SE v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Regan
• Judgment Date: 13 January 2017
• Neutral Citation: [2017] IEHC 70
• Docket Number: [2017 No. 94 J.R.]
• Court: High Court
• Date: 13 January 2017

[2017] IEHC 70

THE HIGH COURT

JUDICIAL REVIEW

O'Regan J.

[2017 No. 94 J.R.]

BETWEEN

SE

FK

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – Application for grant visa to non–national – Mandamus – Directive 2004/38 – Derivative right

Facts: The first named applicant sought an order of mandamus for compelling the respondent to determine the application made on behalf of the second named applicant for a visa as a family member of the first named applicant. The first named applicant contended that the respondent had failed to adjudicate the application made by the second named applicant for the grant of visa as a family member. The first applicant asserted that she had been living and employed in Ireland since June 2016 and thus, the second named applicant was entitled for a visa being a family member of an EU citizen.

Ms. Justice O'Regan refused the application filed by the first named applicant. The Court held that under Directive 2004/38, the right to apply for a visa by a non-national was dependent upon the status of the Union citizen and thus, it was a derivative right and not an independent right. The Court found that since the second named applicant had applied for visa even before the first named applicant arrived in Ireland, the said application could not be entertained under Directive 2004/38 as no derivative right of any kind existed at that time.

JUDGMENT of Ms. Justice O'Regan delivered on the 13th day of February,2017

1 The applicants are seeking an order of mandamus compelling the respondent to determine the application made on behalf of the second named applicant for a visa as a family member of the first named applicant who is an EU citizen exercising her right of free movement.

2 Submissions have been filed on behalf of the applicants, further to Court direction of the 6th February, 2017.

3 The first named applicant is a British national and the statement of grounds state that she has been living and working in Ireland since June, 2016. She is entitled to do so as a citizen of the European Union, exercising her right of free movement. An application was made, according to the statement of grounds, in or about the month of June, 2016 for a visa for the second named applicant to enable him to travel to the State to reside with the first named applicant. It is complained that there has been no adjudication and the...