Visa Processing Delays for family members of EU citizens – Decision of the High Court – Mohammed Ahsan (and others) v Minister for Justice and Equality

MOHAMMED AHSAN (AND OTHERS) V MINISTER FOR JUSTICE AND EQUALITY

On 28 October 2016, Ms Justice Faherty delivered judgment in the High Court in the case of Mohammed Ahsan (and others) v Minister for Justice and Equality.

This case arose as a result of the ongoing delays by the visa office to process the visa applications of Mr Ahsan’s wife and son to accompany Mr Ahsan to the State pursuant to Council Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015.

The Directive and Regulations govern the rights of citizens of the European Union and their family members to move and reside freely within the territory of the Member States.

This case is the second test case to litigate the recent issues of delay currently being experienced in the processing of EU visa applications.

The first test, Atif Mahmood and Shabina Atif v Minister for Justice and Equality, in which Ms Justice Faherty delivered judgment on 14 October 2016, was based on different circumstances than the current case, as the applicant in that case had not yet moved to the State but submitted an application with the intention of moving to Ireland, exercising his EU rights.

In this case the applicant is currently residing and working in the State.

Mr. Ahsan is a British and EU citizen exercising his EU Treaty Rights in the State.

The applicant’s wife submitted applications for herself and her son in August of 2015. The Applicant sought leave to bring judicial review proceedings in March 2016.

Explanation for Visa Processing Delays

The respondent’s explanation for the visa processing delays was that there has been a rapid rise in visa applications recently.

However, there may be no specific time limit set out in Article 5(2) of the Directive. Its language can been interpreted as importing into the provision certain urgency in the issuing of visas. In the Court’s assessment, the applicant is entitled to invoke the provisions of Article 5(2) of the Directive.

Article 5 of the Directive states that;

[custom_blockquote style=”yellow”]“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 based on an accelerated basis.”[/custom_blockquote]

This clearly provides right of entry for non-EU family members of EU citizens to an EU state.

Similar to the Mahmood/Atif case, the respondent argued that the visa delays are not unreasonable considering the unprecedented surge in such applications and information provided by An Garda Síochana indicating a potential abuse of EU Treaty Rights and that the applicants should stay in the queue until the results of the Garda and other investigations are more fully known.

Visa Decisions Timeframe

The Court held that the applicants timeframe in terms of the decisions to be made on the visa applications.

Eessentially the upshot of this is a deprivation of Article 5(2) and its effectiveness;

[custom_blockquote style=”yellow”] “… I am satisfied that the applicants are entitled to treat the delay as so unreasonable and egregious as to constitute a breach of the Directive and to justify the application for mandamus*…”[/custom_blockquote]

*A (writ of) mandamus [“We command”] is an order from a court to an inferior court, agency or government official ordering this party or parties to properly fulfil their official duties or correct an abuse of discretion.

The Court rejected the respondent’s submission that the effect of the mandamus remedy sought by the applicant would be to direct the respondent as to the manner in which resources should have been allocated.

Appeal for Damages

Mr. Ahsan also sought damages incurred by the respondent’s failure to make a decision regarding his wife’s and sons’s visa applications.

Due to this indecision, Mr Ahsan claims he has been deprived of his family life for a long period of time. However, the Court declined to hear the claim for damages, considering it to be premature until visa applications have been considered.

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