Delays to entry visa applications likely following EU treaty rights case appeal

IMPACT – MEDIUM

What is the change? Following the state’s appeal of a court decision that imposed a six-week processing deadline on family visa applications that are based on EU treaty rights, the Irish Court of Appeal has referred several questions to the Court of Justice of the European Union. The state had failed to make a decision on an EU Treaty Rights-based family entry visa application “as soon as possible and on the basis of an accelerated process.”

What does the change mean? It is unclear what time frame the state authorities must process applications within and what “as soon as possible and on the basis of an accelerated process” means. Employers should anticipate the likelihood of delays to these types of applications.

• Implementation time frame: Ongoing.
• Visas/permits affected: Entry visa applications based on the exercise of EU treaty rights.
• Who is affected: EU nationals in Ireland or seeking to move to Ireland to sponsor family members on the basis of EU treaty rights.
• Impact on processing times: Applicants should anticipate delays, as there continues to be high volume of these applications. The Court of Appeal has not indicated what processing time frame applies pending determination of the case before the Court of Justice of the European Union.
• Business impact: All EU employees applying to bring visa-required third-country family members to Ireland based on the exercise of the employee’s EU free movement rights are likely to experience delays in their applications.  

Background: State authorities have seen a surge in visa applications based on EU treaty rights, causing a delay in processing of 12 months or more. Applicants challenged this delay and the Irish High Court ruled that the applications must be decided on an “accelerated procedure” and directed the state to decide the visa applications within six weeks due to the particular context of delay in one of the cases in the appeal. The state appealed the decision to the Court of Appeal, which has referred several questions to the Court of Justice of the EU. Among the questions the Court of Justice will decide is whether the surge in applications may justify a longer processing time and whether the state may take longer to process applications in order to conduct additional background checks regarding security or whether the application is based on bona fide relationships, such as a marriage.

The Court of Appeal decision, Mahomood & Ors v. The Minister for Justice, (2018) IECA 3, may be viewed here.

BAL Analysis: All EU treaty-right visa applications are likely to be affected, in particular applicants sponsoring family members in Afghanistan, Pakistan and Iraq. The Court of Appeal decision does not state the allowable processing time, and more litigation is likely to challenge delays. As there is currently a backlog of more than 4,000 cases, BAL anticipates that the Court of Justice of the EU is likely to affix an early hearing date. Due to the potential for impact across the EU, it is likely that many other member states will take part in or make submissions on the reference.

This alert has been provided by the BAL Global Practice group. For additional information, please contact ireland@bal.com.

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