Visas Under Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015

There continues to be substantial delays in the issuance of visas to family members of EU citizens under Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015. The delays are occurring in relation to applications from both “qualifying family members” such as spouses, children and dependant parents and “permitted family members, including siblings and de facto partners”.

Regulation 4 of the Regulations relates to “permission for union citizens and qualifying family members to enter the state”. Regulation 4(3)(b) states:

“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 from a qualifying family member referred to in subparagraph (a) as soon as possible and if the Minister decides to issue an Irish visa that visa shall be issued free of charge”.

Regulation 5 relates to “permission for permitted family member to enter the State”.Regulation5(8)(b) states:

“The Minister shall grant permitted family members every facility to obtain an Irish visa, and on the basis of an accelerated process, consider an application for an Irish visa from a qualifying family member referred to in subparagraph (a) as soon as possible and if the Minister decides to issue an Irish visa that visa shall be issued free of charge”.

We note that the wording of Regulation 4(3)(b) and 5(8)(b) is exactly the same and provides the same procedure for both qualifying and permitted family members. It is our submission therefore that once a person is found to be a permitted family member ,after an investigation under Regulation 5(3), they should be notified in writing by virtue of Regulation 5(6) and after this their visa application should too be processed on an accelerated procedure and free of charge.

We have found that some visa processing centres, processing Irish visas on behalf of the INIS, are charging a processing fee to permitted family members when applying for entry visas under the Directive and Regulations. We submit that this is an unlawful breach of the Regulations, specifically Regulation 5(8)(b).

We are aware that a number of cases relating to delay on decisions on EUTR visas are being heard before the High Court. The High Court has heard test cases relating to visa applications from the spouses of EU citizens, some in cases where the EU citizen intends to travel to Ireland, but has not yet arrived here and some in cases were the EU citizen has taken up residence in Ireland and are awaiting their spouses joining them.

We understand that judgement  on these cases should issue in late August and a number of cases with similar facts and relating to the same legal points will travel alongside these test cases. We await the judgement at the end of August and will update the blog with any developments in the interim.

BROPHY SOLICITORS IMMIGRATION TEAM

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