The High Court has refused an application for judicial review seeking to compel the Minister for Justice and Equality to decide a visa application for a family member of an EU citizen.
The applicants sought an order of mandamus requiring a determination of the second applicant’s visa application. They said the delay had prejudiced them. The application was for a visa to allow the second applicant to travel to Ireland to reside with the first applicant, a British national.
The judgment records that the visa application was made in Bangalore on 20 June 2016. The first applicant’s affidavit said she arrived in Ireland on or about 22 June 2016 and had lived and worked there since then. The judge concluded that the visa application therefore preceded her move to Ireland and her exercise of free movement by becoming established in another member state.
Justice O’Regan referred to the European Court of Justice’s decision in *McCarthy*, which she said established that relevant rights under the EU free movement directive derive from a Union citizen’s exercise of free movement. She found that, when the visa application was made, the claim that the first applicant had already exercised that right by becoming established in Ireland was erroneous. In those circumstances, she said, there was no question of the second applicant accompanying or joining her under Article 2.2.
The applicants relied on the High Court decision in *Mahmood*, which they said meant an EU national did not have to be established in Ireland. Justice O’Regan considered that argument inconsistent with *McCarthy*. Citing *David Hughes v Worldport Communications Inc.*, she said she could not follow *Mahmood* to the extent that it suggested a spouse’s derivative right could arise in anticipation of, or before, the Union citizen exercised a right of entry or residence in another member state.
The court held that it was not arguable that the second applicant had a derivative right on the date he submitted the visa application. It refused the application for judicial review. The judgment does not record a separate order requiring the Minister to determine the visa application.