The High Court ordered the Minister for Justice and Equality to decide three sets of visa applications from non-EU family members of EU citizens within six weeks of the court order being perfected. It did not order that visas be granted, and left the Minister free to carry out checks required under the law.
In a judgment delivered on 28 October 2016, Ms Justice Faherty found that the applicants could rely on Article 5(2) of the EU Free Movement Directive while their applications remained undecided. She rejected the Minister’s argument that the EU citizens lacked standing or had to prove their family members’ eligibility in the judicial review proceedings. The legality of the delay was at issue; the High Court was not deciding the underlying family relationships, dependency or eligibility for visas.
The three cases concerned applications submitted in 2015 for spouses, children and other relatives to join EU citizens living in Ireland. By the hearing in July 2016, the applications had not entered examination. The Minister cited a sharp rise in applications, limited resources and concerns about possible fraud and abuse of free-movement rights. Those concerns included broader Garda investigations and matters raised about the individual applications. The applicants disputed the explanations and argued that the delays were inconsistent with the requirement to process qualifying family visa applications as soon as possible through an accelerated procedure.
Justice Faherty accepted that the increase created logistical difficulties and that the State could investigate possible abuse. But she found that general concerns and investigations not particular to these applicants did not justify leaving their applications unexamined without any expected decision date. The Minister’s approach could not exclude the time spent waiting for examination when assessing whether the applications were handled as soon as possible. The court also noted that the applicants had not been contacted to respond to concerns before the applications were left unprocessed.
The court concluded that the open-ended delay deprived Article 5(2) of its effectiveness and was sufficiently unreasonable and egregious to breach the Directive and justify mandamus. The six-week order requires decisions, not approvals; the Minister may still conduct reasonable, individual checks. The court rejected the argument that ordering decisions would improperly dictate the allocation of public resources or collapse the system.
A separate damages claim by Mohammed Ahsan, concerning alleged expenses and separation from his wife and son, was held to be premature until decisions issue on their visa applications. The judgment made no finding at that stage that damages were due.