Immigrant Couples Seeking Right to Family Face a Long Wait, With Consequences

Aline Araújo dos Santos has just two months to save her job, she says. “The company I work for told me I have to have a valid visa by April.”

But she’s been waiting for more than a year for her application for permission to stay here long-term to be processed, she says.

She applied based on EU treaty rights, which allow families to stay and move around together within the European Economic Area even if some family members are from outside the zone.

It means a kid can stay with their parents or, as in dos Santos’ case, that a wife can live with her husband.

Under European law, applications are supposed to take less than six months to process.

Says dos Santos: “You can’t have a normal life like this. What is the point of being part of the European Union when they don’t follow their law?”

Dos Santos isn’t alone in her wait.

Of the roughly 2,830 applications currently being processed by the Department of Justice, about 2,200 were filed in 2020, 600 in 2019, and 30 in 2018, official figures show.

A spokesperson for the Department of Justice said that capacity to process applications was hit during the four months that its Dublin registration office was closed because of pandemic restrictions.

“However, measures have since been put in place to address this and reduce any backlog,” they said. And “priority continues to be given to emergency cases including applications from healthcare professionals or their family members”.

Colin Lenihan, an information coordinator at the Immigrant Council of Ireland, said he doesn’t buy the line that the pandemic is to blame. Applicants faced unreasonable delays before Covid-19 arrived in Ireland, he says.

“It is common practice that every residence card application is facing significant delays in processing,” he said.

The Wait

Dos Santos, who is from Brazil, and her Croatian husband married two years back. At the time, she was on a student visa.

In November 2019, she applied for an Irish Residence Permit based on her marriage, she says.

While she waited for it to be processed, the Irish Naturalisation and Immigration Service (INIS) gave her permission to stay and work until mid-February 2020 – and then, when she was still waiting, permission until late November 2020.

Immigration officials have told her that Justice Minister Helen McEntee’s automatic extensions cover her for now until April.

The retail company where she works part-time says she needs permanent status by April – although they are understanding of her situation.

“My company is being very supportive. Some of them are not accepting the automatic extension at all,” says dos Santos.

Dos Santos says she has little opportunity to find another job because employers rarely accept someone who doesn’t have a permission that is valid for “at least six months”.

A spokesperson for the Department of Justice didn’t say why it takes significantly longer for some applicants to get a decision than the six months that European law says EU treaty rights applications should take.

The INIS website says that: “A complex application may take more time to process than a more simple application.”

Lenihan of the Immigrant Council of Ireland says that’s not what he’s seen. “I don’t agree that it is merely complex cases that suffer from processing delays.”

An Unexplored Area

Dos Santos says she worries racial profiling may come into it. She’s not sure, she says, but the wait makes her mind go in all directions.

She knows people who have applied after her and gotten their residence permits, she says. “Maybe because I’m Brazilian, and they see Croatia as the third-world of Europe.”

“I’m depressed. We were even thinking of going to Croatia,” says dos Santos, whose husband has a full-time job in Dublin.

Racial profiling in the area of EU treaty rights is unexplored but “deserves analysis”, says Lenihan.

He says he noticed a trend after the pro-Brexit vote in the United Kingdom in 2016 of people from Pakistan and Afghanistan “who are family members of British citizens” mostly getting refused.

Even before the Brexit vote, with the tightening of Theresa May’s “hostile environment”, some solicitors asked whether delays in processing EU treaty rights applications in Ireland were motivated by a desire to shut down a legal route for UK citizens on lower incomes to reunite with their non-EEA spouses or dependents in Ireland before moving back to the UK.

In 2017, 92 percent of Pakistani applicants and 99 percent of Afghan applicants under EU treaty rights were denied permission.

In a judgment in 2019 relating to a UK citizen seeking to have four dependents join him in Ireland from Pakistan, Mr Justice Max Barrett, a High Court judge, touched on how the minister had taken into account a surge in EU treaty rights applications from Pakistan, around the same time as this one.

While the minister is entitled to watch out for abuses of rights, he can not conclude that an application is an abuse of rights if there’s no evidence to justify that and just because there’s a general surge, the judgment says.

Justice Barrett was sceptical of the department’s decision in using a surge “as an excuse to assume they were all fraudulent”, says Lenihan.

His comments, Lenihan says, were not legally binding though. They were a kind of judicial guidance for future cases.

Lenihan says he hasn’t come across instances of potential racial profiling against Brazilians. “But that’s only from my own experience,” he says.

Looking for Recourse

The Immigrant Council of Ireland gets numerous calls about EU treaty rights applications and appeals, says Lenihan.

Appeals or “reviews” for adverse decisions can take even longer than two years, he says. “With some even reaching three years.”

Other European countries also fail to process some of these cases in less than six months.

Norway, a country of relatively similar size, processed 56 percent of its cases in 2019 within six months, and 80 percent of its cases in 2020 within six months, said a spokesperson for the Directorate of Immigration.

What recourse is there for people when Ireland and other EU countries fail to do this within the time frame?

People can take their case to the European Commission, says Lenihan. The commission has to investigate potential breaches of EU law, and refer them to the European Court of Justice, he says.

But he’s yet to see an immigration case against Ireland taken to the European court, he says.

He’s seen issues of environmental law or tax law, he says. “It just hasn’t happened in Irish immigration law.”

Kept Apart

For Dione Rafael Nazario Silveira, having his application processed faster would have meant – if it had been approved – that he wouldn’t be stuck in Brazil while his partner is in Dublin.

In December, he went to Brazil with his husband to see his mother, who had been diagnosed with cancer, he says. “It was an emergency for us to go to Brazil.”

His husband, who has both Brazilian and Italian passports, could come back. Silveira couldn’t.

A day before they were due to return, the government banned visa-free travel for nationals of South American countries into Ireland to control the spread of coronavirus.

Silveira didn’t have a visa. (His temporary permission, which would have worked as a visa, had expired on 26 August 2020, but an immigration officer had told him it was okay to travel, as he could do that visa-free.)

“My family is being separated at the moment. They said you can go and come back without problem, but just one day before we came back they changed the rule,” Silveira says.

Arthur Bordin Vieira Santos, Silveira’s husband, has written to Solvit, a problem-solving network for European citizens run by the European Commission, asking why their application is taking so long to process.

“But we’re still waiting,” he says.

Tomislav Vašarević, dos Santos’ husband, has also filed a complaint with Solvit, laying out his wife’s immigration problems, and has written to the Minister for Justice.

He’s sent a letter to the European Commission too, on behalf of his wife, with testimonials from other families facing the same issues as them. Among them, is a note from an Indian family waiting since 2017.

“The only thing we are really asking for is some respect and dignity. We pay our taxes, we work hard, we are not a burden on the Irish state. So why it needs to take so long?” Vašarević says, in the letter.

[CORRECTION: This article was updated at 9.15am on 25 February to correct Colin Lenihan’s role at the Immigrant Council of Ireland. Apologies for the error.]

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Shamim Malekmian: Shamim Malekmian covers the immigration beat for Dublin Inquirer. Reach her at [email protected]

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