EU TREATY RIGHTS – CURRENT DELAYS IN PROCESSING APPLICATIONS
Currently, applicants for both the EU Family Member registration cards, and EU Fam visas, are being greatly frustrated by the delays in the processing of these applications.These delays are such that the Department of Justice is indicating that the average processing time for the EU Fam residence card application is now ten months.
Many family members of EU nationals are waiting up to 12 months or more for their visa applications to be processed.
These substantial delays in the issuance of EU Fam residence cards and EU Fam visas to family members of EU citizens are in direct breach of the terms of EU Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015.
For example, the Directive and Regulation clearly states that the visa applications are to be processed by way of an “accelerated procedure”.
However notwithstanding this, these substantial 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”.Regulation 5(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.
Due to these on going delays, a growing number of applicants are issuing Mandamus proceedings before the High Court seeking the High Court to intervene and issue orders against the Minister for Justice to determine the EU Treaty Rights applications.
A number of test cases have been heard by the High Court 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 where the EU citizen has taken up residence in Ireland and are awaiting their spouses joining them.
There has also been test cases chosen relating to the delays on the determination of the EU residence card applications once they go over the required six month determination period.
We await these decisions from the High Court, which will hopefully have immediate consequences on the determination of many pending applications.