EU Treaty Rights Visa – High Court Challenge of Refusal to Process

 

Niamh Osborne

KOD Lyons appeared before Ms Justice Burns on Tuesday 11th May 2021 on behalf of two clients seeking leave to judicially review the visa offices’ refusal to process a join spouse visa. The court directed that the Minister for Justice and the Minister for Foreign Affairs be put on notice of the application for leave and made the matter returnable to Thursday 13th May 2021. We are seeking an order of mandamus to compel the visa office to issue a decision in our client’s application.

On 29th January 2021, the Immigration Service Delivery at INIS adopted a policy whereby new visa and preclearance applications would not be accepted by their office due to the ongoing Covid-19 pandemic. In addition to this suspension of new application, they are refusing to issue new visas to applicants who had applied prior to the date of implementation. This policy was initially set to expire on 5th March 2021. However, it has been extended on a number of occasions, most on 5th May 2021.

The adoption of such a policy constitutes a violation of EU law. The refusal to process a visa application is contrary to the Citizenship Directive (Council Directive 2004/38/EC), which regulates the free movement of EU citizens and their family members. In addition to this, the refusal to process visa applications is tantamount to an interference with the right to a private life provided for by Article 8 of the European Convention on Human Rights (ECHR) and Article 7 of the Charter of Fundamental Rights of the European Union. Further, Council Recommendation (EU) 2020/1475 of 13 October 2020 on a coordinated approach to the restriction of free movement in response to the Covid-19 pandemic provides that Members State should allow for the admission and transit of EU citizens and their family members.

In tandem with breaches of EU law, the refusal to process visa applications contravenes domestic law. The rights of married couples and family units protected by Article 41 and Article 40.3 of the Constitution are unnecessarily interfered with. The policy enforces a legal distinction in treatment of EU citizens and their non-EU/EEA family members. Such a distinction is unlawful under Regulation 4(3)(b) of the European Communities (Free Movement of Persons) Regulations 2015. In addition to this, by refusing to process visa applications, the State have failed to perform their functions in a manner compatible with State obligations under the ECHR pursuant to s.3 of the European Convention on Human Rights Acts 2003.

Couples and families affected by this rogue policy are left separated indefinitely. In turn this has caused deep distress for countless individuals throughout the country and globally.

If you are affected or concerned with the content above, you can speak to a member of our Immigration Team by calling (01) 679 0780 or emailing stephen.kirwan@kodlyons.ie.