Judge criticises ‘unreasonable’ delay over visas

Minister given six weeks to make decision after breach of ‘free movement’ directive

The court heard that there was a backlog of 7,000 applications based on EU Treaty Rights waiting to be processed. Photograph: Frank Miller

The court heard that there was a backlog of 7,000 applications based on EU Treaty Rights waiting to be processed. Photograph: Frank Miller

 

A High Court judge has given the Minister for Justice six weeks to make decisions on entry visa applications by non-EU family members of three UK/EU citizens who moved to Ireland last year.

The short-stay visa entry applications were made in June and August 2015 and the delay in processing them is so “unreasonable and egregious” it breaches the relevant provision of the 2004 EU ‘free movement’ Directive, Ms Justice Mary Faherty ruled.

Because the Directive requires such applications be speedily processed, and there is still no timeframe for a decision, arguments including those about scarce immigration service resources cannot excuse failure to vindicate fundamental rights under EU law of EU citizens, including free movement, family life rights and the right to an effective remedy, she held.

Noting the Minister’s concerns as to whether the three EU citizens are in fact residing here, she said their family members, in any future applications for residence cards, will have to show the EU citizens are “genuinely resident”.

These visa applications have still not been examined and there is no evidence of any factors personal to the applicants which inhibited or delayed processing the applications, she said. It remained open to the Minister, when processing the applications, to carry out such checks as deemed necessary.

Her judgment follows another judgment delivered by her which directed the Minister to decide, also within six weeks, a July 2015 application by a Pakistani woman for a short stay visa to enter Ireland along with her husband, a British/EU citizen.

Both judgments have implications for the operation of the immigration service and for similar cases based on the right of EU citizens to move freely within the EU and the derivative right of qualifying family members to a short-stay visa to enter the particular EU state where their EU citizen relative either intends to reside or is residing.

The latest judgment addressed the length of time that may lawfully be taken by the Minister to decide applications for visas for third country family members of EU citizens to join those EU citizens in Ireland.

Once entry visas are issued, non-EU family members can legally enter the State for a short period but have to separately apply for residency if they wish to stay beyond that.

In separate cases, the three men – a native of Pakistan who is a UK/EU citizen and two natives of Afghanistan who also are UK/EU citizens – claimed to be resident here since dates in 2015. Entry visas were sought for the wife of the Pakistani applicant, the wife of one of the Afghani men and for the mother, two sons and four grandchildren of the second Afghani man.

The three alleged the failure to date to process the entry visa applications breached the 2004 Directive which required applications to be processed speedily. The Minister’s guidelines provided for a period of four weeks, the court was told.

The Minister had denied unreasonable delay and argued imposing a six-week deadline for processing such applications would collapse the immigration service. The court was told of an “enormous” surge of 1,417 per cent from 2013 to 2015 in the number of EU Treaty rights applications. There were 663 applications in 2013 and more than 10,000 in 2015. The backlog is some 7,000.

It was also argued the Minister was awaiting finalisation of a Garda investigation, Operation Vantage, into criminal networks based here and the UK involved in facilitating sham marriages. No sham marriage claims were advanced in relation to the three cases. Concerns were also expressed about possible abuse of Ireland’s immigration law and policy as a result of short-stay visa applications for third country national family members of EU citizens.

The Minister’s side also raised queries about whether the three applicants were in fact residing and working here. The Pakistani applicant, according to the Birmingham FA website, refereed a match there in November 2015 when he claimed to be residing here, it was argued.