What are EU Treaty Rights
Citizens of the European Union and their family members are entitled to exercise free movement within the territory of the member States of the EU. Directive 2004/38/EC as implemented in Ireland by the European Communities (Free Movement of Persons) Regulations 2015 was brought into operation in Ireland on 1st February 2016.
In Ireland, EU Treaty Rights Law does not apply to Irish Citizens living in Ireland. It only applies to EEA Nationals of other member States who are moving to or residing in Ireland, for example a French National who moved to and resides in Ireland.
The 2004 Directive and the 2015 Regulations set out family members in to two different categories: “Qualifying Family Members” and “Permitted Family Members”
Qualifying Family Member – Definition
- The Union Citizen’s spouse or civil partner
- A direct descendant of the Union citizen or of the Union Citizen’s spouse or civil partner and is:
- Under the age of 21 or
- A dependent of the Union Citizen or of his or her spouse or civil partner or
- A dependent direct relative in the ascending line of the Union Citizen or his or her spouse or civil partner.
A Permitted Family Member is defined as
- Irrespective of his or her nationality, is a member of the family (other than a qualifying family member) of a Union Citizen to whom paragraph 2 applied or who in the country from which the person has come
- Is a dependent of the Union Citizen,
- Is a member of the household of the Union Citizen or
- On the basis of serious health grounds strictly requires the personal care of the Union Citizen OR
- Is the partner with whom a Union Citizen has a durable relationship, duly attested.
Qualifying Family Member versus Permitted Family Member
The rights of qualifying family members are automatic whilst permitted family members must apply to be recognised as a permitted family member in order to become beneficiaries of the free movement laws.
Free Movement Rights of Family Members of EU Citizens
Citizens of the EEA can reside in another member State of which they are not a national without restrictions for up to three months. After three months, the EEA Citizen must comply with certain requirements in order to continue to benefit from EU free movement laws. The EU Citizen must be one of the following:-
- A worker; or
- A self employed person; or
- Have sufficient resources for themselves and their family member not to become a burden on the State with comprehensive illness insurance cover; or
- Enrol in an educational establishment accredited or financed by the State for the principal purpose of following a course of study there and have comprehensive sickness insurance in respect of himself or herself and his or her family members and by means of a declaration or otherwise, satisfies the Minister that he or she has sufficient resources for himself or herself and his or her family members not to become an unreasonable burden on the social assistance system of the State
The above are commonly referred to as the EU Citizen exercising their EU Treaty rights. In order for a family to qualify for residence in the State, the EEA National must satisfy one of the above.
In order to move to the State, non-EEA National family members have the option of applying to accompany the EU Citizen to the State or joining the EU Citizen in the State. Visa required nationals must apply for a visa to enter Ireland. This visa application is free of charge and should be processed by way of an accelerated process.
Non visa required nationals do not need a visa to enter the State and should notify the Immigration Officer at the point of entry to the State that they are joining or accompanying the EU Citizen in order to seek permission to enter. The EU Citizen does not need to be exercising their EU Treaty rights in the State for the family member to be granted a visa or permission to enter the State.
Contact Sinnott Solicitors today for more information on EU Treaty Rights!
Application for a Residence Card
If a family member wishes to reside in the State with the EEA National/EU Citizen then they must apply for a residence card following entry. If successful, they will be issued with a residence card allowing them to reside in the State for a five year period. This also allows them to work, to study, to travel into and out of the State freely along with other benefits.
Applications for a residence card must be processed by law within a period of six months from receipt of the application. The relevant application forms upon which their application should be based are a Form EU1 for a qualifying family member and a Form EU1A for a permitted family member.
Successful EU residence cards applicants must then register at the Garda National Immigration Bureau (GNIB) while unsuccessful applicants are entitled to have the decision reviewed by way of the review procedure set out in the directive and the regulations.
Application for a Permanent Residence Card
After five years of residency on the initial residence card, EEA Nationals/EU Citizens and their family members may apply for a permanent residence card provided that they have resided in the State during the five year period in conformity with the terms of the regulations and the directive. At this point, many people will apply for Irish Citizenship/Naturalisation. Applications for a permanent residence card are submitted on a form EU3 to the EU Treaty Rights Division of the Department of Justice and Equality.
Retention of Residence Applications following Divorce, Death or Departure of EU citizen
The directive and the regulations also provide for the retention of residence by the non-EEA family member on a personal basis in the event of divorce, annulment or marriage or termination of a registered civil partnership or in the event of death and in other certain circumstances. Applications for retention of residence cards are submitted on a Form EU5 to the EU Treaty Rights Division of the Department of Justice and Equality.
Sinnott Solicitors receive numerous queries from clients regarding their immigration status when certain unavoidable situations arise affecting their EU Treaty Rights residence permission. This is usually the case when an person obtained an EUFAM 4 residence permission to remain in the State on the basis of their marriage to an EEA National and that relationship has subsequently broken down. When that happens, Applicant’s want to retain their residency on an individual basis as opposed to residency based upon their marriage to an EEA National. Separation can be very difficult but it can be extremely stressful when combined with the threat of revocation of residency. Other circumstances which would lead to an application for retention of residency would be in the event of the death of the EU citizen or in the event of the EU citizens departure from the State.
The Legal basis for Retention Permission
Directive 2004/38EC which is given effect in Ireland by The European Communities (Free Movement of Persons) Regulation 2015 (the “Regulations) allows for retention of residence in certain circumstances. If you have previously been granted an EU1 residence card but your circumstances have changed such that:
- The EU Citizen has died or
- The EU Citizen has departed from the State leaving the non-EEA National the custodian of minor children who have enrolled in an educational establishment in the State for the purpose of a course of study
- Your marriage of civil partnership to the EU Citizen has been dissolved through divorce, annulment or Civil Partnership then you may be entitled to make an application for retention of a residence card.
Death of an EU Citizen – The law on retention of Immigration Permission
In the case of a death of an EU Citizen, the interpretation is clearly more straight forward. Regulation 9 states that certain criteria must be met in order to avail of the retention permission. It requires that the following criteria are met:
- an Applicant must have resided in the State with the EU Citizen for at least one year prior to the death of the EU Citizen.
- an Applicant must be employed or self-employed in the State or possess sufficient resources to support themselves and any dependents
if the EU Citizen’s children are enrolled in education in the State for the purposes of following a course of study, then the child and the parent who has custody of the child will be entitled to reside int the State until the completion of the course of study.
Departure of an EU Citizen – The law on retention of Immigration Permission
In the case of the departure of an EU Citizen from the State, such an application can only be made where there are minor children of the EU Citizen of whom the Applicant has legal custody of in the State. The basis of that legal custody of minor children must be set out and can be by agreement with the EU Citizen or by Court Order. When the EU Citizen has departed from the State and his or her children are resident in the State and where those children are enrolled in an educational establishment for the purpose of following a course of study, then the children and the parent who has custody of the child will be entitled to reside in the State until completion of the course of study.
EU Treaty Rights – Retention of Residence if Divorced or Separated
Divorce obtained while the EU Citizen is exercising free movement rights in the host State does not affect the right of the non-EU Spouse to reside in the host State provided that the marriage has lasted for at least three years with a least one of those years in the host State prior to the divorce proceedings commencing and provided that the non-EU Spouse is not a burden on the State.
Sinnott Solicitors have lead the way in clarifying the law in this area. In the case of our client Khalid Lahayani known as Khalid Lahayani .v. Minister for Justice and Equality 2013 IEHC176, the Irish High Court held that the Directive must be interpreted expansively to provide for the occasions where marriages and civil partnerships do not work out and where the EU Union worker simply deserts and quits the host State before divorce proceedings are contemplated.
The case is clearly intended to protect non-EU Spouse from having their residence revoked and being expelled from the State because their legal status in the State has been altered by the breakdown of their marriages and a subsequent application for Divorce.
The court concluded in that case that Directive must be interpreted to allow the non-EU spouse a reasonable time to commence and prosecute divorce proceedings before rights of residence are revoked.
However in a subsequent case Kuldip Singh .v. Minister for Justice and Equality C-218/14 which dealt with the rights of third country nationals and family protection in the context of divorce and retention of EU Treaty Rights, the Court of Justice of the European Union considered whether the non-EU Spouse retained his right of residence where divorce followed after the EU National had left Ireland.
The Court held that Article 13(2) of the Directive meant that divorced third country national’s such as Mr. Singh do not retain a right of residence because the EU Spouse had left the host member state before the commencement of divorce proceedings. The onus is on the third country national to expeditiously begin divorce proceedings in order to retain their rights of residence which in many ways does not allow a couple a chance for reconciliation but that is another story!
The Court considered whether a non-EU Citizen retains a right of residence in the host member State during the period before divorce following the departure of an EU Citizen from the host member State.
The Court held that the non-EU Citizen retains their right of residence if, prior to the commencement of the divorce proceedings, the marriage lasted for three years including one year in the host member State. However, the Court held that the EU Citizen’s departure would have led to the right of residence of the non-EU Spouse lapsing and the subsequent divorce proceedings could not lead to its revival because the Directive refers to “retention” of an existing right of residence but not to the revival of an already lapsed right of residence. Therefore, the Applicant could only be successful where both spouses had resided in the host member State until the time of the divorce.
In that case, divorce proceedings had been initiated outside of the State after the departure of the EU National and the Court held that the Applicant had lost the right to reside in the host member State.
Incidentally, the Court also concluded that the resources of the non-EU Spouse must be taken into account when determining whether the EU Spouse had sufficient resources. It was not relevant where the resources came from provided the resources were lawfully acquired.
How to retain your EU Treaty Rights Residence in Ireland after the breakdown of a marriage
There is a lot of confusion in this area. It is now quite clear from the interpretation that has been given to Directive 2004/38EC by the Courts that an Applicant may only apply for retention where there arises Divorce or annulment of marriage to the EU Citizen or annulment or dissolution of civil partnership with EU Citizen.
Duration of the Marriage
It is a general requirement in respect of an application for retention of immigration status that the parties have been married for at least three years beforehand with at least two years spent residing in Ireland. Regulation 10 of sets out certain criteria in order to meet a right of residence after divorce or annulment of a marriage or dissolution of a civil partnership. Apart from the fact that a person is required prior to initiation of the proceedings to have lived for one year in the State and to have had a valid and subsisting marriage for three years all the while the EU Citizen exercising their EU Treaty Rights in the State at the time that the Decree of Divorce or disillusionment was made, the retention of such rights of residence may also be warranted by particularly difficult circumstances such as the Applicant having been a victim of domestic violence while the marriage or civil partnership was subsisting.
Preparing an application for retention of EU Treaty Rights
It is absolutely essential that an application is presented to the EU Treaty Rights Division of the Department of Justice in a very comprehensive and clear manner. As Immigration Lawyers, Sinnott Solicitors have years of experience in dealing with retention applications. Every application should outline in detail the following matters:
- The Applicant’s immigration history
- The Applicant’s employment history and prospects in the State
- The Applicant’s relationship history with the EEA National
- The character and conduct of the Applicant
- A very full and comprehensive set of documents to support the above an analysis and outline of the law in the area
- Legal submissions in support of the application
- Completed form EU5
Activities of the Applicant to become eligible to apply for retention
If an Applicant wishes to retain a residence card following the death of the EU Citizen or the divorce, annulment or dissolution of a marriage or civil partnership with an EU Citizen and subsequently wishes to obtain a permanent residence card, the Applicant must be involved in one of the following categories:
- Residing with sufficient resources which means that the Applicant has sufficient resources to maintain themselves and any dependents in the State and also holds comprehensive health insurance for the Applicant and any dependents. That is to ensure that the Applicant or the Applicant’s dependents do not become an unreasonable burden on the social assistance scheme of the State.
Successful Application for Retention
In the event that an Applicant is successful in the retention application, then the Applicant will be permitted to retain the residence card and/ or apply for a permanent residence card depending on the circumstances.
When making an application for retention of EU Treaty Rights, we request the Department of Justice to grant a temporary permission to reside in the State whilst the application is pending. The temporary permission is granted for a six month duration which may be extended until the outcome of the application.
At present the Department of Justice state that the application could take up to six months. However, that in our experience is not the case. We have made many retention applications where those applications are taking well in excess of one year and in some cases over two years to process.
Delay in processing Retention Applications
Clearly a delay as outlined above constitutes an unreasonable and lengthy delay in processing retention applications. In the event that the delay in processing an application is unreasonable and disproportionate to any object to be achieved in terms of public policy or security, it may lead to the requirement for a judicial review application before the High Court in order to compel the EU Treaty Rights Division to process the application.
Changes in circumstances
Sometimes the Applicant’s circumstances change after the retention application is made. The onus is on each Applicant to keep the Department of Justice updated regarding their circumstances and to submit any relevant supporting documents in relation to new circumstances.
If you are a non -EU citizen married to or in a civil partnership with an EU citizen and if you are concerned about your immigration status because the marriage has broken down or you have separated, Sinnott Solicitors would be happy to assist you in relation to your immigration case. Please do not hesitate to contact us at +353 1 406 2862 or email@example.com. You will find a lot more information about EU Treaty Rights residence permission and revocation on our website www.sinnott.ie
If you are a non-EU citizen married to or in a civil partnership with an EU citizen and if you are concerned about your immigration status because the marriage has broken down or you have separated, contact Sinnott Solicitors Today!
Marriage of Convenience Refusals in EU Treaty Rights Cases
Sinnott Solicitors receive many queries from Applicant’s whose residence card has either been revoked or the Applicant may be faced with a threat of revocation of their residence card because the Department of Justice are of the opinion that the Applicant has entered into a marriage of convenience in order to gain immigration advantage. Directive 2004/38/EC on the right of citizens of the union and their family members to move and reside freely within the territory of the member states (“the Directive”) which is given effect in Ireland by The European Communities (Free Movement of Persons) Regulation 2015 (“the Regulations”) provides a right of family members to reside in a member state with their spouse.
Growing trend to refuse applications based on a marriage of convenience finding
There appears to be a growing trend within the Department of Justice to refuse applications on that basis even in circumstances where the marriage appears to be genuine and subsisting. It is extremely difficult for applicants in the present climate to prove that the marriage is genuine and subsisting and that their spouses are exercising their EU Treaty Rights within the meaning of the Directive. Sinnott Solicitors are presently taking challenges before the High Court by way of Judicial Review for clients where the marriage is clearly genuine within the meaning of the Directive.
Quite often, the decision of the Department states that the Applicant sought to rely upon documentation which they knew to be false or misleading or that the Applicant has engaged in an abuse of rights in accordance with Regulations 27 of the Regulations in some form or other.
Consequences of Marriage of convenience finding
If the Minister is satisfied that the marriage to an EU Citizen is one of convenience in accordance with regulation 28 of the European Communities (Free Movement of Persons) Regulations 2015 (the Regulations) and that the marriage was contracted in an attempt to obtain an immigration permission which the Applicant would not otherwise be entitled, then the Minister will refuse the application for a permanent residence card and revoke the residence card. Such a decision can have disastrous consequences for an Applicant. It often means that a person’s citizenship application also becomes unravelled and revoked because of the decision of the Minister in relation to a marriage of convenience finding.
In the recent case of UM (a minor) suing by his father and next friend MM) and the Minister for Foreign Affairs and Trade and Passport Appeals Officer 2020 IECA154, the Minister for Justice refused a child an Irish Passport after his father’s refugee status was revoked in 2014 on the basis that his father had given false and misleading information when he sought asylum and had not disclosing that he had previously sought asylum in the UK. It was decided that residence permission granted to the father upon which the boy relied to ground his claim for Citizenship was obtained through false and misleading information. The revocation of the father’s refugee status effectively unravelled the Irish Citizenship that had been conferred upon his children because of the finding in respect of the documentation that the father had submitted.
The above case is a as an example of how a revocation of permission can have a disastrous domino effect upon an entire family.
If the Minister is satisfied that the marriage to the EU Citizen is one of convenience, the marriage will be deemed to be void ab initio which effectively means that the marriage was invalid from the outset and therefore never existed in law for the purpose of the EU Treaty Rights application. That leaves the Applicant in a situation whereby the residence card is revoked and the Applicant no longer has any valid legal permission to remain in the State.
At that stage, the EU Treaty Rights application is closed and a notification under Section 3(4) of the Immigration Act 1999 is furnished to the Applicant. That is the notification whereby the Minister proposes to make a Deportation Order in respect of the Applicant. The Applicant will have three options as follows:
- Leave the State before the Minister makes a final decision
- Consent to a Deportation Order
- Submit representations to the Minister under Section 3 of the Immigration Act 1999 as to why a Deportation Order should not be made
Proving that a genuine relationship exists
It is absolutely essential that Applicants adequately address any concerns that the Department of Justice may raise in relation to the genuineness of the marriage. If the Minister decides to refuse an application for a permanent residence card, the Applicant may request a review of the decision by the EU Treaty Rights Division of the Department of Justice. The application for a permanent residence card and if necessary the review application must deal very thoroughly with the marriage issue. In light of the trend that we are currently seeing and the number of refusals based upon marriage of convenience, it is our advice that an application for a permanent residence card must be approached from the point of view of proving from the very outset of the residence card application by way of documentation, personal statements, detailed relationship history proofs and any other documentation that will show the Minister that the marriage is genuine.
We submit that it should not be the case that an Applicant should be put through such rigorous obstacles in order to show that they are in a genuine relationship. However, once an Applicant can put forward each and every piece of information available to show that the marriage is genuine from the outset, then that Applicant through their Immigration Solicitors will be in a better position to challenge any refusal where the Minister contends that the Applicant has engaged in an abuse of rights in accordance with the regulations.
Legal challenges to a Marriage of convenience Decision
When an application for a permanent residence card is refused because the Minister is not satisfied that the marriage is genuine, it is open to the Applicant to request a review under regulation 25 of the regulations. The review application must be made on the Form EU4 within 15 working days and should be sent to the Review Unit of the EU Treaty Rights division. The review application must be very detailed and must set out once again, all of the reasons why the marriage is genuine and not one of convenience. It must also rebut all allegations made by the decision maker in respect of the genuineness of the marriage.
Representations to the Minister under Section 3 of the Immigration Act 1999 (as amended)
If the review application is unsuccessful, then the Applicant is left with no option but to make representations to the Minister in accordance with the Immigration Act 1999 as previously discussed above.
Judicial Review of a marriage of convenience finding
If an Applicant can show that the relationship is genuine and if the decision maker has not proven otherwise or has drawn inferences which they should not have drawn in light of the genuineness of the relationship, then an Applicant can challenge a marriage of convenience refusal by way of a Judicial Review application before the High Court. Sinnott Solicitors prepare Judicial Review applications of refusals based upon a marriage of convenience finding.
In the case of Muhammad Asif .v. The Minister for Justice High Court August 2019, the Applicant sought orders quashing a review decision of the Minister and the Minister’s proposal to make a deportation order against him in circumstances where the Minister had decided that the marriage was one of convenience contracted for the purpose of obtaining a residence card. In that case, the High Court held that the concept/term of marriage of convenience did have meaning and effect in the law of the State. The High Court rejected the Applicant’s judicial review application and held that any rights or entitlements under the regulations would cease if it was found that those rights had been acquired by fraudulent means.
The High Court and the Supreme Court of Ireland have considered some marriage of convenience challenges. Sinnott Solicitors have recently taken challenges in respect of marriage of convenience refusals to the High Court by way of Judicial Review application. The circumstances of every case will be different but it remains the fact that a number of marriages are genuine and not marriages of convenience which are contracted to give immigration advantages to the Applicant.
Typical reasons for marriage of convenience refusals
We have noticed from the numerous decisions which we receive that the Department of Justice examine various factors and reasons when coming to a decision to revoke permission or a decision to refuse permission based upon a marriage of convenience. A non-exhaustive list of examples of those reasons are as follows:
- Flight details of the EU Citizen
- Dates of departure and return to the State of both parties
- Employment arrangements of the EU Citizen
- Examination of documentation provided with the application
- Tax records in the context of employment
- Income details of the EU Citizen
- Information from the EU Citizen’s member state of origin
- Information in respect of the EU Citizen’s employer
- Information regarding the Applicant’s relationship with the EU Citizen and assumptions made in respect of the relationship on the basis of the interpretation of the information provided or not provided!
- Documentation submitted that is found to be forged, invented for the purpose of the application and not genuine leading to a determination of fraud against the applicant
The role of the Gardai and the Registrar of Marriages
In 2015, An Garda Siochana set up “operation vantage” in order to tackle potentially bogus marriages. We have come across a number of Applicants who have been investigated by An Garda Siochana where their residential properties have been searched and other means used in order to investigate whether the marriage is genuine.
The Registrar of Marriages may also receive objections to a proposed marriage where a marriage of convenience is suspected. That means that notifications to marry can be cancelled, abandoned or withdrawn following engagement or interviews conducted with a Registrar. Under the Civil Registration (amendment) Act 2014, the Registrar has the right to investigate and decide whether an intended marriage would be a marriage of convenience for immigration purposes. That is a very wide power and some of those decision have been the subject of Judicial Review challenges before the High Court. Statistics from the Department of Employment Affairs and Social Protection showed that 41 cases of suspected Marriage of Convenience were referred for investigation in 2019. Twenty marriage ceremonies were ultimately prevented from proceeding. The power afforded to the Marriage Registrar is extremely wide and if circumstances arise where the Registrar has erred in law in applying that power, that may give rise to a challenge by way of judicial review.
What to do when your application for a permanent residence card is refused based upon a marriage of convenience finding
If you are a non-EU Citizen married to or in a civil partnership with an EU Citizen and if you are concerned about your immigration status because the Minister is of the opinion that the marriage is one of convenience and contracted in order to gain immigration advantage, then Sinnott Solicitors would be happy to assist you in relation to your immigration case. Please do not hesitate to contact us at +353 1 406 2862 or firstname.lastname@example.org
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Supreme Court decision on Marriage of Convenience – Marriage of […]
If you are a non-EU Citizen married to or in a civil partnership with an EU Citizen and if you are concerned about your immigration status contact Sinnott Solicitors Today!
Delay in processing EU Treaty Rights Review Applications
Clearly a very lengthy delay in processing applications for Residence Cards and in Review applications may lead to a necessity to bring a Judicial Review in order to compel the Minister to make a decision in the matter. In the of the event that the delay in processing an application/review is unreasonable and disproportionate to any object to be achieved in terms of public policy or security, it may lead to the requirement for a judicial review application before the High Court by immigration solicitors in order to compel the EU Treaty Rights Division to process the application.
After 31st December 2020, the rights of family members of British Citizens will cease due to the end of the Brexit transition period. There is little or no clarify from the Immigration service as to what will happen to pending applications after that date.
Many of our clients are waiting for decisions for over 18 months and in some cases over two years. That is a direct contravention of EU Law which permits Member States to make a decision within a period of Six months. Sinnott Solicitors are currently in the process of taking a number of cases before the High Court for clients who are experiencing such delays.
As highlighted in previous Articles on our website, over the past number of years Sinnott Solicitors have instituted High Court Judicial Review proceedings on behalf of clients in a number of cases seeking orders of Mandamus to compel the Visa Office to issue decisions on outstanding visa applications for family members of EU nationals. These applications were submitted pursuant to Council Directive 2004/38/EC and The European Communities (Free Movement of Persons) Regulations 2015 with the EU citizens already residing in the state exercising their EU Treaty Rights or intending to do so. We are aware of applications submitted over two years ago which are still awaiting decisions and unfortunately the delays at present continue.
In early 2016 The High Court directed that two of our clients cases be heard as test cases to determine how long the visa office can take to issue a decision on an application. Those cases eventually made their way to the European Court of Justice.
A judgement was delivered in the first test case on the 14th of October 2016 (Atif & Ors v Minister for Justice and Equality) with the judge ordering that a decision should issue on the application within six weeks of the court order.
A judgement was delivered in the second test case (Ahsan & Ors v Minister for Justice and Equality) on the 28th of October 2016 with the court again ordering that a decision should issue within six weeks of the date of the perfection of the court order.
The decisions of the High Court were subsequently appealed to the Court of Appeal by the Minister for Justice and Equality.
The appeals were heard before the Court of Appeal on the 15th of December 2017 before the President Mr Justice Ryan, Mr Justice Hogan and Mr Justice Peart.
Given the importance of the matter and the significant legal issues being litigated having regard to the practical implications and effects of key provisions of the 2004 Directive, the Court has decided to make a reference to the European Court of Justice in Luxembourg pursuant to Article 267 of the Treaty on the Functioning of the European Union.
The Article 267 reference procedure gives the Court of Justice jurisdiction to deliver preliminary rulings on the validity and interpretation of EU law in an EU member state. The primary purpose of Article 267 is to ensure that EU law has the same meaning and effect in all of the EU Member States and that the law is applied correctly.
The court delivered judgement on the 26th of January 2018 proposing the following draft questions to the European Court of Justice with regard to the delay in processing their EU Treaty Rights applications:
- Is a member state in breach of the requirement in Article 5(2) of the Directive 2004/38/EC 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 delays in processing such an application exceed 12 months or more?
- 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.
- Is a member 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 certain third countries pursuant 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.
- 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.
The European Court of Justice declined to issue a preliminary ruling on the cases in 2019 as the cases had effectively become moot by the time they reached the ECJ. The cases however were very significant and highlighted the delay in dealing with those applications as exceptional points of legal importance at European level.
Sinnott Immigration Lawyers – EU Treaty Rights Services
Sinnott Solicitors have established an excellent reputation in guiding their clients through all aspects of EU Treaty Rights applications. We provide very comprehensive advice to our clients from the initial visa in order to enter the State, the relevant application to reside in the State under EU Law, review application, retention application and judicial review applications to the High Court in respect of any ultimate refusal of EU Treaty rights applications. Sinnott Solicitors have had enormous success in challenging refusals of EU Treaty Rights applications before the High Court, the Court of Appeal, the Supreme Court of Ireland and the European Court of Justice.
If you have any queries in relation to EU Treaty rights applications whether you are a family member of an EU Citizen/EEA National or an EU Citizen, Sinnott Solicitors would be happy to assist you with any query. If you wish to avail of those services, please contact us by using our enquiry form, by email at email@example.com or by telephone at +353 1 406 2862.
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