Luximon v. Minister for Justice & Equality (Court of Appeal – 14/12/2016)

Balchand v. Minister for Justice & Equality (Court of Appeal – 15/12/2016)

The Court of Appeal (Finlay Geoghegan J, Peart J & Hogan J) delivered important judgments on 15th December 2016 in the cases of Luximon & Ors -v- The Minister for Justice & Equality [2016] IECA 382 and Balchand & Ors -v- The Minister for Justice and Equality [2016] IECA 383.

These two cases concerning the question of whether, in determining an application for permission to remain by a non-EEA national, made pursuant to section 4(7) of the Immigration Act 2004, the Minister is obliged to consider the applicant’s rights to the respect for private & family life as guaranteed under Article 40.3 of the Irish Constitution and Article 8 of the ECHR.

The Court of Appeal held that the High Court Judgment of Barr J in Luximon (20 March 2015) IEHC [2015] 227was correct in finding that there was such an obligation on the Minister.

These judgments would appear to mainly affect people who are resident in Ireland on student permission or those who have overstayed their student permission, specifically those who wish to continue to live and work in Ireland after their student permission expires.

The INIS Policy document on Non-EEA Family Reunification, published in December 2013 provides a comprehensive statement on Irish national immigration policy in the area of family reunification. The policy lays out a number of overarching principles to the Minister’s assessment of applications for Non-EEA family members to live and reside with their Irish or legally resident family members in Ireland, as well as setting a number of specific thresholds relating to finance, income and dependency.
We submit that this policy should be applied in a fair and flexible fashion, taking account of the salient facts and circumstances of the particular applicant and their family members. The Executive Summary to the policy itself states “Ministerial discretion applies to most of the decision making in the area of family reunification and this will continue to be the case”. “It is intended that family reunification with an Irish citizen or certain categories of non-EEA persons lawfully resident in the State will be facilitated as far as possible where people meet the criteria set out in this policy although of course each case must be considered on its merits”.

Applications for EU FAM Residence cards for permitted family members of EU Citizens, be it partners, brothers, sisters or any other family members are submitted to the EU Treaty Rights Division of the INIS under the provisions of Article 10 of Directive 2004/38/EC and Regulation 7 the European Communities (Free Movement of Persons) Regulations 2015.

Our office is of the opinion that there is no distinction in Article 10 or Regulation 7 between the time frame in the issuance of a decision on the application for permitted or qualifying family members. We quote from Article 10:

“The right of residence of family members of a Union citizen who are not nationals of a member state shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately”.

The judgement in the case of Mahmood and Atif v Minister for Justice and Equality was delivered on 14th October 2016.
Mr Mahmood is a British national, his wife Ms Atif is a citizen of Pakistan. Mr Mahmood and Ms Atif are legally married spouses. In and around June 2015 Mr Mahmood and Ms Atif submitted an application for a visa for Ms Atif to accompany Mr Mahmood to Ireland pursuant to Directive 2004/38/EC and then, the European Communities (Free Movement of Persons) Regulations 2006. Ms Atif submitted her application and supporting documents through the VFS centre as required on 9th July 2015.
Mr Mahmood travelled to be with Ms Atif in Pakistan, on the understanding that her application for a visa would be processed in a number of weeks. The Visa application for Ms Atif included a letter of invitation and a statement of intention to exercise EU Treaty Rights in Ireland. The letter indicated the couple’s plan to initially stay in a hotel whilst searching for accommodation and residence.
When no decision was forthcoming within the expected time frame, the couple emailed the Embassy to query the status of their application. They were informed that their application had been transferred to the Dublin office for processing and all further queries should be directed there. The Dublin Visa office, when contacted, indicated that the couple could expect a decision within the next 20-week period.
In November 2015, the couple’s legal representatives issued Judicial Review mandamus proceedings and leave was granted on 15th November 2015. Leave was also granted to seek damages and declaratory relief that the delay in this instance was in breach of the aforementioned Directive and Regulations.
The Minister argued that Mr Mahmood and Ms Atif are not beneficiaries of the Directive and Regulations, as Mr Mahmood was not residing, nor had travelled to Ireland. The Minister argued that no evidence had been supplied of any link or intention to reside in Ireland, apart from Mr Mahmood’s statement confirming same and argued that the intended move constitutes “artificial conduct” to obtain right under the Directive. The Minister contended that the State is entitled to investigate such matters, including the construction of circumstances to benefit from the Directive and Regulations and to investigate any matters of abuse of rights, including breach of the Common Travel Area, with the United Kingdom. The Minister argued that Mr Mahmood and Ms Atif were therefore not entitled to have their application for a visa for Ms Atif processed on an accelerated basis. The Minister contended that even if Ms Atif and Mr Mahmood were entitled to have their application assessed on an accelerated basis, the Minister has in place a fair and reasonable system in place for the processing of such visas.
The State further argued that to prioritise such visas over all other types of visas was not in the best interests of the State and highlighted that there has been a huge increase in applications for EUTR visas for qualifying family members of EU Citizens, particularly British citizens, in the latter part of 2015 and the State has limited resources and capabilities to deal with same. The respondent outlined that there were around 7,000 pending applications at the time.
Counsel for the applicants outlined that Mr Mahmood and Ms Atif had made it clear in the proceedings that it was their desire to ultimately return to the UK at some stage. Counsel outlined that this was an irrelevant factor in their visa application and highlighted that the visa should be considered under Article 6 of the Directive-the right of residence of the EU citizen and their family member for a period of three months. Counsel reiterated that a move to the UK in the future is ultimately a matter of the UK authorities and was not relevant in this case. Counsel also highlighted that any concerns in relation to the couple’s marriage or documentation is a reason to refuse a visa and not delay a decision on same.
The court determined that the Respondent’s argument that Mr Mahmood and Ms Atif were not covered by the provisions of the Directive, as Mr Mahmood had never travelled to nor was residing in the State is not in line with the wording and intention of the Directive, which explicitly states “join” or “accompany” the EU citizen. The court outlined a number of cases which again confirmed that the Directive clearly envisaged circumstances were the EU citizen would travel to the State accompanied by their visa required Non-EU family member. The Court stated that Articles 5 and 6 would essentially be negated otherwise.
The Court agreed with the applicant’s submissions that the couple’s visa application relates to Article 5 and 6 of the Directive- the right of entry and residence of up to 3 months. The Respondent’s attempt to apply Article 7 criteria- the right of residence for more than 3 months- was found to be flawed. The Court also found that the Minister’s contention that the granting of the visa could lead to a path of “abuse” of rights was unfounded.
The Court quoted from The Secretary of State v Akrich (Case C 109/01 [2004] O Q 765
“…it should be mentioned that the motives which may have prompted the worker of a Member State to seek employment in another Member State are of no account as regards his right to enter and reside in the territory of the latter State, provided that he there pursues of wishes to pursue and effective and genuine activity.”
The Court noted that it was not at this stage, where an application has been made for a visa to enter Ireland and reside for a period of three months, that the Respondent need to be satisfied that the EU citizen is validly exercising his EU Treaty rights in the State.
The Court dealt with the Respondent’s arguments in relation to the huge surge in applications for EU Treaty rights visas and the concerns in relation to fraud and the use of agencies in the submission of applications for such visas. Whilst the Court found such arguments compelling in nature, no evidence was found that such concerns relate to Mr Mahmood or Ms Atif’s application and found that what had occurred is that the couple’s visa has been caught up in the huge surge of applications.
The Court noted whilst no time frame is specified in the Directive, given the specification of 6 months in Article 7, applicants for such a visa could expect to receive the decision within 6 months and did note that the Respondent’s own guidelines state a 4-week processing time.
Mr Mahmood and Ms Atif were given a time frame to expect a decision within 20 weeks- a time frame which came and went without the issuance of a decision.
The Court ordered that a decision will be issued on Mr Mahmood and Ms Atif’s application within 6 weeks from the date of perfection of the order. The Court held that the applicants were not entitled to damages in these circumstances.

BERKELEY SOLICITORS IMMIGRATION TEAM

The UK’s departure from the EU is now a fact, and Theresa May has recently confirmed  the UK will trigger the process to leave the EU under Article 50 of the Lisbon Treaty as early as March 2017. This would mean that it looks likely the UK’s departure from the EU would happen around March 2017.

So many questions remain to be answered as to how Brexit will affect the rights of residence and free movement of UK citizens, and their family members,  within the EU. These rights are currently governed by  EU Directive 38/2004/EC, as implemented in Ireland by The European Communities (Free Movement of Persons) Regulations 2015.  

For those concerned what is to happen when this law no longer applies to UK citizens after March 2019, it may be reassuring to hear that it is currently being reported that consideration is being given within the EU to allow the UK an exemption to the normal freedom of movement rules for up to seven years. It this proposal is effected, it would mean that potentially British citizens and their family members would be given access to the EU market, both in terms of residence and employment and welfare,  on the same terms as they currently are, despite not being EU citizens.

We refer to article in the Guardian dated 24th July 2016:

https://www.theguardian.com/world/2016/jul/24/brexit-deal-free-movement-exemption-seven-years

Senior British and EU sources have confirmed that despite strong initial resistance from French president François Hollande in talks with prime minister Theresa May last week, the idea of an emergency brake on the free movement of people that would go far further than the one David Cameron negotiated before the Brexit referendum is being examined.

If such an agreement were struck, and a strict time limit imposed, diplomats believe it could go a long way towards addressing concerns of the British people over immigration from EU states, while allowing the UK full trade access to the European market.

While the plan will prove highly controversial in many member states, including France, Poland and other central and eastern European nations, the attraction is that it would limit the economic shock to the EU economy from Brexit by keeping the UK in the single market, and lessen the political damage to the European project that would result from complete divorce.