VISA DELAYS – THE ATIF AND MAHMOOD CASE

Many of our clients are currently experiencing considerable delays in the processing of their visa applications.

The Irish Naturalisation and Immigration Service indicates that it renders a decision in that majority of visa applications within eight weeks of receipt. It further indicates that Join Family visas take significantly longer, estimating six months for circumstances where the sponsor is an Irish citizen or in Ireland and entitled to immediate family reunification, and twelve months for all other instances.

Our office continues to experience delays well beyond the above outlined time frames. In particular, we highlight that many of our Irish citizen and EU citizen clients are waiting over a year to join their family members in Ireland. Some of our clients are waiting as much as two years.

Such delays are due to the high number of applications submitted to INIS. We believe that such delays are unreasonable and unlawful.

The delay in processing a visa application made in the exercise of EU Treaty Rights under Directive 2004/38/EC and The European Communities (Free Movement of Personas) Regulations 2015 is currently under review in the Court of Appeal in the case of Mahmood and Atif v Minister for Justice and Equality.

The judgment of the High Court was issued on 14^th October 2016 and found that while no time frame was specified in the Directive, applicants could expect to receive a decision on their application within 6 months.

This was appealed by the respondent. The appeal was heard by the Court of Appeal recently on 15^th December 2017.

We confirm that the Court of Appeal has decided to make a reference to the European Court of Justice pursuant to Article 234 of the EC Treaty. Article 234 provides the mechanism for national courts to refer questions regarding the interpretation of Community law to the ECJ.

We believe the question to be referred to the Court of Justice will relate to the intended timeframes for visa applications for the family members of EU citizens.

The Court of Appeal will then make it’s judgement based on the directions of the Court of Justice.

We will keep you updated of further developments.