dreamstime_xxl_87113124

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 Equalitywith 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:

  1. 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?
  2. 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.
  3. 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.
  4. 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 issues 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.

visa-ireland

If you are the family member of an EU/EEA/Swiss citizen who is moving to or residing in Ireland (pursuant to the Directive 2004/38/EC) and you wish to accompany them or join them in Ireland, you can apply for a single journey short-stay C visa which will permit you to enter and reside in the country for up to 3 months.

Who qualifies for a family visa?

Applications for a visa can be submitted by qualifying family members or permitted family members.

A qualifying family member is either;

  • A spouse
  • Child under 21 years
  • Child under 21 years of the spouse
  • Adopted child
  • Dependent parent
  • Dependent parent of the spouse
  • Other dependent family members in the direct ascending line ( e.g. grandparent) or descending line (e.g. grandchild)
  • Other dependent family members of the spouse in the direct ascending (e.g. grandparent) or descending line ( e.g. grandchild).

Permitted family members include any other family members who are dependent on the EU citizen in their country of origin or the partner with whom the EU citizen has a durable genuine relationship.

How do I apply?

In order to apply for a visa to accompany or join a family member in the state you must first complete the short online form on the Irish Naturalisation and Immigration Service website.

When you have completed the online application process, you must follow the instructions on the summary application form that is created by the online system.

The summary form will contain information on where you are to submit your supporting documentation, usually the nearest Irish Embassy or Consulate in your country or a Visa Application Centre in certain countries*.

*If you are a national of India, Pakistan or Nigeria you are required to provide your biometric fingerprints at your nearest Visa Processing Centre as part of the visa application process.

In order to obtain a visa pursuant to the Free Movement of Workers Directive you must submit documentary evidence to establish identity including;

  • valid passports
  • evidence of the relationship (marriage certificate, birth certificates, family certificates)
  • evidence that the EU citizen is exercising free movement (evidence that the EU citizen is already residing in Ireland or intends to travel to Ireland)
  • and evidence of membership of the household of the EU citizen where applicable.

While Applicants can be requested to provide specific documents to prove that they are beneficiaries of the Directive, the visa officer cannot refuse other means of proof.

The documentary evidence required to be submitted can vary according to the circumstances of each case.

If you are a ‘qualifying family member’ of an EU/EEA /Swiss Citizen you are exempt from the visa fee and your application must be processed by way of accelerated process within a period of three to four weeks from the time that the application is first received in an Irish Embassy/Consulate or Visa Office.

If you are a family member other than a ‘qualifying family member’ you are required to pay the visa application fee. Applications from qualifying family members are not processed by way of accelerated process and the processing times of these applications vary.

What happens after the visa is granted?

Once you been granted entry to Ireland pursuant to the terms of your visa and you wish to reside here for longer than three months, you should submit an application to the Department of Justice and Equality for a five year residence card as the family member of an EU/EEA national who is exercising their EU Treaty rights in the state (as a worker, self-employed person, a student, or an individual residing with sufficient resources).

EU

The Free Movement Rights Directive 2004/38/EC governs family reunification for EU citizens exercising their EU Treaty Rights in another EU member state.

For example, this might apply to say a British citizen who is residing in Ireland exercising their EU Treaty Rights who wants to be accompanied or joined in the state by a family member who is not a citizen of the European Union.

EU citizens and their family members have a right of residence, under Article 6 of the Directive, for up to three months in another EU member state without any conditions.

In order to qualify for a visa to Ireland under the Directive (Free Movement of Workers) the Applicant must prove that they are either;

(i) a qualifying family member or

(ii) a permitted family member, of an EU citizen exercising or planning to exercise free movement rights.

 

Qualifying Family Members include:

(i) the spouse of the EU citizen

(ii) the partner of the EU citizen where the State recognised the registered partnership as equivalent to marriage (this is same sex partners only in Ireland)

(iii) direct descendants (sons, daughters, grandsons, granddaughters) of the EU citizen and/or their spouse or partner under the age of 21

(iv) direct descendants over the age of 21 where they are dependent on the EU Citizen and/or their spouse or partner

(v) parents and grandparents of the EU citizen and the spouse or partner where they are dependent on the EU citizen and/or their spouse or partner

 

Permitted family members include:

(i) other family members who, in the country from which they have come, are dependants of members of the household of the EU citizen. The level of dependency must be sufficient to render independent living by the family member in their home country impossible if that financial and social support were not maintained.

(ii) the partner with whom the EU citizen has a duly attested durable relationship. This requires a relationship for a period longer than two years.

 

The Applicant must prove:

(i) that there is an EU citizen from whom they can derive rights from under the Directive;

(ii) the existence of the required relationship as either a qualifying or permitted family member;

(iii) that they will be accompanying or joining an EU citizen who is or will be exercising free movement rights at the time of the arrival of the family member in Ireland. The EU citizen must be working or self-employed or in a full-time course of study and have sufficient resources to support themselves and their family members without recourse to public funds.

 

The proofs that are required are:

(i) proof of identity – e.g valid passports or national identity cars for the Applicant and the EU citizen;

(ii) proof of the required relationship – e.g.  birth certificate or a marriage certificate, civil partnership certificate;

(iii) for a permitted family member, proof of dependency or membership of the household of the EU citizen.

(iv) proof that the EU citizen is exercising or planning to exercise the free movement rights in Ireland (employment/self-employment/student/residing with sufficient resources) at the time of arrival of the Applicant family member (e.g proof of travel to Ireland ).

 

Refusals can be made on the following grounds:

(i) failure to prove that they are a beneficiary of the Directive ( that they are a qualifying/permitted family member of an EU citizen who is exercising/planning to exercise their free movement rights and they are planning to accompany or join the EU citizen);

(ii) The State proves that the conduct of the applicant is a genuine, present and sufficiently serious to public policy, public security or public health; or

(iii) The State proves that there was an abuse of rights or fraud. If supporting documents can be shown to be frauds or fraudulently altered, then they cannot be relied upon and would be used to support a refusal.

Ireland does not recognise polygamous marriages so this form of marriage would not prove the family relationship.

Forced marriages are also not recognised under Irish law and would therefore not prove the family relationship.

Marriages including a person under the legal age of marriage in Ireland may be allowed if the legal age was met in the country where the marriage was entered into.

 

If the visa application is refused, the Applicant can appeal the refusal within two months of the date of the decision or alternatively submit a new application if they so wish.

 

It is important to address the reasons for the original refusal in any appeal.  If the application is further refused on appeal then the only other appeal mechanism is by way of Judicial Review to the High Court provided there are grounds to merit any such application.

Applications from qualifying family members must be processed within four weeks from the time that the application is first received. The visas issued to qualifying family members should be free of charge. Applications from permitted family members may take longer than four weeks and the normal fees apply to these visa applications.

The Applicant will be granted a  single entry C Visa to enter the State if the visa is approved.

If the Applicant wishes to reside in Ireland for more than three months, then they should make an application* (when in the State) for a residence card of a family member of an EU citizen exercising their EU Treaty Rights in the state.

*This Application is made on a Form EU1 submitted to the EU Treaty Rights Section, Irish Naturalisation and Immigration Service, 13 – 14 Burgh Quay, Dublin 2.

As Immigration and Visa experts, Sinnott Solicitors can guide you through every stage of the visa application offering you expert legal advise and assistance. Call us today on +353-1-4062862

Family Visa Delays
dreamstime_xxl_87113124

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 Equalitywith 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:

  1. 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?
  2. 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.
  3. 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.
  4. 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 issues 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.

Family Visa Applications
visa-ireland

If you are the family member of an EU/EEA/Swiss citizen who is moving to or residing in Ireland (pursuant to the Directive 2004/38/EC) and you wish to accompany them or join them in Ireland, you can apply for a single journey short-stay C visa which will permit you to enter and reside in the country for up to 3 months.

Who qualifies for a family visa?

Applications for a visa can be submitted by qualifying family members or permitted family members.

A qualifying family member is either;

  • A spouse
  • Child under 21 years
  • Child under 21 years of the spouse
  • Adopted child
  • Dependent parent
  • Dependent parent of the spouse
  • Other dependent family members in the direct ascending line ( e.g. grandparent) or descending line (e.g. grandchild)
  • Other dependent family members of the spouse in the direct ascending (e.g. grandparent) or descending line ( e.g. grandchild).

Permitted family members include any other family members who are dependent on the EU citizen in their country of origin or the partner with whom the EU citizen has a durable genuine relationship.

How do I apply?

In order to apply for a visa to accompany or join a family member in the state you must first complete the short online form on the Irish Naturalisation and Immigration Service website.

When you have completed the online application process, you must follow the instructions on the summary application form that is created by the online system.

The summary form will contain information on where you are to submit your supporting documentation, usually the nearest Irish Embassy or Consulate in your country or a Visa Application Centre in certain countries*.

*If you are a national of India, Pakistan or Nigeria you are required to provide your biometric fingerprints at your nearest Visa Processing Centre as part of the visa application process.

In order to obtain a visa pursuant to the Free Movement of Workers Directive you must submit documentary evidence to establish identity including;

  • valid passports
  • evidence of the relationship (marriage certificate, birth certificates, family certificates)
  • evidence that the EU citizen is exercising free movement (evidence that the EU citizen is already residing in Ireland or intends to travel to Ireland)
  • and evidence of membership of the household of the EU citizen where applicable.

While Applicants can be requested to provide specific documents to prove that they are beneficiaries of the Directive, the visa officer cannot refuse other means of proof.

The documentary evidence required to be submitted can vary according to the circumstances of each case.

If you are a ‘qualifying family member’ of an EU/EEA /Swiss Citizen you are exempt from the visa fee and your application must be processed by way of accelerated process within a period of three to four weeks from the time that the application is first received in an Irish Embassy/Consulate or Visa Office.

If you are a family member other than a ‘qualifying family member’ you are required to pay the visa application fee. Applications from qualifying family members are not processed by way of accelerated process and the processing times of these applications vary.

What happens after the visa is granted?

Once you been granted entry to Ireland pursuant to the terms of your visa and you wish to reside here for longer than three months, you should submit an application to the Department of Justice and Equality for a five year residence card as the family member of an EU/EEA national who is exercising their EU Treaty rights in the state (as a worker, self-employed person, a student, or an individual residing with sufficient resources).

Visa Applications For Family Members Of EU Citizens
EU

The Free Movement Rights Directive 2004/38/EC governs family reunification for EU citizens exercising their EU Treaty Rights in another EU member state.

For example, this might apply to say a British citizen who is residing in Ireland exercising their EU Treaty Rights who wants to be accompanied or joined in the state by a family member who is not a citizen of the European Union.

EU citizens and their family members have a right of residence, under Article 6 of the Directive, for up to three months in another EU member state without any conditions.

In order to qualify for a visa to Ireland under the Directive (Free Movement of Workers) the Applicant must prove that they are either;

(i) a qualifying family member or

(ii) a permitted family member, of an EU citizen exercising or planning to exercise free movement rights.

 

Qualifying Family Members include:

(i) the spouse of the EU citizen

(ii) the partner of the EU citizen where the State recognised the registered partnership as equivalent to marriage (this is same sex partners only in Ireland)

(iii) direct descendants (sons, daughters, grandsons, granddaughters) of the EU citizen and/or their spouse or partner under the age of 21

(iv) direct descendants over the age of 21 where they are dependent on the EU Citizen and/or their spouse or partner

(v) parents and grandparents of the EU citizen and the spouse or partner where they are dependent on the EU citizen and/or their spouse or partner

 

Permitted family members include:

(i) other family members who, in the country from which they have come, are dependants of members of the household of the EU citizen. The level of dependency must be sufficient to render independent living by the family member in their home country impossible if that financial and social support were not maintained.

(ii) the partner with whom the EU citizen has a duly attested durable relationship. This requires a relationship for a period longer than two years.

 

The Applicant must prove:

(i) that there is an EU citizen from whom they can derive rights from under the Directive;

(ii) the existence of the required relationship as either a qualifying or permitted family member;

(iii) that they will be accompanying or joining an EU citizen who is or will be exercising free movement rights at the time of the arrival of the family member in Ireland. The EU citizen must be working or self-employed or in a full-time course of study and have sufficient resources to support themselves and their family members without recourse to public funds.

 

The proofs that are required are:

(i) proof of identity – e.g valid passports or national identity cars for the Applicant and the EU citizen;

(ii) proof of the required relationship – e.g.  birth certificate or a marriage certificate, civil partnership certificate;

(iii) for a permitted family member, proof of dependency or membership of the household of the EU citizen.

(iv) proof that the EU citizen is exercising or planning to exercise the free movement rights in Ireland (employment/self-employment/student/residing with sufficient resources) at the time of arrival of the Applicant family member (e.g proof of travel to Ireland ).

 

Refusals can be made on the following grounds:

(i) failure to prove that they are a beneficiary of the Directive ( that they are a qualifying/permitted family member of an EU citizen who is exercising/planning to exercise their free movement rights and they are planning to accompany or join the EU citizen);

(ii) The State proves that the conduct of the applicant is a genuine, present and sufficiently serious to public policy, public security or public health; or

(iii) The State proves that there was an abuse of rights or fraud. If supporting documents can be shown to be frauds or fraudulently altered, then they cannot be relied upon and would be used to support a refusal.

Ireland does not recognise polygamous marriages so this form of marriage would not prove the family relationship.

Forced marriages are also not recognised under Irish law and would therefore not prove the family relationship.

Marriages including a person under the legal age of marriage in Ireland may be allowed if the legal age was met in the country where the marriage was entered into.

 

If the visa application is refused, the Applicant can appeal the refusal within two months of the date of the decision or alternatively submit a new application if they so wish.

 

It is important to address the reasons for the original refusal in any appeal.  If the application is further refused on appeal then the only other appeal mechanism is by way of Judicial Review to the High Court provided there are grounds to merit any such application.

Applications from qualifying family members must be processed within four weeks from the time that the application is first received. The visas issued to qualifying family members should be free of charge. Applications from permitted family members may take longer than four weeks and the normal fees apply to these visa applications.

The Applicant will be granted a  single entry C Visa to enter the State if the visa is approved.

If the Applicant wishes to reside in Ireland for more than three months, then they should make an application* (when in the State) for a residence card of a family member of an EU citizen exercising their EU Treaty Rights in the state.

*This Application is made on a Form EU1 submitted to the EU Treaty Rights Section, Irish Naturalisation and Immigration Service, 13 – 14 Burgh Quay, Dublin 2.

As Immigration and Visa experts, Sinnott Solicitors can guide you through every stage of the visa application offering you expert legal advise and assistance. Call us today on +353-1-4062862

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