Ahsan v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 28 October 2016 |
| Neutral Citation | [2016] IEHC 691 |
| Date | 28 October 2016 |
| Court | High Court |
| Docket Number | [2016 No.144 J.R.] [2015 No. 731 J.R.] [2015 No. 634 J.R.] |
[2016] IEHC 691
THE HIGH COURT
JUDICIAL REVIEW
Faherty J.
[2016 No.144 J.R.]
[2015 No. 731 J.R.]
[2015 No. 634 J.R.]
AND
and
Asylum, Immigration & Nationality – Arts. 5, 7, 14 of the Directive 2004/38/EC – Mandamus – Delay in processing visa applications – Breach of Directives – Right to an effective remedy – EU Treaty rights
Facts: The applications in the present cases filed by the named applicants in each proceeding were concerned with the delay by the respondent in the determination of the applicants/EU citizens' applications for visas for non-national family members in the State. The applicants contended that they were not kept informed about the progress of their visa applications and hence, they had suffered prejudice. The applicants submitted that the respondent was in breach of the applicants' right to an effective remedy within a reasonable time under art. 47 of the Charter of Fundamental Rights. The applicants contended that the respondent was prioritising other types of visa applications over those of non-national family members of the EU citizens. The respondent submitted that there had been an upsurge in the number of visa applications and she was entitled on behalf of the State to ascertain whether the EU citizens genuinely sought to establish themselves in the State or attempted to gain illicit advantages. The respondent stated that the grant of mandamus would constitute a breach of principle of the separation of powers and would dilute the necessary appropriate assessment of the visa applications.
Ms. Justice Faherty granted mandamus and directed the respondents to take a decision on the respective visa applications within six weeks. The Court observed that the delay of the respondent was unjustified as there was no system in place to arrange for resource for speedy processing of the visa applications. The Court held that the grant of mandamus would not be an interference with the functions of the respondent rather it was an effective remedy that should be available to the applicants against any illogical or unreasonable acts on part of the public authority such as the present respondent. The Court observed that the respondent was in breach of her own guidelines for accelerated processing of visa application, which called for processing of such applications within four weeks. The Court noted that it was not his function to guide the respondent as to how she should put to use its limited resources.
The three cases which are the subject of this judgment are concerned with the time which may lawfully be taken by the respondent to determine applications for visas for non-national family members of EU citizens to join such EU citizens in the State. The rights asserted by the applicants arise pursuant to Directive 2004/38/EC ('the Directive'). In each case, the first named applicant is the EU citizen who is living and working in the State.
The factual background referred to by Mr. Ahsan in his statement of grounds, and as averred to in his affidavit sworn on 23rd May, 2016, is that he is a British and EU citizen who arrived in the State on 16th March, 2015. He avers that he took up employment on 18th May, 2015. Initially, he worked in a restaurant/takeaway and then commenced his current employment as a commercial cleaning operative on 8th June, 2015. He rented a room on first arriving and on 23rd May, 2015 he entered a fixed-term 12 month residential leasing agreement in respect of the property in which he presently resides. He avers that he married on 4th June, 2012, in Lahore, Pakistan and that his wife is a Pakistani national. He has a 3-year old son, also a Pakistani national.
On 7th August, 2015, the applicant's wife submitted in person (having previously completed an online application) applications for Category C visas for herself and her son via the Visa Applications Centre in Lahore which serves the Irish Consulate in Karachi, Pakistan. The documents which were lodged for the purposes of the visa applications (in order to show that the applicant's wife and son were beneficiaries of the Directive) comprised:
i. the current passports of the applicant's wife and son;
ii. an attested copy of the applicant's marriage certificate;
iii. an attested copy of the applicant's son's birth certificate;
iv. a copy of the applicant's British passport;
v. copies of the applicant's tax credit certificate from Revenue for 2015 and following years;
vi. copies of payslips in respect of the applicant's employment in the State; and,
vii. a copy of the applicant's tenancy agreement, together with a declaration from the applicant dated 10th July, 2015, stating that he was a British citizen presently exercising free movement rights by living and working in the State and that he intended to continue exercising EU Treaty rights in the State.
According to the applicant, between 31st August, 2015 and 1st February, 2016, he engaged in a series of email correspondence with the respondent in respect of the visa applications. The response to his query of 31st August, 2015 from the Irish Visa Information Centre advised that the standard time for the processing of EU Treaty Rights ('EUTR') visa applications was 8 to 12 weeks and that in some cases the concerned authorities take more time to take a decision. On the same date, the applicant sent a further email querying the projected timeline of 8 to 12 weeks and querying whether this was a breach of the provisions of the Directive. On 11th September, 2015, the Visa Office in Dublin advised that 'join family' applications received on 6th April, 2015, were currently being considered. It further advised that all applications are processed in order of date received in the Office. A further email of the same date advised that while the Office was aware that the application was an EEA application, the Office was experiencing a huge increase in the amount of such applications and that 'unfortunately processing times have increased due to this.'
On 18th September, 2015, the Visa Office advised that 'as a qualifying/permitted family member where all the required supporting documentation has been received and no queries remain outstanding, a decision can be expected within 12 weeks.'
On 28th September, 2015, the Office was advising that a decision could be expected 'within 16 weeks' where all supporting documents had been received and no queries remain outstanding.
On 22nd December, 2015, the applicant sent an email stating that four months had elapsed since the applications were made and enquiring whether the respondent could advise if a decision had been issued or whether any request for further information has issued that perhaps was not received. On 20th January, 2016, the applicant sent a further email in respect of which a response was received on 26th January, 2016, which stated that 'due to the large volume of applications of this type, the visa office is currently processing applications received in May 2015. While every effort is made to process these applications as soon as possible, processing times will vary, having regard to the volume of applications, their complexity and the resources available.' By reply of the same date, the applicant queried the discrepancy between the May 2015 date, as advised in the respondent's email, with information on Visa Office's website as of January, 2016, namely that the respondent was processing applications received on 25th August, 2015. On 1st February, 2016 the respondent advised that it was unable to provide any more updates.
On 18th March, 2016, the applicant was granted leave to apply for judicial review for the following reliefs:
(i) An order directing the respondent to issue a decision in the matter of the visa applications of the applicant's wife and son;
(ii) An order awarding the applicant damages in respect of costs incurred arising from the respondent's failure to issue a decision;
(iii) An order awarding the applicant damages for suffering caused from the respondent's breach of the applicant's convention rights; and
(iv) An order that the respondent pay the applicants' costs.
In summary, the grounds relied upon are:
• The applicant is an EU citizen exercising his Treaty rights by living and working in the State;
• That the provisions of the Directive require the respondent to consider the applications of qualified non EU family members to join or accompany their EU family member in the State by way of an accelerated process within 28 days and that a decision issued under the Directive attracts an accelerated right of appeal;
• That the respondent has failed to issue a decision notwithstanding the repeated requests made by the applicant to do so;
• That by virtue of the respondent's failure, the applicant's Article 8 ECHR rights are engaged and that the respondent has caused the applicant and his family considerable suffering by way of the respondent's disproportionate interference in the applicant's private and family life;
• That the applicant has incurred justifiable expense directly arising from the respondent's negligence...
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Mahomood v Minister for Justice, Equality and Law Reform
...of the High Court order: see Mahmood v. Minister for Justice [2016] IEHC 600 and Ahsan v. Minister for Justice, Equality and Law Reform [2016] IEHC 691. (The judgments in the Haroon and Habib appeals were incorporated in the Ahsan judgment). The appeals were all heard together by this Cou......