CURRENT DELAYS IN THE PROCESSING OF VISAS FOR QUALIFYING FAMILY MEMBERS UNDER DIRECTIVE 2004/38/EC AND THE EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGULATIONS 2015
Our office has received a number of queries from EU Citizens relating to delays in the processing of visas for their qualifying family members, including children, spouses and dependant parents. The guideline processing time for visas for qualifying family members, pursuant to Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015 is four weeks. Our offices have now come across delays of 6 or more months for such applications.
We note that such delays have also become the subject of a number of judicial review proceedings at the present time. There appears to a distinction forming in such litigation between visa applications applied for where the EEA citizen has already moved to Ireland and is exercising their rights at the time of application, from circumstances where the EEA citizen has provided evidence of their intention to move to Ireland for the purpose of exercising their rights in the near future, with the desire that their qualifying family member accompany them to the State for this purpose.
This is an interesting development, given that the Directive and Regulations themselves do not appear to make any such distinction between these circumstances.
We highlight that Article 5 of the 2004 Directive clearly provides for the right of entry for visa required Non-EEA family members of Union citizens. Article 5(2) states that “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 and on the basis of accelerated procedure”.
Regulation 4(3)(b) of the 2015 Regulations states that “The Minister shall grant qualifying family members every facility to obtain an Irish visa, and, on the basis of an accelerated process, consider an application for an Irish visa for an Irish visa from a qualifying family member …as soon as possible…”
We further highlight that Article 6 of the Directive allows for a right of residence on the territory of another Member State for a period of up to three months without any conditions or any other formalities other than the requirement to hold a valid identity card or passport. This provision also applies to Non-EEA family members accompanying or joining the Union citizen.
We would submit that delays of over six months in the processing of these visa applications are in clear breach of Article 5(2), in conjunction with Articles 5(1) of Council Directive 2004/38/EC and Regulation 4(3)(b), in conjunction with Regulation 4(1) and Regulation 4(2), of the European Communities (Free Movement of Persons) Regulations 2015.
Furthermore such delays in delivering of a decision on visa applications for the family members of an EU citizen is, in all the circumstances, unreasonable, and unjustifiable and in breach of the European Communities (Free Movement of Persons) Regulations 2015 and Council Directive 2004/38/EC.
It is our understanding that a High Court judgement in relation to this issue is to be handed down in the coming weeks and we will keep you updated of the outcome of same.
BROPHYS IMMIGRATION TEAM