Visa Processing Delays for family members of EU citizens – Decision of the High Court – Atif Mahmood & Shabina Atif v Minister for Justice and Equality
- Test case litigated on behalf of our client, a UK/EU citizen who is married to Pakistani national, who both want to move to Ireland.
- Court held that the fact the applicant was not yet residing in Ireland, as State had argued, did not inviolate his exercise of EU Treaty rights as intent to reside had been foreseen by the Directive.
- Major implications for timeliness of processing of family reunification visa requests.
- A further test case is pending from another applicant who is living in Ireland.
On 14 October 2016, Ms Justice Faherty delivered judgment in the High Court in the case of Atif Mahmood & Shabina Atif v Minister for Justice and Equality.
This case was instituted as a result of the ongoing delay by the Visa Office to process the visa application of the second named Applicant Ms Atif to accompany her husband to the state pursuant to Council Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015).
The Directive and Regulations govern the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States.
Judicial Review Proceedings
The first Applicant, a British and EU citizen, is married to the second Applicant, a Pakistani national. They were married on 9 August 2013 in Pakistan and submitted an application for Ms Atif to accompany her husband to the State on or about the 24 July 2015.
The first Applicant has not yet moved to the State and the application was submitted on the basis of his intention to move to Ireland in order to exercise his EU Treaty Rights.
As a result of the ongoing delay in the processing of their visa application, a delay which is currently being experienced by many Applicants with similar circumstances, High Court judicial review proceedings were instituted against the Minister for Justice seeking an order of mandamus directing the Respondent to determine the outstanding Irish visa application on behalf of the second named Applicant as a qualifying family member of the first Applicant within such period as the Court considered reasonable.
A number of similar cases were instituted in the High Court with this case being selected as the primary test case to litigate the legal issues involved. A separate judgment is awaited on a further test case where the EU citizens are residing in the State exercising their EU Treaty rights and this decision is expected in the coming weeks.
Rights of Entry under 2004 Directive.
Article 5 of the 2004 Directive clearly provides for the right of entry for visa required Non-European Economic Area family members of Union citizens to another EU member state.
Article 5(2) states that;
“Member states shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of accelerated procedure.”
Regulation 4(3)(b) of the European Communities (Free Movement of Persons) Regulations 2015 states that;
“The Minister shall grant qualifying family members every facility to obtain an Irish visa, and, on the basis of an accelerated process, consider an application for an Irish visa for an Irish visa from a qualifying family member …as soon as possible…”
It was submitted on behalf of the Applicants that the ongoing protracted delay on behalf of the Respondent to process the visa application was a clear breach of the rights of Applicants as clearly enshrined under European Union law as well as their rights to natural justice and constitutional fairness of procedures.
The Respondent argued that the Applicants could not benefit from the Directive given that the first named Applicant is not residing or established in the State, and moreover that visa applications from non-national family members of EU citizens continue to be processed on an ‘accelerated’ basis having regard to the processing system currently adopted by the Visa Office.
Demonstrating intention to travel
The court held that the provisions of the Directive anticipate such a scenario where an EU citizen has not yet moved to the State, but has demonstrated their intention to travel to the state in order to exercise their EU Treaty Rights thereby providing a derivative right of entry for a visa required qualifying family member accompanying the Union citizen to the host member state.
The court also held that the Applicants are entitled to treat the delay in the processing of the visa application as so unreasonable and egregious as to constitute a breach of the Directive and to justify the application for mandamus.
Finally, the court held that there will be an order directing the Respondent to take a decision on the second named Applicants’ visa application within six weeks of the perfection of the order.
Implications of Court Decision
We believe that this decision will have a significant impact on the processing times of visa applications to Ireland for Qualifying and Permitted family members of EU nationals.
We consider this judgement to be a very positive development for the many outstanding visa applications for family members of EU citizens currently waiting to be processed by the visa office.