Clarification Requested From the Court of Justice of the European Union on Entry Visa Processing Times for Family Members of EU Nationals

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At a Glance

The Irish Court of Appeal will shortly ask for guidance from the Court of Justice of the European Union (CJEU) on what constitutes a reasonable time frame for a Member State’s immigration authorities to process entry visa applications for non-EU national family members of EU nationals residing in the respective host Member State. This question arose due to litigation in Ireland challenging long standing and significant processing delays regarding entry visas sponsored by EU nationals for their non-EU national family members, particularly from Afghanistan, Iraq and Pakistan, due to a surge in the number of these applications and alleged security concerns. The response from the CJEU could clarify the time limits for processing such entry visa applications which will apply to all EU Member States.

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The situation

The Irish Court of Appeal delivered their judgment on January 26, 2017 which included the drafted questions to the CJEU in paragraph 62.

Next week, the two sides in the case, the Irish government and the applicants, will provide the Irish court with submissions regarding these draft questions. The Irish Court may amend the questions, and the final, agreed upon questions will then be formally referred to the CJEU.

A closer look

• Processing delays. Processing delays of 12 months or more have been ongoing for the last two to three years, but have mostly affected entry visa applications sponsored  by EU nationals residing in Ireland in respect of family members from Afghanistan, Iraq and Pakistan. Other nationalities have generally not been affected by these delays.
• EU requirement for non-EU family members. According to EU law, entry visa applications for non-EU national family members of EU nationals must be processed “as soon as possible and on the basis of an accelerated procedure.” The Irish High Court has already determined in this case that delays in excess of six months are in breach of EU law, which the government had appealed to the Irish Court of Appeal.

 

Background

• Free movement of persons. The right of EU nationals to sponsor non-EU national family members is based on the EU principles of free movement of persons; if an EU national is working or residing with sufficient resources in another EU Member State, certain non-EU national family members are entitled to join the EU national under EU law.
• Additional screening. Due to alleged security concerns and other factors, the Irish authorities indicate they have adopted a practice of additional scrutiny on entry visa applications from certain nationalities, which has caused significant adjudication delays.
• Geographical impact: This case is of EU wide relevance as the decision of the CJEU will be binding on all EU Member States.

 

Impact on foreign nationals. Since delays for affected foreign nationals have persisted for the last two to three years, affected foreign nationals are likely well-informed on this matter already. Any benefit to foreign nationals will only arise after the CJEU has responded and will depend on the nature of its response.

Looking ahead

It is likely to take several months before the CJEU can deliver a ruling, even if the CJEU agrees to consider this case under an accelerated procedure.  The Irish case and any policy and legal changes based on the result of the case will remain pending until a ruling is delivered by the CJEU.

This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen or send an email to [email protected].