by Shauna Richardson
Shauna Richardson has just completed her final year of a Masters in Common Law in University College Dublin. She is currently an intern with the Climate Bar Association, and is preparing for her Kings Inns Entrance Examinations. In this timely article, Shauna considers the decision of the High Court in AB v Road Safety Authority.
2020 led to greater societal discourse on the issues stemming from racism. Racial discrimination is poignant at present especially in light of Derek Chauvin’s murder conviction[1] and the spate of anti-Asian crimes which have been committed.[2] In the Irish context, much of the discussion surrounding racial discrimination has involved the treatment of refugee applicants living in Direct Provision; a system for accommodating those in need of international protection while going through the asylum process.[3] There are legal mechanisms outside of Direct Provision that consequently prevent asylum seekers from integrating into Irish society. The focus of this paper will be to evaluate the Road Traffic (Licencing of Drivers) Regulations 2006 (“the 2006 Regulations”), and how they block refugee applicants from obtaining driving licences.[4] The High Court decision in AB v Road Safety Authority will be explored to convey the reasons that asylum seekers are denied driving permits.[5] The rationale behind this limitation will be assessed to convey the important policy factors that hold it in place. Additionally, the practical effects that this legislative ban has on refugee applicants will also be explored. The implications that this legislation has on their human rights will also be considered. By comparing the positions of the State and the complainant in this case, it will be made clear that legislative reform is needed to ensure that asylum seekers are treated equitably.
Facts of AB v Road Safety Authority:
To comprehend the issues at hand, it is important to first explore the circumstances of this case. The applicant AB was based in a Direct Provision Centre in Munster, but was employed in Dublin. There was insufficient Direct Provision accommodation near her place of employment. As a result, AB had to travel from Munster to Dublin for work on a daily basis. AB applied for a learner driver permit to the National Driver Licence Service (“NDLS”). However, her application was rejected on the basis that she had not provided evidence of her residency entitlement authorising her to live in Ireland. AB had submitted her Temporary Residence Certificate (“TRC”); the document that authorised her to remain in Ireland while her application for asylum was being processed.[6] Nevertheless, this was deemed insufficient by the Road Safety Authority (“RSA”). As a result, AB submitted a racial discrimination claim under Section 28 of the Equal Status Acts 2000-2015.[7] The complaint was initially upheld by the Workplace Relations Commission (“WRC”). However, the Circuit Court found that AB’s case was essentially a challenge to the legal requirement to prove residency entitlement in Ireland. Consequently, the Circuit Court overturned the WRC’s decision; arguing that the body had gone beyond its remit in finding that AB was subject to racial discrimination.[8] The case was then appealed to the High Court.
The Central Legislative Issues:
- The Road Traffic (Licencing of Drivers) Regulations 2006:
The central issue in this case was the Circuit Court’s interpretation of Regulation 20(1) of the 2006 Regulations. This provision states that an individual applying for a learner drivers’ permit must have their “normal residence” within Ireland.[9] However, the RSA stipulates that non-EU national applicants must provide evidence of their residency entitlement before being able to obtain a driving license. The Circuit Court held that this higher threshold established by the RSA was required by Regulation 20(1) of the 2006 Regulations.[10] In the High Court, the RSA asserted that individuals living in Ireland by means of a TRC are only allowed to reside in the country until the Minister for Justice considers their application for asylum.[11] Therefore, it cannot be said that TRC holders are in “normal residence” in Ireland, as they only have provisional permission to remain here. Ms. Justice Creedon of the High Court upheld the Circuit Court’s interpretation of Regulation 20(1) of the 2006 Regulations.[12] Creedon J considered that the RSA “lawfully and indiscriminately” applied the legislation to the circumstances of AB.[13] However, the 2006 Regulations ultimately failed AB, as they distinguish nationals from the European Union (EU), European Economic Area (EEA), or Switzerland, from applicants from other jurisdictions. The Reception and Integration Agency found that Georgia, Albania, Syria, Zimbabwe, and Pakistan were the top five countries of origin for asylum seekers in November 2018.[14] None of these countries are within the EU or EEA; meaning that all of the refugee applicants from these nations would fail to obtain a driving licence under the 2006 Regulations. With these statistics in mind, it is clear that the 2006 Regulations fail to address the needs of asylum seekers. Furthermore, they unfairly favour the integration of EU and EEA citizens, and foreign nationals who have the financial means to be in “normal residence” in Ireland.
- The Equal Status Acts 2000-2015:
The RSA referred to G v. Department of Social Protection to argue that the Equal Status Acts 2000-2015 could not be used to quash another statute.[15] Here, the applicant G attempted to override the Department of Social Protection’s statutory scheme for Maternity Benefit and Adoptive Benefit with the Equal Status Acts. However, Ms. Justice O’Malley stated that it was not the role of the Court to determine the legality of one Act over the other, and dismissed G’s claim.[16] Thus, the RSA contended that the 2006 Regulations also could not be overruled by the Equal Status Acts as a result of this precedence. Additionally, the RSA advanced their rationale for their policy of residency entitlement, initially established to safeguard against the abuse of driving licences as a form of identification for international travel. Creedon J agreed with the RSA on this matter, stating that the purpose of Regulation 20(1) of the 2006 Regulations was to prevent driving licences from being abused, and not to be racially discriminate. Therefore, no successful claim could be made under the Equal Status Acts in this case.
Analysis:
AB v Road Safety Authority explores some of the important policy considerations that underpin the legislative ban from providing refugee applicants with driving permits. One of which being that some airlines accept driving licences as a form of identity validation for travelling from Ireland to the UK.[17] Additionally, driving permits can be used to prove residency entitlement in Ireland as a means to attain a right to live in another EU Member State.[18] It was also highlighted that there are difficulties in identifying asylum seekers.[19] As a result, it would be more likely that individuals could assume the identity of a refugee applicant by means of a driving licence in order to circumvent the international protection process. With these issues in mind, it is understandable why the High Court could not rule in AB’s favour. However, AB’s personal circumstances make the High Court’s findings difficult to accept. The complainant here has been placed in a rural Direct Provision centre, and thus has no choice but to travel to find employment. If Regulation 20(1) of the 2006 Regulations inhibits refugee applicants from obtaining a driving permit, then asylum seekers are limited to jobs that are available either where they live, or in locations accessible by means of public transport. This begs the question of whether the regulation breaches the right to earn a livelihood under Article 45.2.3° of the Irish Constitution.[20] I agree with the argument that this legislation vastly limits asylum seeker’s access to employment in rural areas, and in those circumstances breaches Article 45.2.3°.[21] It is unfortunate that AB v Road Safety Authority did not explore this line of argument. However, the Irish Human Rights and Equality Commission intends on serving as an amicus curiae (“friend of the court”) in an impending case that will explore the constitutionality of Regulation 20(1) of the 2006 Regulations.[22] Landsberg & Breetzke v. NDLS & Others also involves refugee applicants aiming to challenge the NDLS’s refusal to provide them with a driving licence. The RSA have also refused to provide driving permits here on the basis that no evidence of residency entitlement was provided by the complainants.[23] It will be interesting to see how the High Court deals with this constitutional challenge in light of AB v Road Safety Authority.
AB v Road Safety Authority exemplifies the important policy considerations that justifies the prohibition. However, the law banning asylum seekers from obtaining driving permits still needs to be reformed. The 2006 Regulations were not scrutinised in terms of constitutional compatibility, thus the case failed to adequately recognise the ramifications the ban has on the lives of asylum seekers. The upcoming challenge of this legislation in Landsberg & Breetzke v. NDLS & Others, and the involvement of the Irish Human Rights and Equality Commission indicates an increasing concern about asylum seeker’s rights in Ireland. Further litigation and public interest will hopefully pressurise the government to implement policy changes in this area of the law. For instance, the Legislature could establish a driving license expressly for refugee applicants, that cannot be used for travelling or residing abroad. A modification like this may carry further legal complexities. However, providing driving permits to refugee applicants is required for these individuals to access essential services.
[1] Suzanne Lynch, ‘Former police officer Derek Chauvin found guilty of George Floyd’s murder’ The Irish Times (20 April 2021) <https://www.irishtimes.com/news/world/us/former-police-officer-derek-chauvin-found-guilty-of-george-floyd-s-murder-1.4542910> Accessed June 2 2021.
[2] Suyin Haynes, ‘This Isn’t Just a Problem for North America.’ The Atlanta Shooting Highlights the Painful Reality of Rising Anti-Asian Violence Around the World’ Time (22 March 2021) <https://time.com/5947862/anti-asian-attacks-rising-worldwide> Accessed 29 March 2021.
[3] Irish Refugee Council, <https://www.irishrefugeecouncil.ie/listing/category/direct-provision> Accessed 29 March 2021.
[4] Road Traffic (Licensing of Drivers) Regulations 2006, SI 2006/537.
[5] AB v Road Safety Authority [2021] IEHC 217.
[6] ibid [6]-[7]. See also International Protection Act 2015, s 16(1).
[7] ibid [1].
[8] ibid[15].
[9] Road Traffic (Licensing of Drivers) Regulations 2006, SI 2006/537, reg 20(1).
[10] AB v RSA (n 5), [6]-[7].
[11] ibid[54].
[12] ibid[103].
[13] ibid [99].
[14] Department of Justice and Equality, RIA Monthly Report November 2018 (2018), 5.
[15] ibid[63]. See also G v. Department of Social Protection [2015] 4 IR 167.
[16] G v. Department of Social Protection [2015] 4 IR 167, [142]-[145].
[17] ibid[74].
[18] ibid.
[19] ibid.
[20] Art 45.3.3°.
[21] ibid.
[22] Irish Human Rights and Equality Commission, ‘Commission Granted Amicus Curiae Role in High Court Judicial Review’ (23 February 2021) <https://www.ihrec.ie/commission-granted-legal-role-in-case-where-asylum-seekers-challenge-states-refusal-to-issue-driving-licences> accessed 15 April2021.
[23] ibid.
Sutherland Symposium 