Amanda Magret Landsberg and Eben Arnoldis Breetzke v Road Safety Authority, The Minister for Transport, Tourism and Sport the Attorney General Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 05 November 2021
• Neutral Citation: [2021] IEHC 748
• Court: High Court
• Docket Number: [2020 No. 308 JR.]

Between

Amanda Magret Landsberg and Eben Arnoldis Breetzke

Applicants

and

Road Safety Authority, The Minister for Transport, Tourism and Sport the Attorney General Ireland

Respondents

and

The Irish Human Rights and Equality Commission

Amicus Curiae

[2021] IEHC 748

[2020 No. 308 JR.]

THE HIGH COURT

Judicial review – Declaratory relief – Orders of certiorari – Applicants seeking judicial review – Whether the Road Traffic (Licencing of Drivers) Regulations 2006 required the applicants to establish further right of residence

Facts: The National Driving Licence Service (NDLS), which formed part of the first respondent, the Road Safety Authority (the Authority), refused to permit the applicants, Ms Landsberg and Mr Breetzke, to exchange their South African driving licences for Irish driving licences, on the basis that the applicants, who were both South African nationals in the International Protection System, failed to provide valid evidence of residency entitlement in the State. On 2 June 2020, following an ex parte application made on behalf of the applicants, the High Court (Meenan J) granted the applicants leave to apply by way of an application for judicial review. On 1 September 2020, Meenan J ordered that the Authority be substituted for the NDLS, without prejudice to any issue that the Authority may wish to raise concerning time or any other matter and the applicants were granted liberty to file an amended statement of grounds on or before 4 September 2020. The grounds on which relief was sought were as follows: (i) Regulation 12 of the Road Traffic (Licencing of Drivers) Regulations 2006 S.I. 537/2006, as amended, requires an applicant for a driving licence to have their normal residence in Ireland in order to apply for a driving licence; (ii) the applicants had resided in Ireland since September 2019 on a lawful basis, pursuant to s. 16 of the International Protection Act 2015, for the purposes of seeking international protection, and were therefore normally resident in Ireland, and had been unable to reside anywhere else since that time, such that they were entitled to avail of Regulation 12 of the 2006 Regulations; (iii) in seeking a Garda National Immigration Bureau (GNIB) card and/or an Irish Residence Permit (IRP) card as a prerequisite to processing an application for a driving licence, the first respondent had unlawfully excluded the applicants, and all applicants for international protection, from applying for an Irish driving licence, and had thereby acted unlawfully; (iv) if the 2006 Regulations does have the effect of excluding a person who is resident in the State pursuant to s. 16 of the 2015 Act from obtaining a driving licence, such exclusion is unreasonable and disproportionate, a significant interference with their fundamental and constitutional rights including their right to earn a livelihood and their right to respect for their private and family life, and/or constitutes unlawful discrimination; (v) if the 2006 Regulations exclude a person who is resident in the State pursuant to s. 16 of the 2015 Act from obtaining a driving licence, such exclusion is a form of discrimination which has no objective, reasonable or proportionate justification.

Held by Heslin J that the applicants were entitled to declaratory relief that the 2006 Regulations do not require them to establish any further right of residence than they currently have.

Heslin J held that the applicants were entitled to orders of certiorari quashing the decision of the first respondent of 30 November 2019 refusing their applications to exchange their South African driving licences for Irish ones.

Application granted.

JUDGMENT of Mr. Justice Mark Heslin delivered on the 5th day of November, 2021

Introduction

1 The present proceedings arise out of the refusal of the National Driving Licence Service (“NDLS”), which forms part of the Road Safety Authority (“the Authority”) to permit the applicants to exchange their South African driving licences for Irish driving licences, on the basis that the applicants, who are both South African nationals in the International Protection System, failed to provide valid evidence of residency entitlement in this State.

The 1961 Act and the 2006 Regulations

2 An application for an Irish driving licence is dealt with under s. 22 of the Road Traffic Act 1961 (“the 1961 Act”), as amended, which provides:-

“Application for Irish driving licence .

22.—(1) Subject to this Part, a person may apply to a licensing authority for a licence (“Irish driving licence”) to drive a mechanically propelled vehicle of a specified category.

2 An application for an Irish driving licence—

(a) shall be made —

(i) to the licensing authority.

(ii) in accordance with the regulations made under s. 42 (2) (c) …”,

3 Thus, an application for a driving licence must be made in accordance with regulations made pursuant to s. 42 (2) (c) of the 1961 Act. The Road Traffic (Licencing of Drivers) Regulations 2006 (S.I. no. 537 of 2006) (the “2006 Regulations”) constitute regulations made pursuant to s. 42 (2) (c) of the 1961 Act and recognise South African driving licences for the purposes of exchange, meaning that the holder of a South African driving licence can exchange that licence for an Irish one, without providing a certificate of competency (i.e. without having to pass a driving test).

4 Section 2 of the Road Traffic Act, 2006, provides that:- “[t]he power to make regulations under the Road Traffic Acts 1961 to 2006 includes the power to make provision in such regulations to give effect to inter alia an Act adopted by an institution of the European Union”.

Directive 2006/126 EC

5 There is no requirement of normal residence or residency entitlement provided for in the Road Traffic Acts. However, Directive 2006/126 EC of the European Parliament and of the Council of 20 December 2006 on driving licences (Recast) (the “Directive”) provides that driving licences shall only be issued to individuals who have their normal residence in the State. Article 7(1) (e) of the Directive states:-

“Driving licences shall be issued only to those applicants:

… .

(e) who have their normal residence in the territory of the Member State issuing the licence, or can produce evidence that they have been studying there for at least six months”.

Regulation 12

6 Regulation 12 of the 2006 Regulations requires that an applicant for a driving licence have his or her normal residence in the State in that it provides as follows:-

“12 Application for driving licence.

(1) A person making an application for a driving licence 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 3

7 The term “normal residence” is defined in Regulation 3 (1) of the 2006 Regulations and reflects the definition contained in Article 12 of the Directive. Regulation 3 states:-

“‘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 …”.

Normal residence

8 Having regard to the foregoing, an application for a driving licence must be made in accordance with the 2006 Regulations which require an applicant for a driving licence to have their normal residence in the State. Of particular relevance to the present proceedings is whether the applicants have their normal residence in this State or, to put the question in different terms, whether the applicants are eligible to apply for a driving licence in the context of the basis upon which they have permission to be in the State.

Driving licence application form

9 Regulations 12 (2) and 20 (2) of the 2006 Regulations deal with the manner in which an application for a licence is to be made. An application shall be made on a designated form scheduled to the said Regulations. This form identifies the information required including the relevant declarations or medical reports if required. The scheduled form applicable at the time of the applications made by the applicants in these proceedings was that substituted by the Regulations made in 2016. In the driving licence regulations as originally adopted in 2006, the scheduled forms required applicants to provide their address and to make a declaration as to their normal place of residence. In the driving licence regulations as amended in 2016, the schedule forms continued to require applicants to provide their address and make a declaration as to their normal place of residence. However, immediately after the 3-page form (D401) which comprised a schedule to the 2016 Regulations was a 1-page was document entitled “Application Checklist for Driving Licence”.

Application Checklist

10 This “Checklist” (in relation to a learner permit or driving licence or the exchange a foreign licence) states that applicants must supply “ evidence of residency entitlement” and reference is made to “ page 2 of the guidance notes”. The guidance notes do not form any part of the driving licence Regulations.

Guidance Notes

11 The guidance notes applicable as of November 2018 state the following with regard to “ ...