The Court of Appeal has referred questions to the Court of Justice of the European Union about delays in processing visas for family members of EU citizens exercising free movement rights in Ireland. It has not yet made a final ruling on whether the delays in four appeals breached EU law.
The four appeals, heard together, concerned applications by spouses and other family members based in Afghanistan, Iraq and Pakistan. The Minister for Justice appealed High Court orders directing decisions on the applications within six weeks. None had been decided by the time the High Court proceedings took place. The Court of Appeal judgment was delivered by Mr Justice Gerard Hogan on 26 January 2018.
The applicants argued that waits of at least a year, and in some cases up to two years, were inconsistent with Article 5(2) of the EU free movement directive, which requires visas to be issued as soon as possible through an accelerated procedure. The Minister relied on security and background checks, concerns about fraud and marriages of convenience, a sharp rise in applications and limited resources.
The Court of Appeal said that delays of up to two years appeared in principle to breach Article 5(2). It also found that the applicants could rely on that provision in challenging the Minister’s inaction; the judicial review proceedings were not the forum to decide the underlying family relationships or whether the applicants ultimately qualified for visas.
The court acknowledged the Minister’s concerns about security, abuse and resources, but said it could not resolve the EU-law questions with certainty. It noted that the directive did not expressly state that those concerns permitted delays of a year or more, and that the issues had not been directly considered by the Court of Justice.
The court therefore set out four draft questions for referral under Article 267 of the Treaty on the Functioning of the European Union. They ask whether delays exceeding 12 months breach Article 5(2), and whether checks for fraud or security concerns, or a sudden surge in applications from countries considered to present security concerns, can justify delay.
The court invited the parties to make submissions on the draft questions before their final submission to the Court of Justice. The judgment does not answer those questions or determine the visa applications; the source records no final decision on the appeals.