murray J held (at para. 130 of his Court of Appeal judgment in GE) that
"Simpson is important because it decides - contrary to a submission that lay at the heart of that case - that a finding that there has been a constitutional wrong does not automatically entail as its consequence 'significant damages' (at para. 48). The damages awarded in that case were, it should be stated, 'compensatory'. Although they were low, they were not nominal. Moreover, as of now, the case makes clear that Irish law does not recognise a species of 'vindicatory' damages comprising a distinct heading under which a monetary award would be made for the sole purpose of 'marking' a constitutional violation or to reflect the inherent value of a constitutional right that has been breached."
(although Murray J notes that the prospect of such an award might be enabled by the law has not been outruled).
57. Hogan J in his judgment in the Supreme Court in GE upheld the award of €7,500 and rejected the contention that nominal damages would be appropriate ("save perhaps where the false imprisonment in question is purely fleeting or technical") ([2022] IESC 51 at para 55; see also para 76). It should also be noted that the damages in GE would have been higher but for the plaintiff's behaviour in bringing about the state of affairs that led to his arrest - see discussion by Hogan J. at paras 59 to 75.
58. I conclude from the principles outlined in Simpson and GE that compensatory damages will inevitably follow for non-pecuniary loss for a significant breach of a constitutional right which has occurred over a reasonably lengthy period and which has a real effect on the plaintiff. The precise appropriate level of damages will depend on the particular facts of the case. This approach as a matter of domestic law necessarily informs my approach to the assessment of Francovich damages in the cases before me.
Irish and ECtHR precedents
59. In addition to a number of Francovich damages cases, the parties in their submissions drew my attention to a series of other Irish and European Court of Human Right judgments dealing with claims for damages for breach of constitutional and Convention rights. In truth, there was no directly comparable precedent. While I have had regard to the Irish precedents in particular, in terms of the sense they convey of appropriate levels of damages for breach of constitutional rights where there was no deliberate violation of rights, each case is ultimately fact sensitive. In the absence of reasonably comparable precedents, the authorities opened to me were of limited value. However, in deference to the submissions made, I will briefly summarise those cases.
60. It appears that, Francovich damages have been awarded in four cases by the High Court (with the Supreme Court overturning the finding of entitlement to Francovich damages in one of those cases). Those cases are as follows.
61. In LK v. IPAT [2023] IEHC 210, the High Court found that there had been a failure to correctly transpose and apply provisions of the Reception Conditions Directive 2013/33/EU (the same Directive in issue in the present cases). As a result of this failure, the applicant had been refused a labour market access permission. The High Court awarded the applicant Francovich damages in the sum of €21,877 which was his resulting loss of earnings (approx. €420 weekly salary x 52 weeks).
62. This was a similar approach to the calculation of quantum as that taken by the High Court in Ogieriakhi v Minister for Justice and Equality (No. 2) [2014] IEHC 582, both cases concerning claims of wrongful refusal of permission to work in the State and consequential loss of earnings although in Ogieriakhi both the Court of Appeal [2016] IECA 46 and the Supreme Court [2017] IESC 52 overturned the High Court's award on the basis that they were not satisfied that the Francovich criteria had been sufficiently made out.
63. As already noted, in X & Y v Minister for Justice [2019] IEHC 226 Barrett J awarded damages of €1,500 in respect of a failure to provide material reception conditions for a number of weeks including in respect of the stressful circumstances the applicants experienced as a result although the applicants (a mother and child) were never street homeless; they were able to stay with friends and, for a short period, in a hotel.
64. In P v. Chief Superintendent of the Garda National Immigration Bureau (O'Malley J., ruling of 10 June 2015), the High Court made an award of €30,000 in circumstances where it had been held in a previous judgment that the Human Trafficking Directive 2011/36/EU had not been adequately transposed, as there was no appropriate mechanism in national law for the identification of victims of trafficking ([2015] IEHC 222). There, the applicant had been found locked into a warehouse used for the cultivation of cannabis and had been in a distressed state. Rather than being assessed as a potential victim of human trafficking under the Directive, she was prosecuted on indictment for cannabis cultivation. She was detained in custody for a prolonged period. In its judgment on damages, the Court held "the applicant has been caused a degree of stress by reason of the prolonged uncertainty as to her fate and the fact that she has been in custody throughout. This has had an effect on her physical and mental health ... having regard to the attitude of the prosecuting officer and to the fact that she had no access to an address in the jurisdiction, it was reasonable of her advisers not to make a bail application at an earlier stage" (para. 4).
65. In addition to GE and Simpson, the parties drew my attention to a number of cases in which non-pecuniary damages were awarded for breach of constitutional rights, as follows.
66. In Kennedy v Ireland [1987] I.R. 587, the High Court held that the first two plaintiffs (journalists whose phones had been tapped) had their constitutional right to privacy breached in a conscious, deliberate and unjustified manner. The subsequent distress had been significant. The journalists were each awarded £20,000. There was an aggravated/exemplary component to those awards (see Hamilton P at 594) as the tapping had been conducted in deliberate breach of the plaintiffs' rights by an organ of State which was under a constitutional obligation to respect, vindicate and defend the plaintiffs' rights.
67. In Gulyas v Minister for Justice, Equality and Law Reform [2001] 3 IR 216, the (first) plaintiff was awarded £400 in special damages (being the price of her flight to Dublin) and £2,000 for in damages for the breach of her right to fair procedures which caused her disappointment and stress after being wrongfully refused entry to the State after landing in Dublin Airport.
68. In Raducan v Minister for Justice, Equality and Law Reform [2011] IEHC 225, Hogan J (in the High Court) awarded damages of €7,500 for the unlawful detention of the plaintiff for three days.
69. In Kessopersadh v Keating [2013] IEHC 317, O'Malley J (in the High Court) awarded the plaintiff husband and wife €50,000 damages for trespass and unlawful entry into their home by Gardai and the distress and anxiety caused thereby.
70. Pullen v. Dublin City Council [2010] 2 ILRM 61 (referenced earlier in this judgment) did not concern a claim for damages for breach of constitutional rights but rather concerned a claim for damages under section 3(2) of the European Convention on Human Rights Act 2003 by a Dublin family who had been subjected to eviction proceedings which were incompatible with Articles 6 and 8 ECHR. The High Court took account of the effect of the proceedings on the plaintiffs - especially the stress caused by the threat of homelessness - as well as their particular circumstances, including the fact that one of the parents was susceptible to depression, in awarding each of the plaintiff parents €20,000.
71. Ultimately, none of these cases deals with a directly comparable situation. Insofar as I find these authorities to be helpful, it seems to me that the Supreme Court judgments in Simpson and GE, which involved awards of damages for significant breaches of constitutional rights over a prolonged period, are perhaps the closest and most useful authorities in terms of an indicative sense of what appropriate damages might be in the cases before me. Those judgments of course have the added weight of being judgments of our highest court which were delivered relatively recently.
ECtHR precedent
72. The decisions of the European Court of Human Rights ("ECtHR") are of limited assistance as regards appropriate levels of damages in an Irish context. As a matter of law, MacMenamin J in Simpson (at para 128) stated that "Some comparison to ECtHR jurisprudence may be useful, even if only for the purposes of illustration" i.e. that compensation levels awarded by the court in Strasbourg are not binding as precedent on the Irish courts as such.
73. In Pullen (referred to above), which involved a claim for damages under the European Convention of Human Rights Act 2003, Irvine J noted that, by reasons of the provisions of s. 4 of that Act, the court, when considering its approach to the issue of damages, should have regard to the principles emerging from the decisions of the Strasbourg Court as to the damages to be awarded in respect of any breach of Convention rights. However, she noted the difficulties involved in approaching the measurement of such damages (at para 5.8):
"....The approach of the Strasbourg Court is dealt with in some detail in a substantial and helpful report published by the Law Commission and Scottish Law Commission entitled Damages under the Human Rights Act 1998, 2000 (Law Commission No 180, cm 4853). [5.9] The aforementioned report points to the lack of clear principles emerging from the Strasbourg Court as to when damages should be awarded and how they should be measured. This difficulty is partly ascribed to the diverse traditions within Europe as to how damages are calculated and also to the fact that the court itself is composed of judges from the Member States who represent these varied legal systems."
74. Bearing in mind these caveats to the usefulness of ECtHR awards as precedent, my attention was drawn to a number of that court's decisions where damages were awarded for breaches of the rights of international protection applicants, particularly where they had to endure periods of homelessness.
75. In NH and Others v. France, App Nos 28820/13, 75547/13 and 13114/15, the three applicants were asylum-seekers who were forced to live on the streets without resources or access to sanitary facilities and lacking any means of providing for their essential needs in breach of Article 3 ECHR. NH was awarded €10,000 for the period of nine months in which he was forced to live on the streets in conditions of 'extreme hardship'. The second applicant, KT, was awarded €10,000 for a period of "many" months living rough exacerbated by health problems, and a lengthy period without resources. The third applicant, AJ, was awarded €12,000 for being forced to live rough for 170 days and having no resources for 133 days.
76. In Khan v. France, App No 12267/16, the applicant arrived in France in 2015 as an unaccompanied minor and lived in a hut in the Calais 'jungle' encampment for a number of months where he faced appalling and dangerous conditions. The Court found that this was in breach of France's obligations under Article 3 ECHR, and awarded him €15,000 for non-pecuniary loss.
77. In VM v. Belgium, App No 60125/11, the Court (in a decision of 7 July 2015) found a violation of Article 3 where exclusion from reception conditions had exposed a Serbian family (two parents and five children, one of whom had died before the case came to the Court) to homelessness for four weeks, and awarded €22,750 in damages. The case was referred to the Grand Chamber, but the applicants' lawyer lost contact with the applicants, and so the case was struck out of the list and the chamber judgment did not become final.
78. In MSS v. Belgium and Greece, App No 30696/09, an Afghan asylum seeker who was detained for a few days and then left street homeless and destitute in Greece after transfer under the Dublin Regulation from Belgium was awarded €24,900 against Belgium in damages for inhuman and degrading treatment in breach of Article 3 ECHR on the basis that his transfer to Greece by Belgium exposed the applicant to treatment and conditions contrary to Article 3 once in Greece.
79. In M.L v Greece (8386/20) (judgment of 23 November 2023) the Strasbourg Court found a breach of Article 3 ECHR, in respect of a pregnant woman who had lived in the Samos Reception and Identification Centre in Greece apparently in a tent and then subsequently in an overcrowded container with no heating and limited or no sanitary facilities for 3 months between January 2020 and April 2020. The Court awarded €5,000 damages, in respect of non-pecuniary damages, against her claim for €12,000.
Assessment of Damages in these cases
80. I turn now to assessing an appropriate level of compensatory damages for the applicants on the facts of the case before me.
81. I would observe that there was a tendency for both parties in their submissions to interweave factors relevant to compensatory damages with those more relevant to questions of aggravated or exemplary damages (or defences to these latter categories of damages). As I am only concerned with compensatory damages, it is necessary to identify those factors which I did not believe were relevant to such assessment.
Factors not relevant to assessment of compensatory damages
82. The State suggested in its written submissions that its continuing and genuine efforts to accommodate all international protection applicants should be a factor in assessing damages. While I accept this submission as an answer to the applicants' claim for exemplary damages, I do not believe it is a relevant factor in the assessment of compensatory damages which should focus on the gravity of the breach and its effect on an individual claimant. The fact that the State was bona fide seeking to resolve the international protection applicant accommodation crisis by sourcing collective accommodation solutions was of course no help or comfort to these applicants when they found themselves having to survive on the streets for prolonged periods.
83. The State, in its written submissions, submitted that it was relevant to an assessment of damages to not inadvertently create a "pull" factor for international protection applicants in Member States where there are currently accommodation difficulties. This argument was not pushed at the oral hearing. Insofar as it suggested that compensation should be less than that otherwise available for the loss in fact suffered by the applicants, I do not accept this contention; the appropriate focus is on assessing reparation of the loss suffered by the applicants.
84. In its written submissions, the State submitted that a relevant factor in assessing the level of damages was whether the applicant passed through one or more Member States where international protection accommodation was not experiencing a comparable crisis, but nonetheless made a conscious, deliberate and voluntary choice to travel a further distance to Ireland. This was not pushed at the oral hearing as to quantum and I think sensibly so. I am concerned on the facts of the cases before me with an appropriate level of compensation for the damage to the applicants resulting from the State's failure to provide them with basic needs to which they were entitled in Ireland as bona fide applicants for international protection here.
Factors relevant to assessment of compensatory damages
85. As regards the Simpson principles, it is common case that the first principle applies, i.e. the damages must have a restitutionary element. As regards the second principle, it is common case that the breaches here were not simply arising from some procedural error but rather involved substantive breaches of the applicants' rights. The third principle, being the requirement that the court's approach be equitable having regard to the particular facts of an individual case and the seriousness of the violation, is accepted. It is also accepted, in accordance with the fourth principle, that damages are available for the non-pecuniary heads of loss advanced here, including pain, suffering, psychological harm, distress, frustration, inconvenience, humiliation and anxiety. As already discussed, punitive damages (addressed in the fifth principle) do not arise on the facts of these cases.
86. Before turning to address the individual circumstances of the applicants, and the steps (such as they were) taken by the State to ameliorate their suffering while street homeless, it is important to begin with an assessment of the gravity of the breach of rights involved.
87. I have regard to the fact that there was a serious breach by the State of the applicant's rights. While it is unhelpful to engage in an assessment of the hierarchy of rights involved, it is relevant to an assessment of damages that the provision of mandatory and minimum material reception conditions, including accommodation, under the Directive is intended to ensure respect for human dignity as guaranteed by Article 1 of the Charter (which provides that "Human dignity is inviolable. It must be respected and protected"). There is no doubt that the principle of respect for human dignity is an important and fundamental one and is, in its terms, inviolable.
88. The State expressed a concern in submissions that separate awards for breach of the Directive/Regulations and Article 1 of the Charter would represent double counting. It does not seem to me that separate awards for breach of the Directive/Regulations, on the one hand, and Article 1, on the other, are appropriate. While any award should reflect the fact that rights under both the Directive/Regulations and Article 1 of the Charter were breached (bearing in mind that the relevant provisions of the Directive and Regulations were intended to exemplify what was required in an international application context to ensure respect for human dignity as enshrined in Article 1 of the Charter), the breaches are intimately interconnected and derive from the same underlying facts. Even if a breach of article 1 had not been admitted, the applicants' rights which were breached under the Directive and Regulations are rooted in entitlements to basic needs of accommodation, food, clothing and hygiene and the failure to provide them with same was on any reasonable view a serious breach of rights.
89. In truth, it is difficult to see that the admitted breach of Article 1 of the Charter, on the particular facts of the cases before me, materially adds to the level of compensatory damages which would be appropriate for breach of the Directive/Regulations given the very specific evidence before the court as to both the extreme material poverty they endured and the extent to which the applicants' physical and mental health was undermined by the failure to provide them with their basic needs, in particular accommodation.
90. I turn now to the factors individual to the case of each of the applicants, which are material to an assessment of the appropriate level of compensatory damages.
Mr. A.
91. Mr. A. is a 25-year-old man from Afghanistan. He was forced to flee Afghanistan following events which involved the Taliban killing an older sibling, an incident which led to him being pursued by the Taliban (and a younger sibling being imprisoned and, ultimately, dying in prison). Mr. A. was injured in a very serious car accident in Hungary in January 2023 in which a number of people died. Mr. A. arrived in Ireland on 14 February 2023 and applied for international protection on 15 February 2023. As he did not have sufficient means to provide any adequate standard of living for himself in Ireland, it is accepted that he was entitled to material reception conditions under the Regulations, in particular accommodation, food, clothing and access to basic hygiene facilities.
92. In summary, Mr. A. was not provided with accommodation for 71 days. He was reduced to sleeping rough on the streets of Dublin in often wet and freezing weather. He was suffering physical pain from injuries sustained in his car accident and complex PTSD. He had suicidal ideation. His application to be treated as a vulnerable person pursuant to the Regulations was refused. He received a single Dunnes Stores voucher for €25 on 15 February. He did not receive his daily expenses allowance ("DEA"), which amounts to €5.54 per day, until 5 April 2023 (when he was given a payment backdated to 15 February) which meant that he went some 50 days with only a €25 voucher. He was finally accommodated on 27 April 2023 after 71 days on the streets.
93. On presentation to the International Protection Office (IPO) on 15 February 2023, Mr. A was told there was no accommodation available. He emailed the IPO and IPAS on the following day, 16 February 2023, stating "I'm sick, I don't have a place to stay, I can't sleep on the streets, my body is in a lot of pain, I am going to die". He received an email reply from the IPAS helpdesk stating that due "to the nationwide shortage of available accommodation for IP applicants, particularly single males, it was no longer possible to provide emergency shelter to IP adults". He was then told that he would be contacted as soon as accommodation became available.
94. Mr. A slept rough on the streets outside the IPO for a number of nights until he was moved on by the Gardaí after which he continued to sleep rough in various locations around Dublin city centre. He attended the office of the Irish Refugee Council ("IRC") and a solicitor with the IRC arranged for an email to be sent to IPAS on 24 February 2023 with an urgent request to provide accommodation to Mr. A. This email pointed out that Mr. A. was experiencing pain due to a hip injury, headaches and suicidal thoughts and that he had not received any payment as he was outside direct provision and so was in a situation of destitution.
95. This email was replied to by IPAS who explained that IPAS was currently in the midst of an acute accommodation shortage for international protection applicants, that they were working to accommodate such applicants as quickly as possible and that they were managing the situation on a "date of application basis". The email stated that the only exceptions to this were where there was "a particularly high level of vulnerability, such as a severe physical disability" with those cases being triaged on a case-by-case basis. The IRC replied by email on the same date informing IPAT of Mr. A.'s "particularly high level of vulnerability", with Mr. A. suffering severe pain in his head, chest, ribs and back as a result of the serious car accident he had been in while en route to Ireland (i.e. the accident in Hungary). The email stated the pain was sometimes at such a level that Mr. A. felt he could no longer cope and wanted to end his life. The IRC stated it had referred Mr. A. to health services which had provided him with pain medication and scheduled him a further assessment. It was pointed out that sleeping outside in cold weather conditions was aggravating his condition and, further, that Mr. A. was fearful that he would be attacked.
96. Mr. A was not ultimately assessed and treated as a vulnerable applicant.
97. The IRC provided Mr. A. with a list of charities in Dublin which provided meals and access to bathroom facilities and Mr. A. sought to avail of them while he was sleeping rough in Dublin city centre.
98. Mr. A. sent further emails to IPAS on 23 February 2023 and 27 February 2023. He received a standard response from IPAS on 2 March 2023. The IRC sent medical reports relating to Mr. A. to IPAS on 1 March 2023. These medical reports recorded the injuries he had sustained in the accident in Hungary and the severe headaches he had had since then, in addition to physical pain. Concussion was diagnosed. He was advised to attend a GP to have his symptoms monitored and to get a reference to neurology services.
99. Mr. A. says that he did not receive any information about food or hygiene/sanitation facilities from IPO or IPAS. He did not speak or understand English well. He says he was not informed of any entitlement to apply for the daily expense allowance for international protection applicants or the additional needs payment.
100. The weather at that time was very cold with a lot of wind and rain. On 23 February 2023, the temperature dropped to -1 degrees Celsius and to -2.7 degrees Celsius on 7 March. The temperature was as low as -4.3 degrees Celsius on 27 March. Mr. A. averred that sometimes he felt like he wanted to end his life. Living on the streets made him feel very stressed. On two different occasions, he called an ambulance given how bad he was feeling. He said that he was given a medical form to complete which required a GP signature, but he did not have access to a GP. He was concerned his belongings would be stolen and witnessed violence on the streets while sleeping rough.
101. After a number of weeks sleeping rough in Dublin city centre, Mr A. met some Afghan men who helped find him a multi-story carpark in north Dublin which he began to sleep in. He did have a number of nights where he was able to stay with these Afghan friends, but mostly he was sleeping in the carpark. He did feel safer there, but sleeping there did mean that he could not access the homeless supports in Dublin city centre. Sometimes he went two days without proper food because he could not afford to travel into the city centre or to buy food. He would buy some biscuits because they were cheap and sometimes his Afghan friends would bring him food. His food difficulties were exacerbated by the fact that he was fasting during the day during the period of Ramadan. He often went five or six days without showering or washing because it was very difficult to access facilities.
102. Mr A avers that:-
"The experience of sleeping rough in Dublin and Skerries was one of the worst times of my life. I was hungry, tired, cold, filthy and scared almost all the time. I found the whole experience humiliating. I find it very distressing to think back on the experience now after talking about it."
103. He applied for the DEA on 31 March 2023 (before then, the DEA could not be paid to people who were not in IPAS accommodation). He received a DEA payment of €315.90 on 5 April 2023 (three weeks before he was accommodated), which included payments backdated to 15 February 2023. This is a rate of €5.54 per day. As noted in my first judgment, the DEA was designed to be provided to international protection applicants living in direct provision i.e. to cover incidental personal expenses where their accommodation and food was already provided. He did not receive any additional needs payment ("ANP") while homeless.
104. Mr. A. received accommodation in Citywest Centre on 27 April 2023 after 71 days of street homelessness.
105. Mr. A was medically assessed on 8 August 2023 by Dr Nicola Cochrane of SafetyNet. SafetyNet is a service for vulnerable populations who cannot otherwise access primary health care. At the time of his assessment, he was living in emergency direct provision and awaiting assignment of a GP by the HSE. Dr. Cochrane provided a medical report dated 27 August 2023. At that time Mr. A. was assessed as having headaches most days worsening in intensity at times. He had pains in his chest stemming from the injuries sustained in the road traffic accident in Hungary. He complained of persistent low mood, increasing anxiety, recurrent suicidal thoughts and insomnia with nightmares. Dr. Cochrane reports that he became distressed and tearful when describing the deaths of his older and younger brother in Afghanistan. Dr. Cochrane was of the view that he had a severe depressive illness and that his symptoms were consistent with a diagnosis of complex post traumatic stress disorder. Mr A. admitted to a recent suicide attempt. She believed he needed urgent treatment for depression and psychological input for PTSD.
106. The State makes the point that this medical evidence does not suggest that his underlying physical and psychological/psychiatric conditions were caused by his period of street homelessness. Counsel for Mr A accepted that position but submitted that the failure of the State to accept him as a vulnerable person in need of prioritising for accommodation undoubtedly exacerbated his suffering during his 71 day period of street homelessness given his state of vulnerability. It seems to me that the contents of Dr Cochrane's medical report, while based on an assessment conducted a number of months after he had received accommodation, were consistent with the applicant's own description in his affidavits of his physical and mental state while homeless. There is little doubt but that his underlying physical and psychological vulnerabilities were exacerbated by the conditions he had to endure during the period of street homelessness.
107. I was told at the damages hearing that Mr. A had been granted international protection in this jurisdiction and is now working and thankfully has no long term effects from his period of street homelessness.
108. In assessing an appropriate level of compensatory damages for Mr. A, I have regard to the following factors:
(i) The nature of the rights breached, being rights intended to ensure that the basic needs of the applicants were met in a manner compatible with the requirements of human dignity.
(ii) The fact that he was in a particularly vulnerable physical and psychological state during the entire period of his street homelessness owing to the physical injuries sustained in a serious road traffic accident in Hungary a short time before arriving in Ireland and owing to the serious psychological trauma he was suffering as a result of the events he had experienced in Afghanistan, which included suicidal ideation. His situation could have been ameliorated by the State accepting that he was a vulnerable person and prioritising him for urgent accommodation; this did not happen.
(iii) That he was street homeless at a particularly cold and wet time of the year.
(iv) That the period of street homelessness, particularly given the time of year, was lengthy at 71 days.
(v) That he understandably lived in a state of fear while on the streets.
(vi) That he found the whole experience of homelessness humiliating and distressing.
(vii) That the State failed to provide him with any meaningful financial support at all in the first 50 days of his period of homeless and the financial support provided thereafter was insufficient to meet his basic needs.
(viii) That he did get a couple of nights accommodation and some food from fellow Afghan nationals while otherwise sleeping rough in North Dublin.
(ix) That credit should be given to the State in an equitable assessment of the overall circumstances for ensuring that experienced charity services were in a position to provide meals and some access to washing and sanitation facilities to people in the position of Mr A. The lack of financial assistance provided did mean however that Mr A was unable to travel from North Dublin (after he moved to sleep rough there to get away from the dangers of sleeping rough in the city centre) to avail of these services in any meaningful way.
109. I might observe that, from what the court has been told about the general range of cases before it taken by applicants for international protection whose rights under the Directive and Regulations were breached and who were rendered street homeless as a result, the circumstances of Mr A are undoubtedly on the more serious end of the scale.
110. In my view, the damages awarded to this applicant have to reflect the more heightened impact on him of the failure to provide him with material reception conditions, particularly accommodation, given his particular physical and psychological vulnerability over the 71 day period.
111. In the circumstances, in my view the appropriate level of compensatory damages for Mr. A. is €9,500.
Mr. J.
112. I turn now to the circumstances particular to the case of Mr J.
113. Mr. J. is a 22-year-old Christian man from India. He entered the State on 16 March 2023. He slept rough for a number of nights before presenting at the IPO office on 20 March 2023 when he claimed international protection. He claimed international protection on the basis that he was persecuted in India arising from his involvement in an inter-faith relationship. The persecution claimed by him included threats to kill him and his family, emanating from his partner's family, who are Muslim. He says he was forced to flee India and went to London where he lived for seventeen months. He came to Ireland to claim asylum, travelling from London to Dublin via Belfast.
114. As with Mr. A., Mr. J. was given a Dunnes Stores voucher for €25 on his initial presentation to the IPO on 20 March. He spent some 63 nights sleeping rough until he was granted accommodation on 22 May 2023.
115. He spent his nights sleeping on the streets of Dublin near the IPO offices in a tent provided to him by the Capuchin Centre. He averred that it was cold, wet and frightening. He feared each night that his tent would be set on fire by people who had targeted other international protection applicants. He was often hungry and averred that some days he had no access to food or money which left him "absolutely starving".
116. He submitted a vulnerability assessment form, with the help of his solicitors, on 16 May 2023. It appears that his application to be assessed as vulnerable was not accepted.
117. Mr. J. received a tent, food and clothes over the period he was street homeless from a charity. He says that he sometimes got food from the Capuchin Day Centre and the Merchant Quay Centre. There were some nights where both centres were closed and he had to use what little food he had on hand until one of the centres opened the next morning. He averred that:-
"While I was thankful to have these centres to go to while I was homeless, there were many other people using the facilities and I often waited hours just to take a shower or charge my phone. I felt very unclean most of the time and like I could never keep up with my hygiene due to my situation. This made me feel miserable most days."
118. Mr. J. says that he did not find out about the entitlement to DEA until 17 April 2023, which he then applied for. Mr J. received his DEA payment (of €5.54 per day/€38.80 per week) on 21 April 2023 which included payments backdated to 20 March 2023. This meant that he went a month with only a Dunnes Stores voucher of €25 and was entirely dependent on charity in this period. He said that:
"The €38.80 would not last me very long and I often had to make sacrifices as to what I could buy that week. While I needed clothes or toiletries, most of the time I would spend my money on food in case I could not get food from the centres."
119. Mr. J. made three applications for additional needs payments. The first was applied for and granted on 28 March, in the sum of €100. A second ANP application on 7 April was refused. A third application was made on 6 April and granted some 7 weeks later on 28 May, in the sum of €120, after he was accommodated.
120. Mr. J. averred that he became desperate and was scared for his future and his wellbeing. He felt alone and afraid. He averred that he had some very dark moments when he thought he could not go on. He felt worthless and did not think that it would ever change or get better. He averred that he could not sleep well in his tent because of the cold and wet weather. He developed serious digestive problems when living on the streets (he thinks through stress, worry and poor diet) and lost a lot of weight. He averred:-
"We were not offered any protection when we were living on the streets. On many nights racist individuals would come to the IPO building where we were living and threatened to burn down our tents. This was terrifying and I witnessed and heard them parading around the tents making rude and racist comments and threats."
121. Mr J. said that his backpack and belongings were stolen, leaving him with nothing. He said that the weekly payment of €38.80 was not enough to help him replace his belongings and that he was left wearing the same clothes for a month.
122. He averred that:
"My experience living on the streets was worse than anything I have ever experienced. It changed me forever. I do not feel like myself anymore. I feel like I lost my health, mental clarity and character."
123. Mr J. was provided with accommodation on 22 May 2023, after 63 days of street homelessness.
124. In assessing an appropriate level of compensatory damages for Mr. A, I have regard to the following factors:
(i) The nature of the rights breached, being rights intended to ensure that the basic needs of the applicants were met in a manner compatible with the requirements of human dignity.
(ii) That his period of street homelessness covered at least a significant period when it was a cold and wet time of the year.
(iii) That the period of street homelessness, particularly given the time of year, was lengthy at 63 days.
(iv) That he was subjected to racist abuse while on the streets and lived in constant fear of being attacked.
(v) That his period on the street caused him physical and mental stress.
(vi) That the State failed to provide him with any meaningful financial support at all in the first month of his period of street homelessness which led to him experiencing periods of real hunger; the financial support thereafter was insufficient to allow him meet his basic needs.
(vii) That credit should be given to the State in an equitable assessment of the overall circumstances for ensuring that experienced charity services were in a position to provide meals and reasonable access to washing and sanitation facilities which Mr J was able to avail to a reasonable extent at least during daytimes during the week.
125. In the circumstances, in my view the appropriate level of compensation damages for Mr J is a sum of €6,000.
Conclusion
126. I will, accordingly, grant the agreed declarations (as set out at para. 4 of this judgment above) and award damages to Mr A in the sum of €9,500 and damages to Mr J in the sum of €6,000.
BAILII: