Mahomood v Minister for Justice, Equality and Law Reform

JurisdictionIreland
JudgeMr. Justice Gerard Hogan
Judgment Date26 January 2018
Neutral Citation[2018] IECA 3
Date26 January 2018
CourtCourt of Appeal (Ireland)
Docket NumberRecord No. 2016 562 Record No. 2016 582 Record No. 2016 583 Record No. 2016 584
BETWEEN/
ATIF MAHMOOD

AND

SHABINA ATIF
APPLICANTS / RESPONDENTS
- AND -
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT / APPELLANT
BETWEEN/
MOHAMMED AHSAN
APPLICANT/RESPONDENT
- AND -
MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT/APPELLANT
BETWEEN/
NOOR HABIB, DILBARO HABIB, QUADRATULLAH HABIB, SHAHER HABIB, ABDUL RAHMAN HABIB (a minor suing by his grandfather and next friend NOOR HABIB), FATIMA HABIB (a minor suing by her grandfather and next friend NOOR HABIB), AEISHA HABIB (a minor suing by her grandfather and next friend NOOR HABIB),

and

MAREUM HABIB (a minor suing by her grandfather and next friend NOOR HABIB)
APPLICANTS / RESPONDENTS
- AND -
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT / APPELLANT
BETWEEN/
MOHAMMED HAROON

AND

NIK BIBI HAROON
APPLICANTS/RESPONDENTS
- AND -
MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT/APPELLANT

[2018] IECA 3

Record No. 2016 562

Record No. 2016 582

Record No. 2016 583

Record No. 2016 584

THE COURT OF APPEAL

Visa applications - EU citizens - Non-national family members - Appellant seeking to appeal against High Court decision directing him to take a decision on visa applications within six weeks of the perfection of the High Court order - Whether delays amounted to a breach of Article 5(2) of Directive 2004/38/EC

Facts: The respondent/appellant, the Minister for Justice, Equality and Law Reform, took four separate appeals against two decisions of the High Court (Faherty J) delivered on the 14th October 2016 and the 11th November 2016 respectively directing him to take a decision on the respective visa applications within six weeks of the perfection of the High Court order. The appeals were all heard together by the Court of Appeal. They raised important questions concerning the interpretation and application of Directive 2004/38/EC, namely, the time which may lawfully be taken by the Minister to determine applications for visas for non-national family members of EU citizens to join such EU citizens in the State. In each of the the appeals the first applicant/respondent was the EU citizen who was living and working in the State and their third country spouse (or other family member) was based in one of three particular third countries, namely, Iraq, Pakistan and Afghanistan. The Minister maintained that by reason in particular of specific security considerations peculiar to those states and the surge in recent applications from those states, the visa applications could not be processed speedily. The delays amounted to at least a year and in some instances up to two years. The applicants contended that those delays amounted to a breach of the requirements of Article 5(2) of the 2004 Directive.

Held by Hogan J that it should refer the following draft questions to the Court of Justice pursuant to Article 267 TFEU: 1) Subject to Questions 2, 3 and 4, is a Member State in breach of the requirement in Article 5(2) of the 2004 Directive to issue a visa as quickly as possible to the spouse and family members of a Union citizen exercising free movement rights in the Member State in question where the delays in processing such an application exceed 12 months or more? 2) Without prejudice to Question 1, is a Member State entitled to delay processing or otherwise deciding on an application for a visa pursuant to Article 5(2) by reason of the necessity to ensure in particular by way of background checks that the application is not fraudulent or that the marriage amounts to a marriage of convenience, whether by virtue of Article 35 of the 2004 Directive or otherwise? 3) Without prejudice to Question 1, is a Member State entitled to delay processing or deciding on an application for a visa pursuant to Article 5(2) by reason of the necessity to conduct extensive background and security checks on persons coming from coming from certain third countries because of specific concerns relating to security in respect of travellers coming from those third countries, whether by virtue of Article 35 of the 2004 Directive or otherwise? 4) Without prejudice to Question 1, is a Member State entitled to delay processing or deciding on an application for a visa pursuant to Article 5(2) by reason of a sudden and unanticipated surge in such applications coming from certain third countries which are thought to present real security concerns?

Hogan J held that in light of the conclusion to make the Article 267 reference, the Court would invite the parties to make submissions in respect of those draft questions in the event that they would wish to do so prior to the final submission of those questions to the Court of Justice.

Refer questions to CJEU under Art 267.

JUDGMENT of the Court delivered by Mr. Justice Gerard Hogan on the 26th day of January 2018
1

These are four separate appeals taken by the Minister for Justice, Equality and Law Reform against the two decisions of the High Court (Faherty J.) delivered on the 14th October 2016 and the 11th November 2016 respectively directing him to take a decision on the respective visa applications (the nature of which shall shortly be described) within six weeks of the perfection 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 Court.

2

These appeals all raise important questions concerning the interpretation and application of Directive 2004/38/EC ('the 2004 Directive'), namely, the time which may lawfully be taken by the Minister to determine applications for visas for non-national family members of EU citizens to join such EU citizens in the State. In each of these the appeals the first named applicant is the EU citizen who is living and working in the State and their third country spouse (or other family member) is based in one of three particular third countries, namely, Iraq, Pakistan and Afghanistan. The Minister maintains that by reason in particular of specific security considerations peculiar to these states and the surge in recent applications from those states, these visa applications cannot be processed speedily. The delays amount to at least a year and in some instances up to two years. The applicants contend that these delays amount to a breach of the requirements of Article 5(2) of the 2004 Directive.

3

Largely because all three judgments have identical legal issues and very similar facts, they are all structured in the same fashion and Faherty J. employs very similar language in each of the three cases. The three judgments thus overlap to a very great extent and, accordingly, this is reflected to some extent in this judgment on this appeal.

4

Before considering the legal issues which arise, it is first necessary to set out the facts of each of these three appeals.

The Mahmood appeal
5

Mr. Mahmood is a British citizen who is a quantity surveyor by profession. He married Ms. Atif, the second named applicant, in Pakistan on the 9th August 2013. Although normally resident in the United Kingdom, he apparently travelled to Pakistan in July 2015 and has resided there ever since. He says that he originally intended to travel with his wife to Ireland once she received a visa, which he believed would have been granted within a few weeks.

6

On the 9th July 2015 Ms. Atif had attended a visa application centre in Islamabad in Pakistan and had her biometric information taken. This information was then supplied to the Consulate of Ireland in Karachi on the 13th July 2015 and was designed to support an earlier online application for a visa. This application was then forward to the Irish National Immigration Service ('INIS') in Dublin for processing, but it appears that it was only received on the 10th August 2015.

7

Since no decision had been taken by November 2015, leave to apply for judicial review was granted by the High Court (MacEochaidh J.) on the 16th November 2015. No decision had been taken by the time of the High Court judgment on the 14th October 2016, so that there had been a delay of at least sixteen months in processing the application in Ms. Atif's case. The reasonableness of this delay and whether it is permissible in the light of the requirements of EU Law is, of course, at the heart of this appeal.

The Ahsan appeal
8

Mr. Ahsan is a British and EU citizen who arrived in the State on the 16th March 2015. It appears that he subsequently commenced to work on the 18th May 2015. Initially, he worked in a restaurant/takeaway and then commenced his current employment as a commercial cleaning operative on the 8th June 2015. He married a Pakistani national, Ms. Malaika Gulshan, on the 4th June 2012, in Lahore, Pakistan. He has a 3-year old son, also a Pakistani national.

9

On 7th August 2015, Ms. Gulshan submitted 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 2004 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 the Revenue Commissioners 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 the 10th July 2015, stating that he was a British citizen presently exercising free movement rights by...

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