As highlighted in previous Articles on our website, over the last two years Sinnott Solicitors have instituted High Court Judicial Review proceedings on behalf of clients in a number of cases seeking orders of Mandamus to compel the Visa Office to issue decisions on outstanding visa applications for family members of EU nationals. These applications were submitted pursuant to Council Directive 2004/38/EC and The European Communities (Free Movement of Persons) Regulations 2015 with the EU citizens already residing in the state exercising their EU Treaty Rights or intending to do so. We are aware of applications submitted over two years ago which are still awaiting decisions and unfortunately the delays at present continue.
In early 2016 The High Court directed that two of our cases be heard as test cases to determine how long the visa office can take to issue a decision on an application.
A judgement was delivered in the first test case on the 14th of October 2016 (Atif & Ors v Minister for Justice and Equality) with the judge ordering that a decision should issue on the application within six weeks of the court order.
A judgement was delivered in the second test case (Ahsan & Ors v Minister for Justice and Equality) on the 28th of October 2016 with the court again ordering that a decision should issue within six weeks of the date of the perfection of the court order.
The decisions of the High Court were subsequently appealed to the Court of Appeal by the Minister for Justice and Equality.
The appeals were heard before the Court of Appeal on the 15th of December 2017 before the President Mr Justice Ryan, Mr Justice Hogan and Mr Justice Peart.
Given the importance of the matter and the significant legal issues being litigated having regard to the practical implications and effects of key provisions of the 2004 Directive, the Court has decided to make a reference to the European Court of Justice in Luxembourg pursuant to Article 267 of the Treaty on the Functioning of the European Union.
The Article 267 reference procedure gives the Court of Justice jurisdiction to deliver preliminary rulings on the validity and interpretation of EU law in an EU member state. The primary purpose of Article 267 is to ensure that EU law has the same meaning and effect in all of the EU Member States and that the law is applied correctly.
The court delivered judgement on the 26th of January 2018 proposing the following draft questions to the Court of Justice:
- Is a member state in breach of the requirement in Article 5(2) of the Directive 2004/38/EC to issue a visa as quickly as possible to the spouse and family members of a Union citizen exercising free movement rights in the Member State in question where delays in processing such an application exceed 12 months or more?
- Is a member state entitled to delay processing or otherwise deciding on an application for a visa pursuant to Article 5(2) by reason of the necessity to ensure in particular by way of background checks that the application is not fraudulent or that the marriage amounts to a marriage of convenience, whether by virtue of Article 35 of the 2004 Directive or otherwise.
- Is a member entitled to delay processing or deciding on an application for a visa pursuant to Article 5(2) by reason of the necessity to conduct extensive background and security checks on persons coming from certain third countries pursuant because of specific concerns relating to security in respect of travellers coming from those third countries, whether by virtue of Article 35 of the 2004 Directive or otherwise.
- Is a member state entitled to delay processing or deciding on an application for a visa pursuant to Article 5(2) by reason of a sudden and unanticipated surge in such applications coming from certain third countries which are thought to present real security concerns.
These questions are draft questions at present and may be subject to change. Once the European Court of Justice issue a preliminary ruling on the questions raised the matter will then be remitted to the Court of Appeal who will issue a decision on the appeals.
Keep an eye on our website for further updates on the Article 267 reference as it progresses.