Mahmood v Minister for Justice and Equality

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Faherty
Judgment Date14 October 2016
Neutral Citation[2016] IEHC 600
Docket Number[2015 No. 627 J.R.]
Date14 October 2016

[2016] IEHC 600

THE HIGH COURT

JUDICIAL REVIEW

Faherty J.

[2015 No. 627 J.R.]

BETWEEN
ATIF MAHMOOD
SHABINA ATIF
APPLICANTS
AND
MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT

Asylum, Immigration & Nationality – Visa application of non-national family member of EU citizen – Delay – Right to invoke art. 5 of the Directive 2004/38/EC – European Communities (Free Movement of Persons) (No. 2) Regulations 2006 – Mandamus

Facts: The applicants sought an order of mandamus for directing the respondent to determine the pending visa application of the second named applicant. The applicants contended that there was an inordinate delay on the basis of accelerated process to make a decision on the second named applicant's application for an Irish visa as a qualifying member of the first named applicant and thus, breached reg. 4(3)(b) of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 and art.5 (2) of Directive 2004/38/EC. The applicants contended that the decision on the second named applicant's visa applicant was not taken within a reasonable period and there was breach of fair procedures and other statutory rights. The respondent argued that the applicants were not entitled to invoke art. 5 of the said Directive as the first named applicant had not exercised his EU treaty rights and not established himself in the State. The respondent contended that there was a rational system to process the visa applications of qualifying family members of EU citizens, under art. 5 (2) of the Directive and that the delay was justified in view of necessary enquiries required to be made. The respondent contended that an order of mandamus was not warranted.

Ms. Justice Faherty granted the relief sought by the applicants and directed the respondent to take a decision on the second named applicant's visa application within six weeks of the perfection of the present order. The Court held that the applicants were entitled to treat the delay as unreasonable so as to constitute a breach of the Directive and to justify the application for mandamus. The Court found that the first named applicant was an EU citizen who had a right to entry and free movement across the territory of the Union and the second named respondent being a non-national qualifying family member was entitled to invoke art. 5 and 6 of the Directive. The Court found that there was no adoption of any particular measure by the respondent instead it was a respondent's failure to process the visa application. The Court held that the applicants were entitled to treat the delay as equivalent to refusal and thus, an order of grant of mandamus was justified.

JUDGMENT of Ms. Justice Faherty delivered on the 14th day of October, 2016
1

By order of Mac Eochaidh J., dated 16th November 2015, leave was granted to the applicants to seek judicial review by way of an order of mandamus directing the respondent to determine the outstanding Irish visa application made on or about the 24th July, 2015 by the second named applicant. Leave was also granted to seek declaratory relief and damages.

Background
2

The first named applicant is a British and EU citizen. He gives his profession as a Quantity Surveyor. The second named applicant is a Pakistani national. As deposed to in the first named applicant's affidavit sworn 3rd March, 2016, he married the second named applicant on 9th August, 2013, in Pakistan. He avers that although normally resident in the UK, he travelled to Pakistan on 20th July, 2015, and has remained there since. He states that he originally travelled there for a holiday to spend some time with the second named applicant, 'intending to accompany her to the State when she received a visa' which it was believed would be granted 'within in a few weeks'. The first named applicant states that he is not working in Pakistan and that he and the second named applicant are residing with the latter's parents.

3

According to the affidavit sworn by the applicants' solicitor on 11th November, 2015 grounding the within proceedings, in and around the end of June, 2015 an online application was made on behalf of the second named applicant for a short stay single journey Irish visa as a qualifying family member of the first named applicant.

4

On 9th July, 2015, the second named applicant attended the visa application centre in Islamabad where she had her biometric information taken. She provided a number of documents in support of her application, namely a signed visa application summary print out, passport photographs, her original Pakistani passport, a true copy of the bio-data page of the first named applicant's British passport, the applicants' marriage certificate and an attested English translation of the marriage certificate. In response to the question on the visa application as to whether the second named applicant had been refused a visa she disclosed that she had been refused a visa by the United Kingdom. As appears from the affidavit of Mr. Gerry McDonagh, Principal Officer in the Visa Division of the Irish Naturalisation and Immigration Service (INIS) in the respondent's department sworn 12th February, 2016, the second named applicant applied for the UK visa on 17th June, 2014 and it was refused by the British Embassy in Dubai on 29th June, 2014.

5

On 24th July, 2015, the respondent received, via the Honorary Consulate of Ireland in Karachi, a signed 'Letter of Application' from the second named applicant dated 13th July, 2015 wherein it was stated that the second named applicant was 'applying as the qualifying SPOUSE of an EEA citizen to ACCOMPANY him when he moves to the Republic of Ireland to exercise his treaty rights by working in the state.' The respondent was also provided with a 'statement of confirmation to exercise treaty rights in the state' dated 13th July, 2015, which stated 'I, [the first named applicant] the British citizen, from whom my spouse, [the second named applicant], derives rights under Directive 2004/38/EC confirm that I intend to exercise treaty rights in the state of Ireland.' This document also stated that the first named applicant was presently in Pakistan with his spouse. It went on to recite: 'On the grant of my spouse's visa, I will travel to Dublin from Pakistan with my spouse. I intend to stay in a Hotel with my spouse until we can rent suitable accommodation. I request that you grant my spouse's visa application to enable her to accompany me to exercise treaty rights in the State of Ireland.' According to the first named applicant's affidavit sworn on 3rd March, 2016, he signed a copy of the 'statement of confirmation' that was provided to the respondent in support of the visa application. It appears that the applicants received assistance in making the visa application from Immigration Assistance Services (IAS), an agency with a registered company address in the UK. The full extent of their involvement remains unclear, which the respondent contends is a matter of some concern.

6

On 9th October, 2015 an email and a letter was received by the Irish Consulate in Karachi from IAS, with reference to the second named applicant's visa application. The letter stated, inter alia:

'The application should have been processed by way of accelerated procedure within a period of four weeks pursuant to Regulation 4 (3) (b) and Article 5 (2) of the Regulations/Directive.

Approximately 8 weeks have passed since our clients' application was submitted and a decision is still not forthcoming.

We call upon you to issue a decision on our client's application for a visa to the state within seven days from the date hereof failing which we shall proceed to issue judicial review proceedings in the High Court without further notice to you in circumstances where our client is suffering significant prejudice as a result of your failure to process the application as required by law...'

7

On 12th October, 2015, IAS were informed that the correspondence had been forwarded to the respondent's Dublin visa office and that any 'further news or correspondence may be directed directly there' by email.

8

On 30th October, 2015, the applicants' solicitor requested that a decision be made on the visa application within seven days and advised that in default of same judicial review proceedings would issue. On 2nd November, 2015, the respondent's Dublin visa office advised that a signed letter of authority from the second named applicant was required under data protection legislation and on 3rd November, 2015 the applicants' solicitor forwarded an undated signed statement of authority from the second named applicant.

9

On 13th November, 2015, the respondent advised:

'The visa application referred to was received in the Visa Office, Dublin on 10/08/2015. The application is currently awaiting examination.

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 within a reasonable timeframe, processing times will vary; having regard to the volume of applications, their complexity and the resources available.

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 20 weeks.

As you will appreciate, in order to be fair to all applicants, applications are processed in order by date received in this office.'

10

Leave to seek judicial review was sought on 16th November, 2015.

11

The grounds upon which leave was granted are:

(i) The respondent, in failing to make a decision on the second applicant's application for an Irish visa as a qualifying family member of the first applicant has failed to make a decision as soon as possible and on the basis of an accelerated process, and is acting in breach of Regulation 4 (3) (b) of...

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7 cases
  • SE v Minister for Justice and Equality
    • Ireland
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    • 13 January 2017
    ...or join” as per Article 2.2. 6 The applicant relies on the judgment of Faherty J. in Mahmood & Anor v. Minister for Justice and Equality [2016] IEHC 600 which was handed down on the 14th October, 2016 to the effect that there is no requirement on an EU national to be “established” in Irelan......
  • BA v Minister for Justice and Equality
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    ...obligations of time limits resulting from Community law. 28 The applicant refers to Mahmood & Anor v. Minister for Justice and Equality [2016] IEHC 600 being a judgment of Faherty J. delivered on the 14th October, 2016. The Court granted an order as there was no decision and there appeared......
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    ...application, rightly suggested that a judicial review remedy might be available. See also Mahmood v Minister for Justice and Equality [2016] IEHC 600 where Faherty J considered the issue of delay involving visa applications pursuant to Directive 2004/38/EC. See also T v Minister for Justice......
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