Visa delays of more than a year may breach European directive

The Court of Appeal is concerned delays of more than a year here in deciding entry visa applications by non-EU family members of UK/EU citizens who come to Ireland may breach the EU's free movement directive.

In a judgment on Friday, the court said it is concerned the delays may breach the directive but wants the Court of Justice of the European Union (CJEU) to address various issues which will directly affect more than 4,000 applications being processed here.

It wants the CJEU to consider whether the Minister for Justice is entitled to delay processing applications so background checks can be carried out to ensure an application is not fraudulent, any marriage involved is not a marriage of convenience and no real security concerns are involved. It also wants the CJEU to consider if the Minister is entitled to rely on scarcity of resources to justify the delays.

The precise questions will be finalised later but the president of the appeal court, Mr Justice Sean Ryan, said the matter was clearly urgent.

The 2004 EC Directive requires that short-stay entry visa applications be speedily processed. 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.

Minister’s appeal

The Minister appealed High Court findings that delays of more than a year in processing applications of three men breached the directive. The three — a native of Pakistan who is a UK/EU citizen and two natives of Afghanistan also UK/EU citizens — claimed to be resident here since dates in 2015.

Entry visas were sought for the wife of the Pakistani man, the wife of one of the Afghani men and for the mother, two sons and four grandchildren of the second Afghani man. It was alleged the failure of more than a year to process the entry visa applications breached the 2004 directive.

The High Court's Ms Justice Mary Faherty said the applications were made in June and August 2015 and the delay in processing them was so "unreasonable and egregious" it breached the relevant provision of the directive.

Because, at the time of her decisions in late 2016 there was still no time frame for a decision, the Minister’s arguments including 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.

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

‘Very considerable importance’

Giving the Court of Appeal judgment on Friday, Mr Justice Gerard Hogan with whom Mr Justice Ryan and Mr Justice Micheal Peart agreed, said the court is concerned the delays may breach the 2004 directive.

One might think, if the directive permitted a member state to delay processing a visa application for a year or more, this would have been expressly stated, the judge said. The same applied to the Minister’s arguments on resources and being entitled to carry out extensive background checks concerning people coming from certain countries because of concerns relating to security and religious radicalisation concerns.

The case was of “very considerable importance” concerning the practical implications and effects of key provisions of the 2004 directive and has direct implications for more than 4,000 applications being processed here.

The issue of the time periods contemplated by Article 5.2 of the directive and possible justifications for the processing delays, especially concerning fraud and security checks, have not yet been directly considered by the CJEU, he noted.

While one “may tend to doubt” the correctness of the various arguments advanced by the Minister, the court could not say the issues were so clear they must be resolved in favour of the three applicants and it was making a referral to the CJEU.

The Minister denied unreasonable delay and argued the immigration service is dealing with a huge backlog of applications following an “enormous” surge in the number of EU Treaty rights applications from 663 applications in 2013 to more than 10,000 in 2015.

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 cases subject of appeal.