Court allows appeal dismissing discrimination claim as WRC exceeded remit regarding residency evidence requirements.

AN CHÚIRT CHUARDA THE CIRCUIT COURT DUBLIN CIRCUIT COUNTY OF CITY OF DUBLIN Record Number: 2020/001550 IN THE MATTER OF THE EQUAL STATUS ACTS 2000-2015 BETWEEN:

ROAD SAFETY AUTHORITY APPELLANT -AND- AB COMPLAINANT/RESPONDENT JUDGMENT OF HIS HONOUR JUDGE JOHN O’CONNOR DELIVERED ON THE 30TH DAY OF JULY 2020 AT COURT 28, THE FOUR COURTS, INNS QUAY, DUBLIN 7. BACKGROUND

1. The Respondent applied for asylum in the State in 2015 and has lived in Ireland continuously since that date. She instituted a complaint under the Equal Status Acts 2000 to 2015 (the “Equal Status Acts”) against the Appellant, which was the subject of a

decision from the Workplace Relations Commission (“WRC”) on 28 January 2020.

2. The Appellant is a statutory body within whose remit responsibility for the issuance of driving licenses in Ireland falls. The Appellant refused to accept an application for a learner driver permit from the Respondent in October 2018 on the basis that the application failed to include satisfactory evidence of her normal residence in the State as is required by law.

3. Following the hearing of the Respondent’s complaint by the WRC on 4 September 2019, the WRC found that the Respondent was subject to indirect discrimination during her application for a learner permit and directed the following course of action pursuant to section 27 of the Equal Status Acts:

(a) That the Appellant meet with the Respondent to discuss whether she may surrender her Indian licence for an equivalent licence in Ireland without cost, or in the alternative, that the Respondent be granted a learner permit immediately without cost to her;

(b) That the Appellant pay the Respondent the sum of €5,000 in compensation; and

(c) That the Appellant immediately amend the Guidance Notes to take account of the Respondent and others in her position.

4. The essential issue for determination by this Court is whether the Adjudication Officer was correct to conclude that the Appellant discriminated against the Respondent on the ground of race by refusing the Respondent’s application for a learner driver permit on the basis that she had failed to prove her residency entitlement.

FACTS

5. The Respondent, referred to only for the purposes of this judgement as AB, to protect her identity applied for international protection in Ireland in 2015. She lives in the South of Ireland and works in County Dublin.

6. The Respondent holds a Temporary Residence Certificate (TRC) under section 16(1) of the International Protection Act 2015 which allows the Respondent to remain in the State pending the determination of her application for international protection.

7. The Respondent applied to the National Driver Licence Service (NDLS), which is a registered trademark of the Appellant, for a learner driver permit in October 2018. This application was not accepted by the NDLS on the basis that the application had failed to include valid evidence of the Respondent’s residency entitlement. The Respondent had provided the NDLS with her TRC in support of her application.

8. The Respondent notified the Appellant of a complaint pursuant to the Equal Status Acts using the form ES1 dated 7 November 2018. The Appellant responded using Form ES2 on

4 December 2018.

9. The Respondent referred a complaint to the Workplace Relations Commission [WRC] on

28 March 2019 in which she complained that the refusal of her application for a learner permit by the Appellant amounts to discrimination on grounds of race contrary to the Equal Status Acts. This complaint was heard on 4 September 2019 and the decision of the WRC was furnished on the 28 January 2020. The WRC concluded that the Appellant had indirectly discriminated against the Respondent. The Appellant appealed the decision of the WRC to the Circuit Court. This appeal was heard on 13 July 2020.

THE FRAMEWORK GOVERNING THE GRANTING OF DRIVING LICENCES IN THE STATE

10. The Road Traffic (Licensing of Drivers) Regulations 2006 (S.I. No. 537/2006) (as amended by S.I. No. 420 of 2013) govern the granting of driving licences in the State.

The Regulations serve to give effect in Irish law to a series of EU Directives, now recast as Directive 2006/126/EC.

11. Regulation 20(1) makes provision for learner permits in the following terms:

A person making an application for a learner permit shall—

(a) have his or her normal residence in the State, or

(b) have been studying in the State for at least 6 months prior to the date of the application.

Regulation 20(5) lists the documents required to be furnished with an application for a learner permit:

An application for a provisional licence shall be accompanied by -

(a) where the applicant -

(v) not being the holder of a provisional licence, a theory test certificate, for the time being in force, in respect of a category to which the application relates, or

(vi) is a person whose application is required under Regulation 41 to be accompanied by a medical report or eyesight report, such report,

(b) …. Deleted by S.I. No. 420/2013]

(c) any evidence of identity required under Regulation 54, and

(d) a birth certificate, passport or registration certificate in relation to the applicant, where the applicant has not held a driving licence within the period of 10 years, or a provisional licence within the period of 5 years, preceding the date of application and is not the holder of a recognised driving licence.

12. These 2006 Regulations transpose the EU Driver Licensing Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (“the Directive”) into Irish law, which Directive is concerned with the mutual recognition of driving licences within EU member states as part of the objective of the free movement of EU citizens. The Directive is an essential element of the common transport policy of the EU and is concerned with setting the minimum requirements for the issuance of driving licences and the mutual recognition of driving licences between EU member states as part of the objective of facilitating the exercise, by those entitled to do so, of rights of free movement within the EU. Article 2(1) of the Directive provides that driving licences issued by Member States shall be mutually recognised.

13. The Road Traffic (Licensing of Drivers) (Amendment) (No. 2) Regulations 2016, SI 656/2016 (the “2016 Regulations”), came into effect on 1 January 2017 and substituted a new Form D.201 as the application form for a learner permit. These Regulations and the version of Form D.201 were in effect when the Respondent applied for a provisional licence.

THE RESPONDENT’S SUBMISSION IN RESPECT OF RESIDENCY REQUIREENTS

14. The Respondent accepts that Regulation 20(1) requires an applicant to have her normal residence in the State and separately to provide her identity. However, she submits it does not stipulate the particular forms of proof or documentation which must be furnished by an applicant for this purpose. Normal residence is defined in Regulation 3 as follows:

“normal residence” means the place where a person usually lives, that is for at least

185 days in each year, because of personal and occupational ties, or, in the case of a person with no occupational ties, because of personal ties which show close links between that person and the place where he or she is living. However, the normal residence of a person whose occupational ties are in a different place from his or her personal ties and who consequently lives in turn in different places situated in 2 or more Member States shall be regarded as being the place of his or her personal ties where the person returns there regularly. This last condition need not be met where the person is living in a Member State in order to carry out a task of a definite duration. Attendance at a university or school does not imply transfer of normal residence. This, she submits reflects the terms of Article 12 of Directive 2006/126/EC Therefore she submits that it is clear from the definition of “normal residence” in Regulation 3 and Article 12 of the Directive that this is essentially a question of fact and not a question of law.

15. In addition to the 2006 Regulations, the Appellant stipulates a list of documents which will be accepted as evidence of normal residence in the State. These requirements, the Respondent submits, do not derive from the 2006 Regulations but are instead laid down in the National Drivers Licence Guidance Notes [“NDLS”] for the completion of Learner Permit application forms. The net effect, according to the Respondent is that while the Regulations only require that an applicant has her “normal residence in the State”, the practice is that the Appellant requires valid evidence of “residency entitlement”. This residency entitlement is restricted to certain forms of permission which cannot be provided by applicants for international protection. This, the Respondent submits, excludes some non-nationals, including those seeking international protection in the State, from access to driving licences.

16. In summary. the Respondent submits that, normal residence is defined in the 2006 Regulations and this is consistent with the 2006 Directive – as being “the place where a person usually lives, that is for at least 185 days in each year, because of personal and occupational ties….”. Therefore, she suggests that the Appellant is redefining the concept of normal residence under the 2006 Regulations, by imposing in their guidance notes an additional requirement not found in the Regulations: namely a residency entitlement which is linked to certain limited types of lawful residence.

APPELLANT’S SUBMISSION IN RESPECT OF RESIDENCY REQUIREMENTS

17. The Appellant submits that the Respondent is not “normally resident” in the State in circumstances where she is an asylum seeker. Under section 16(1) of the International Protection Act 2015, a person who has made an application for international protection under the 2015 Act and who has not ceased to be an applicant under the 2015 Act, is required to be given by or on behalf of the Minister for Justice and Equality, a permission allowing her to remain in the State for the sole purpose of the examination of her application. Such residence permission is of a permissive character only, until the determination of the application for international protection. They submit this is consistent with a number of authorities from the Superior Courts including:

- Simion (S.G.) v. Minister for Justice, Equality and Law Reform [2005] IEHC 298;

- Gonescu & Ors. v. Minister for Justice Equality and Law Reform [2003] IESC 49;

- Sofroni & Ors. v. Minister for Justice and Equality and Law Reform (Unreported, High Court, 9 July 2004 Peart J).

18. The Appellant submits that the judgment of Murray J (as he then was) in Gonescu at 494-

475 is of particular note where he states: "Persons seeking asylum status were permitted … to enter the State solely for the purposes of having their application for asylum examined by a fairly elaborate independent procedure so those genuinely entitled to asylum may be granted permission to enter and stay in the State on those grounds. Persons allowed to enter the State for such limited purpose are subject to a variety of distinctions.

It seems to me quite clear that the foregoing restrictions highlight and confirm that persons who are allowed enter the State for the purpose of making an application for asylum fall into a particular category and never enjoy the status of residence as such who have been granted permission to enter and reside in the State as immigrants. Even though such immigrants may be subject to certain limitations as to time and requirements as to renewed work permits, they nonetheless enjoy legitimate residence status. In fact the very purpose of an application for refugee status is to seek permission to be allowed to enter and reside in the State as an immigrant and benefit from such status".

19. The Appellant also refers to Stanley, Immigration and Citizenship Law (Round Hall, 2017, para 7-03), viz:

“Persons who are allowed to reside in the State ‘solely’ for seeking international protection do not enjoy the status of residents who have been granted permission to enter and reside in the State as immigrants, and are not to be construed as “settled migrants… A person resident in the State under s.16 of the 2015 Act is not ‘habitually resident’ for the purposes of the Social Welfare Consolidation Act 2005 to qualify for certain welfare benefits”.

In summary, the Appellant contends that these combined authorities support their submission that the character of the Respondent’s residence in this case cannot amount to “normal residence” within the meaning of the Regulations in as much as her status is that of an asylum seeker.

THE RESPONDENT’S SUBMISSION THAT THE APPELLANT’S PRACTICE OF REFUSING ACCESS TO LEARNER PERMITS TO ASYLUM SEEKERS, SUCH AS AB, CONSTITUTES DISCRIMINATION ON THE GROUND OF RACE CONTRARY TO THE EQUAL STATUS ACTS

20. The Equal Status Acts prohibit discrimination in access to goods and services on ten grounds, including the ground of race. Insofar as the ground of race is concerned, the Equal Status Acts serve to give effect in Irish law to the State’s obligations under the Race Directive, Directive 2000/43/EC. Accordingly, the Equal Status Acts – insofar as they relate to discrimination on the ground of race – must be interpreted in a manner compatible with the Directive and, the EU Charter of Fundamental Rights.

21. Section 5(1) of the Equal Status Acts prohibits discrimination in the disposal of goods and provision of services:

A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

“Service” is defined in section 2 of the Equal Status Acts as meaning “a service or facility of any nature which is available to the public generally or a section of the public”, including facilities for transport and travel. The issuing of learner permits by or on behalf of the Respondents is a service for the purposes of the Equal Status Acts. This, the Respondent contends appears to be accepted by the Appellant.

22. Under Section 3(1) of the Equal Status Acts, discrimination is taken to occur where a person is treated less favourably than another person in a comparable situation on one of the discriminatory grounds set out in section 3(2). Discrimination may be direct or indirect. Indirect discrimination arises where an apparently neutral provision would put a person covered by one of the discriminatory grounds “at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”. (Section 3(1)(c), Equal Status Acts).

23. Section 3(2)(h) of the Equal Status Acts recognises race as one of the protected grounds:

that is, as between any two persons, they “are of different race, colour, nationality or ethnic or national origins”. In this regard, the Respondent submits that less favourable treatment arises firstly where people in comparable situations have not been treated in the same manner and secondly where there is a failure to afford people who are differently situated treatment that it takes account of those differences. This is important when it arises directly from a protected status under the legislation.

24. Under section 38A(1) of the Equal Status Acts, where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the Appellant to prove the contrary.

25. In summary, the Respondent’s submission is that, the policy or practice of the Appellant in its application of the 2006 Regulations vis-à-vis applicants for international protection, such as the Respondent, may be considered to be either direct or indirect discrimination contrary to the Equal Status Acts.

DIRECT DISCRIMINATION

26. The Respondent submits that the Appellant’s policy or practice on the face of it could be regarded as direct discrimination on the ground of race insofar as it subjects applicants in the position of the Appellant to less favourable treatment on the basis of her nationality and/or national origins. This practice, they state not only discriminates between Irish and EU/EEA/Swiss citizens, on the one hand, and non-Irish/EU/EEA/Swiss citizens (of whom asylum seekers are part of) on the other hand. It further discriminates between different categories of non- Irish/EU/EEA/Swiss citizens and certain categories of non-nationals with particular forms of residence certificate (those with GNIB and IRP cards, such as students who have been in the State for longer than six months) who are permitted to access driving licences. In contrast, other categories of non-nationals with a residence certificate – specifically, applicants for international protection who hold Temporary Residence Certificates, often for many years are excluded from access even if they meet the requirement of normal residence.

INDIRECT DISCRIMINATION

27. The Respondent submits that the policy or practice of the Appellant also constitutes indirect discrimination on the ground of race. The Appellant, according to the Respondent, submits that the “normal residence” requirement in Regulation 20 is neutral on its face, and lays down uniform requirements which must be satisfied by all applicants. However, the Respondent submits that the manner in which the Appellant has applied that requirement constitutes discrimination in that non-nationals and, more particularly, that group of non-nationals who apply for international protection in the State are - “at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary” contrary to the Equal Status Acts.

28. The Respondent submits that the Appellant accepts a residence certificate as proof of normal residence for certain categories of non-nationals lawfully resident in the State but refuses to do so in the case of non-nationals who are applicants for international protection on the basis that they cannot provide “valid evidence of residency entitlement”.

In this category of non-nationals of which the Respondent forms part, they state she is in a particularly vulnerable category of non-nationals in that she is much more likely to be of a different race or ethnic origin. This places her in a disadvantage compared to other persons, whether non-national students residing in the State for longer than six months or non-nationals who hold GNIB or IRP cards. Thus, she submits, where such applicants can produce other official proofs of residence, and where such applicants’ residence in the State is not disputed, such applicants cannot satisfy the requirement of “normal residence” as it has been interpreted and applied by the Appellant.

29. In summary, the Respondent contends that the nature of the evidentiary requirements laid down by the Appellant in its guidance notes is “intrinsically liable” to affect this category of non-nationals and therefore excludes the Respondent from access to obtaining a driving licence. This, she contends, constitutes prima facie indirect discrimination. Therefore, they submit it falls to the Appellant to establish that its practice or policy is objectively justified by a legitimate aim and that the means of achieving it are appropriate and necessary, they state that that the Appellant concerns with questions of the legality of residence fall outside its statutory remit. In addition, she submits these concerns are “mere generalisations” which are not objectively justified. In contrast, she suggests that they “must be interpreted strictly”. Therefore, in the Respondent’s view, the Appellant has failed to rebut the presumption of discrimination. Therefore, she submits, the Appellant has engaged in indirect discrimination affecting the Respondent.

THE RESPONDENT’S SUBMISSION IN RESPECT OF SECTION 14(1) OF THE EQUAL STATUS ACTS

30. The Respondent submits that the Appellant erred in failing to take into account section 14(1) of the Equal Status Acts. Section 14(1) of the Equal Status Acts which provide that nothing in the Equal Status Acts shall be construed as prohibiting actions required by law.

In circumstances where there is no analogous exemption under the Race Directive, she submits that the compatibility of the section 14 exemption with EU law remains in question. Therefore, the Respondent suggests that in accordance with well-established principles of EU law, any derogation from the principle of non-discrimination must be must be interpreted strictly.

31. In regard to the legislation, the Respondent submits that the 2006 Regulations impose no obligation on the Appellant to seek the particular forms of proof of residence which it requires of applicants such as the Respondent. Instead she suggests the 2006 Regulations simply require that applicants are normally resident in the State. She also submits that section 14(1)(aa)(II) of the Equal Status Acts is cast in broad terms.

Therefore, she suggests, nothing in the Act shall be construed as prohibiting, on the basis of nationality, any action taken by a public authority in relation to a non-national “in accordance with any provision or condition made by or under any enactment and arising from his or her entry to or residence in the State” Finally she submits, the requirements for access to a driving licence under the Driving Licence Regulations cannot properly be understood as arising from an applicant’s entry or residence in the State unless this term is to be interpreted in the broadest possible way. Instead they suggest this provision must be interpreted strictly. In so far as limitations apply, they should only apply to decisions taken in the context of asylum and immigration applications and not to the dayto-day operation or provision of services to those in the asylum and immigration system.

To do otherwise she suggests, would lead to an interpretation which would deprive applicants for international protection of the protection of the Equal Status Acts and would be difficult or impossible to reconcile with the constitutional guarantees afforded to noncitizens, as recognised in N.H.V. (Thiha) v. the Minister for Justice and Equality (Respondent) and The Attorney General and The Irish Human Rights Commission (Notice Parties) [2017] IESC 82.

THE APPELLANT’S SUBMISSION ON THE LEGISATIVE ENACTMENT

32. The Appellant submits that the manner in which the Respondent’s application was processed arose from the legal requirements imposed on the Appellant by virtue of the Regulations. Section 14(1)(a) of the Equal Status Acts provides that nothing in the Equal Status Acts shall be construed as prohibiting “the taking of any action that is required by or under – (i) any enactment or order of court”. The Appellant suggests that consistent with this provision, it is required to ensure that evidence of applicants’ normal residence is provided in applications for driving licences to ensure that applicants do in fact satisfy the normal residence condition.

33. The Appellant submits that the requirement for evidence of normal residence arising from regulation 12 of the Regulations, is by using the imperative “shall”, and is a mandatory one which arises under a legislative enactment. Accordingly, they suggest that section 14(1) of the Equal Status Acts provides a complete defence to any allegation that the requirement to provide evidence of normal residence is discriminatory, as the requirement arises under statute, i.e. an “enactment” in accordance with Section 14(1)

and is, as such, exempt from the application of the Equal Status Acts. They further submit that as the Appellant is a public body, it is obliged to ensure that a consistent approach is maintained by it in all applications for driving licences. Therefore, they suggest, the nature of the information which may be requested by the Appellant as evidence of normal residence in this regard ought properly to be informed by regulation 12(2)(b) of the Regulations which vests discretion in the Appellant to request information in the course of an application for a driving licence.

34. The provisions of section 14(1)(a) of Equal Status Acts was considered in part by O’Malley J in the High Court case of G v. The Department of Social Protection [2015] IEHC 419 where she stated that the Equal Status Acts could not override the terms of another statutory scheme. Accordingly, the Appellant submits that its actions as they relate to the Respondent are required by legislative enactment and cannot be the subject of an adverse finding pursuant to the Equal Status Acts.

35. The Appellant submits that its treatment of the Respondent is consistent with section 14(1)(aa)(II) of the Equal Status Acts in that the provision states that nothing in the Equal Status Acts shall be construed as prohibiting, on the basis of nationality, the taking of any action by “a public authority” in relation to “a non-national” “in accordance with any provision or condition made by or under any enactment and arising from her or her entry to or residence in the State”.

36. The Appellant also suggests that the language of section 14(1)(aa)(II) is wider than that in section 14(1)(a)(i) and requires that the impugned action be “in accordance with any provision or condition made by or under any enactment”, rather than that it be “required by or under” the relevant “enactment”. This they suggest reflects the inclusion in Article 3(2) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (“the Race Directive”), which is implemented by the Equal Status Acts. They submit that the Race Directive does not cover “difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned”.

Referring to Walsh, Equal Status Acts 2000-2011 (Blackhall, 2012), 64 they suggest the author observes that this appears to grant some discretion to public authorities to discriminate against migrants and asylum seekers only on the basis of nationality. This observation, they suggest is consistent with the comments of the Supreme Court in Re The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, 382 (per Keane CJ) (to wit “…in the sphere of immigration, its restriction or regulation, the non-national or alien constitutes a discrete category of persons whose entry, presence and expulsion from the State may be the subject of legislative and administrative measures which would not, and in many of its aspects, could not, be applied to its citizens.”

37. Section 14(3) of the Equal Status Acts provides that “Nothing in subsection (1)(aa) shall derogate from any of the obligations of the State under the treaties governing the European Communities within the meaning of the European Communities Acts 1972 to 2003 or any act adopted by an institution of those Communities”. Therefore, the Appellant submits, pursuant to Article 17(5) of Directive 2013/33/EU of 26 June 2013 (the “Reception Conditions Directive (recast)”, the State is entitled to treat applicants for asylum less favourably than its own citizens and the European Communities (Reception Conditions) Regulations 2018 (which give effect to the Reception Conditions Directive (recast)) do not entitle an applicant for international protection to a driving licence while within the state.

38. The Appellant referred to the case of Osheku v Ireland, The Attorney General and The Minister for Justice [1987] I.L.R.M. 330 where the plaintiff failed in her claim that the Aliens Act 1935 was unconstitutional, Gannon J stated:

"The control of aliens which is the purpose of the Aliens Act, 1935, is an aspect of the common good related to the definition, recognition and the protection of the boundaries of the State. That it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure, and their activities and duration of stay within the State is and has been recognised universally and from earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual citizens, and the protection of the former may involve restrictions in circumstances of necessity on the latter."

39. In summary, the Appellant submits in regard to the Equal Status Acts, that it being a public authority, lawfully and indiscriminately applied the State’s requirements to the Respondent, who is a non-national. It therefore states that its actions are in accordance with the provisions or conditions made by or under the Regulations; accordingly, no complaint pursuant to the Equal Status Acts can be sustained.

THE APPELLANT’S SUBMISSION THAT ITS ACTIONS ARE NOT DISCRIMINATORY, OR ARE OBJECTIVELY JUSTIFIED

40. The Appellant submits that even if the court was to reject its argument that no discrimination has occurred in relation to the Respondent that such differential treatment amounts to indirect discrimination only and can be objectively justified. They therefore submit that the requirement for proof of normal residence applies to all applicants for driving licences and does not directly discriminate against the Respondent on the grounds of her race contrary to section 3(2)(h) of the Equal Status Acts.

41. Section 3(1)(c) of the Equal Status Acts provides that discrimination shall also be taken to occur “where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” The Appellant submits that the three requirements of objective justification have been set out by the Court of Justice of the European Union in the seminal case of Bilka-Kaufhaus Gmbh v Weber von Hartz ([1986 E.C.R. 1607] (C-170/84), as follows:

i. the aim of the measure is legitimate;

ii. the means of achieving that aim are appropriate; and iii. the means of achieving that aim are necessary.

Pursuant to Directive 2011/94/EU (the “2011 Directive”, which was transposed into Irish law by the Road Traffic (Licensing of Drivers) (Amendment) Regulations 2012 (the EU operates a common licencing system, such that an Irish driving licence (which now takes the form of a standardized plastic card driving license) can be used in every member state and vice versa. The 2011 Directive is premised upon the principle of mutual recognition of driving licenses and member states may not go behind a license issued by another member state or investigate whether the conditions for issue laid down by the Directive have been met. Accordingly, the Appellant has the responsibility of ensuring that the integrity of the process of issuing and renewing driving licences is safeguarded by a robust verification process, particularly given the continuously evolving nature of threats to the security and integrity of the common driving licence, such as theft and forgery and other associated security concerns.

42. The Appellant submits that the requirement for evidence of residency entitlement pursues a series of legitimate aims, including but not limited to the following:

a. The law surrounding driver’s licences is fundamentally premised on the need to ensure road safety and to prevent against discretionary approaches being taken to the issuing of driver’s licences. There is an ever-increasing need for security regarding both the process of the licencing of driving and the driving licence itself.

Indeed, a driving licence is a privilege (as opposed to a right or an entitlement)

and, if granted, is recognised across Europe.

b. The requirement to show residency entitlement is an appropriate means to facilitate verification of compliance with the normal residence condition and/or to enable due diligence be applied when issuing driving licences such that an applicant does satisfy the normal residence condition. The underlying objective is to, inter alia, prevent against the phenomenon of driving licence tourism. Licences may be used not only to drive within Ireland but in other countries within the European Union and may be exchanged in any EU country, as set out in Article 11 of the Directive.

c. In addition, they suggest a driving licence is also a form of identity validation process. The requirements prevent a driving licence being incorrectly used as proof of a residency entitlement in the Irish State on an application for right of residency in another Member State of the EU. In the context of asylum seekers, they submit that there is a particular difficulty with substantiating identity. d. The Appellant submits it has a responsibility to ensure that the integrity of the process of driving licencing is safeguarded, not only under national law but under EU and international law. They suggest that if Ireland failed to meet its obligations under the Directive, a licence could, for instance be granted to a person who is illegally resident in Ireland, which would then be recognised in the United Kingdom allowing the person to drive there, notwithstanding that the United Kingdom would not have granted a driver’s licence to that person. Section 97A of the Road Traffic Act 1998 (as inserted by the Immigration Act 2014 requires an applicant for a driving licence in the United Kingdom to show that he or she is lawfully resident and, under the section, a person is not lawfully resident if he or she requires leave to enter or remain in the United Kingdom.

e. Driving licences, they submit are used as formal identification for a host of services and accordingly have a value significantly beyond allowing the holder to drive a vehicle in the territory. This is especially so given that a driving licence can satisfy certain airlines’ requirements for the purpose of travelling from Ireland to the United Kingdom. As such, the Appellant’s requirement for evidence of residency entitlement is appropriate in light of, inter alia, the significance attached to driving licences generally and to ensure that the processes concerning international protection are not circumvented.

43. In accordance with the second limb of the test of objective justification, the Appellant submits that the requirement for evidence of residency entitlement is both an appropriate and necessary means of pursuing the legitimate aims enumerated above. The word ‘appropriate’, they suggest requires that the measure is suitable for achieving the aim in question and that the provision in fact advances the aim. They submit that the Court of Justice of the European Union has acknowledged that it is important that the authorities responsible for issuing and renewing driving licenses in a Member State can reliably ensure that the applicant does in fact satisfy the normal residence condition. They point out that not all employment requires an employee to have a driving licence and as such there is no necessary interference with a right to work.

44. The Appellant submits that the provisions are ‘necessary’ where there are no alternative, less discriminatory ways of advancing its aim. In this regard, the list of documents in the Guidance Notes which are acceptable as evidence of residency entitlement have, they suggest been carefully considered and compiled to reflect the need for the Appellant to act at all times in accordance with its obligations under Irish and European Union law. In addition, the Appellant submits that the Respondent as an asylum seeker, does not have her normal residence in the State. Therefore, they suggest that there is, in any case, a clear distinction between the ability to verify and the reliability of the documents listed by the Appellant in the Guidance Notes, and those documents which were appended to the Respondent’s application. Under the 2015 Act, an asylum seeker is given permission to remain in the State while their application is being examined and a temporary residence certificate is issued. This is an immigration registration certificate. Thereafter, the needs of the asylum seeker are assessed, and the person will then be relocated to accommodation where they must stay until their application for international protection is being processed. Under Section 17(3) of the 2015 Act, a temporary residence certificate remains the property of the Minister and must be surrendered on request of the Minister.

Whereas such documents as the Irish residence permit or Irish certificate of naturalisation are only obtained following an exacting process, such a Temporary Residence Certificate is subject to an uncertain asylum process and must be surrendered upon request by the Minister for Justice.

45. They suggest a Self-Employment Permission or a Letter of Permission issued by the Department of Justice and Equality is valid for a period of six months (i.e., less than 185 days) and is obtained by simply certifying that an applicant for international protection has complied with the international protection process and has registered with the Revenue Commissioners.

46. The distinction between those documents and those which actually establish residency entitlement is clear, in that the former are issued for a limited purpose, following a truncated application process. Accordingly, the means used by the Appellant to ensure the requirement of “normal residence” is satisfied are a necessary means of pursuing the legitimate aims enumerated above and are therefore proportionate.

47. In this regard, the Appellant submits that Article 7(5) of the Directive obliges member states, when issuing a licence to “apply due diligence to ensure that a person fulfils the requirements set out in paragraph 1 of this Article” (the latter includes, at Article 7(1)(e), the requirement that applicants for driving licences have their normal residence in the territory of the Member State). Therefore, they suggest that the Appellant has not exceeded its powers regarding the extent of due diligence, given the lack of any definition thereof under the Directive, and there is no discrimination in circumstances where the requirements for evidence of normal residence are applied by the Appellant to all applications for driving licences.

48. The Appellant submits that the English approach in relation to evidence of residency entitlement which mirrors the approach adopted in Ireland and that the Appellant has adopted the same approach in relation to the documentary requirements regarding normal residence since 2013 when it assumed its driving licencing function.

49. In regard to the Respondent’s submission before the WRC that, insofar as the Respondent is obliged by Article 7(5)(b) of the Directive to conduct “due diligence” to ensure that applicants for driving licences have their normal residence in the State, the case of A Complainant –v- A Respondent (ADJ-00008685), should be indicative of the extent of due diligence required. While acknowledging that the case was taken under the Equal Status Acts, they suggest it is distinguishable from the present case. They submit that that case addressed certain requirements relating to proof of identity and proof of address which arise pursuant to the Criminal Justice (Anti-Money Laundering and Terrorist Financing) Act 2010 (the “2010 Act”). Unlike the issues in this case, they submit, the requirements under the 2010 Act relate to proof of identity and proof of address, not proof of “normal residence” within the meaning of the Regulations. The issue in the present case, they suggest concerns the meaning of “normal residence”, a much broader issue than the documentary measures employed by the Respondent to prove same and which in the Respondent’s submission and consistent with the jurisprudence, requires proof of an entitlement to reside. They submit that the issue before the WRC in A Complainant concerned the imposition by the respondent financial institution of certain additional requirements to those required by the legislation.

50. Finally, the Appellant submits that the complaint made by the Respondent is misconceived as, in effect, it is a challenge to the Regulations governing the issuing of driving licences and the requirement thereunder to provide evidence of residency entitlement. If there was to be such a challenge it ought to involve the Minister for Transport and the State.

DECISION

51. The legal arguments in this case, as I have outlined above, were set out cogently by counsel for the respective parties. Having heard the Respondent‘s oral testimony, I do not accept that her employment status was substantially affected by the lack of an Irish driving licence. However, travelling to work resulted in a substantial inconvenience for her. The Respondent and her employer deserve great credit in how they have managed her employment despite the differences in residence and work locations. However, this case is not about a right to a driving licence. It is about alleged discrimination in the course of her application for a learner permit to drive. She does not suggest that The Road Traffic (Licensing of Drivers) Regulations 2006 (S.I. No. 537/2006) (as amended by S.I. No. 420 of 2013) which gives effect in Irish law to a series of EU Directives is discriminatory. Instead she suggests that the Appellant has interpreted them in a discriminatory manner. She submits that this arises on the ground of race in that residency entitlement “is an additional burden which adversely affects applicants such as the Respondent from a different ethnic background”.

I do not agree. I accept the arguments put forward by Counsel for the Appellant as setting out the law in Ireland correctly in so far as the Equal Status Acts 2000-2015 apply. The Respondent is resident in the State for making an application for asylum. She does enjoy rights, but they do not extend such that her status of residence is the same as citizens in Ireland or such persons that are granted permission to enter and reside in the State as immigrants. Furthermore, I do not accept that the Appellant discriminates against the Respondent or other asylum applicants on account of race. They applied existing Irish law to the Regulations. This action is not just a challenge to the operation of the Regulations, it is in effect, a challenge to the law governing the issuing of driving licences and the requirement to provide evidence of residency entitlement.in Ireland. The

decision of the WRC went substantially beyond its remit under the Equal Status Acts 2000-2015. While there are legitimate political concerns for asylum applicants’ rights, these are matters for the Oireachtas to debate and legislate on. It is also important to emphasise that this is an application under the Equal Status Acts 2000-2015. It is not a constitutional challenge or a judicial review application.

Accordingly, I allow the Appellant’s appeal.