During 2016, two cases concerning processing times for visa applications lodged for the purpose of accompanying or joining EU family members pursuant to
465 While this summary is correct, the overall correctness of the Bakare decision may have to be revisited in the light of the subsequent decision of the CJEU in Chavez-Vilchez (Case C-133/14), which has not yet been considered by the Irish courts. EMN Legal Consultant, October 2017.
Article 5(2) of Directive 2004/38/EC, Mahmood v Minister for Justice and Equality
[2016] IEHC 600 and Ahsan v Minister for Justice and Equality [2016] IEHC 691 were heard before the High Court. Case summary for Mahmood is included below. The reasoning of the judgment is the same in both cases.
Mahmood v Minister for Justice and Equality [2016] IEHC 600
The applicant was an EU citizen who intended to move to the State and wanted a visa for his wife to allow her to accompany him. The rights asserted by the applicants arose pursuant to Directive 2004/38/EC (‘the Citizens’ Directive’) and in particular Article 5(2), which provided that such visas should be issued ‘as soon as possible and on the basis of an accelerated procedure’. The applicants complained of delays of several months in the issuing of visas, which they said was in breach of EU law. The applicants instituted judicial review proceedings seeking declarations that they were entitled to a decision on their visa applications, and if necessary an order compelling the Minister to determine the applications.
The Minister sought to explain the delay with reference to ‘an unprecedented surge’ in the number of applications for visas from non-national family members of EU citizens, and also the need to verify the details of the applications including whether the applicants were in fact entitled to invoke EU Treaty rights in circumstances where there was concern as to possibly fraudulent applications
and the potential for abuse of Ireland’s immigration law and policy occasioned by
applications for short-stay visas for third-country national family members of EU citizens. In particular, the Minister was concerned that some applications amounted to abuse of rights by seeking to utilise the principle in Surinder Singh, whereby a British citizen might seek to exercise EU Treaty Rights in Ireland for a short period and then return to the United Kingdom and claim the protection of EU law upon their return, thus allowing them to bring their non-national family members with them.
Faherty J held that while no specific time limit is set out in Article 5(2) for decisions on visa applications, the language of this article had been interpreted as importing into the provision a ‘certain urgency in the issuing of visas’, of which the court must be mindful. Faherty J was satisfied that in each case the Minister was in breach of the requirement to issue such visas as soon as possible on the
basis of an accelerated procedure, and rejected the Minister’s suggestion that
any period of delay prior to the actual examination of the application should be disregarded by the court.
The High Court acknowledged the Minister’s ‘considerable concerns’ regarding possible abuse of the Directive as well as the logistical difficulties caused by the very significant increase in the number of visa applications by non-national family members of EU citizens. While Faherty J considered that the Minister had raised a number of compelling prima facie arguments to justify the delays, such delays
were nonetheless in breach of Article 5(2) of the Directive and the requirement to issue visas as soon as possible in accordance with an accelerated procedure. Furthermore, Faherty J noted that the Minister did not allege abuse of rights in the cases before the court as these applications had not yet been considered;
rather, the Minister’s concerns arose in general as a result of the ‘maelstrom of visa applications’, and this was held to be insufficient to justify the delays. Faherty J was also satisfied from her reading of Article 5 that the framers of the Directive had in mind ‘a considerably shorter time span than six months for the issuing of visas to qualifying family members of EU citizens who have or intend to exercise their free movement rights, given the urgency which informs the language used in the provision’.
Accordingly, the court held that in circumstances where no time span for even the commencement of the examination of the applications was forthcoming from the Minister, and no indication as to when a decision might be expected, the applicants were 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. The High Court therefore directed the Minister to take a decision on the
applicants’ visa applications within six weeks of perfection of the order. The
decision in Mahmood is under appeal.
The court granted order of mandamus compelling the Minister to determine the visa applications.
Principles: The decision in Mahmood establishes that delays of several months in the determination of visa applications by non-national family members of EU citizens to allow them to accompany the EU nationals to the State are in breach of EU law, notwithstanding the unprecedented surge in the numbers of such applications, which poses logistical difficulties for the Minister. Generalised concerns as to potential abuse of EU Treaty Rights are not sufficient to justify such delays.