A.B v Road Safety Authority

• Jurisdiction: Ireland
• Judge: Ms. Justice Creedon
• Judgment Date: 25 March 2021
• Neutral Citation: [2021] IEHC 217
• Docket Number: [RECORD NO. 2020 137 CA]
• Year: 2021
• Court: High Court

IN THE MATTER OF THE EQUAL STATUS ACTS 2000 – 2015 AND IN THE MATTER OF AN APPEAL UNDER S. 28 (3) OF THE EQUAL STATUS ACTS 2000 - 2015

BETWEEN

A.B.

APPELLANT

AND

ROAD SAFETY AUTHORITY

RESPONDENT

[2021] IEHC 217

Creedon

[RECORD NO. 2020 137 CA]

THE HIGH COURT

CIRCUIT APPEAL

JUDGMENT of Ms. Justice Creedon delivered on the 25th day of March 2021;

Background

1 The Appellant referred to only for the purposes of this judgment as A.B., to protect their identity, applied for asylum in the State in 2015 and has lived in Ireland continuously since that date. They instituted a complaint under the Equal Status Acts 2000 – 2015 (the “Equal Status Acts”) against the Respondent which was the subject of a decision from the Workplace Relations Commission (“WRC”) on the 28th January 2020.

2 The Respondent appealed the decision of the W.R.C to the Circuit Court pursuant to s. 28 of the Equal Status Acts. By judgment delivered the 30th July 2020, the Circuit Court allowed the Respondent's appeal.

3 By notice of appeal dated the 6th August 2020, the Appellant has, pursuant to s. 28 (3) of the Equal Status Acts, appealed the whole of the Circuit Court decision to this Court on the points of law enumerated therein as follows: -

(i) The Circuit Court erred in law in its interpretation of the Road Traffic (Licencing of Drivers) Regulations 2006 (as amended). More particularly;

(a) The Circuit Court erred in law in concluding that the said regulations imposed a “requirement to provide evidence of residency entitlement in Ireland”;

(b) The Circuit Court erred in law in its interpretation of the concept of residence for the purposes of the regulations, including by adopting, expressly or by implication, an interpretation of the concept of “ normal residence” that is contrary to its plain meaning and contrary to EU law.

(ii) The Circuit Court erred in law in its interpretation of the Equal Status Acts 2000 – 2015, more particularly;

(a) The Circuit Court erred in law in its conclusion that the conduct of the Respondent did not discriminate against the Appellant on the ground of race.

(b) The Circuit Court erred in law in its conclusion - without any reference to the decision - that the decision of the W.R.C went substantially beyond its remit.

Agreed factual background

4 The parties submitted to the Circuit Court an agreed statement of facts as follows.

5 The Appellant, A.B., applied for international protection in Ireland in 2015. A.B. lives in Munster and works in Co. Dublin. A.B. was unable to move to Dublin due to a lack of direct provision accommodation in that area.

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

7 A.B. applied to the National Driver Licence Service (NDLS) which is a registered trademark of the Respondent for a learner driver permit on the 31st October 2018. This application was not accepted by the NDLS on the basis that the application had failed to include valid evidence of A.B.'s residency entitlement. A.B. had provided the NDLS with her TRC in support of her application.

8 A.B. notified the Road Safety Authority (the Respondent) of a complaint pursuant to the Equal Status Acts 2000 – 2015 using the form ESI dated the 7th November 2018. The Road Safety Authority responded using Form ES2 on the 4th December 2018.

9 A.B. filed a complaint to the W.R.C on the 28th March 2019 in which they complained that the refusal of their application for a learner permit by the Road Safety Authority amounts to discrimination on grounds of race contrary to the Equal Status Acts 2000 – 2015. This complaint was heard on the 4th September 2019.

10 The decision of the W.R.C was further appealed by the respondent Road Safety Authority to the Circuit Court which gave its decision on the 30th July 2020. It is from this Circuit Court decision that the Appellant appeals to this Court.

Appellant's Arguments

11 The Appellant lodged written submissions in which it stated inter alia:

12 That s. 28(3) of the Act states that following an appeal from the W.R.C to the Circuit Court, no further appeal lies other than an appeal to the High Court on a point of law. In Stokes v. Christian Brothers High School Clonmel [2015] 2 IR 509 at p. 536, Clarke J., in interpreting, held that the principles governing the scope of such an appeal under s. 28 (3) were those identified in Deely v. Information Commissioner [2001] 3 IR 439 at p.452. The Appellant therefore confirmed that this appeal is confined to a point of law that the Circuit Court erred in its interpretation of the Road Traffic (Licencing of Drivers) Regulations 2006 (S.I. no. 537/2006) (the 2006 Regulations) as amended, hereinafter referred to as the 2006 Regulations and the Equal Status Acts.

13 The Appellant emphasised both at first instance, before the W.R.C and on appeal before the Circuit Court, that the claim is a claim of discrimination under the Act and not a challenge to the validity of the 2006 Regulations. The Appellant stated that the issue in the case does not lie in the 2006 Regulations themselves, but rather in the application and the interpretation of the 2006 Regulations by the Respondent. The Appellant argued that the Respondent's practice and policy in this regard constitutes discrimination on the ground of race contrary to the Equal Status Acts.

14 In circumstances where the Circuit Court concluded that the claim was “ in effect a challenge to the law governing the issuing of driving licences and the requirement to provide evidence of residency entitlement in Ireland” and that the W.R.C went “ substantially beyond its remit” the Appellant argued that the Circuit Court erred in law in its characterisation of the Appellant's challenge and in concluding that the W.R.C went substantially beyond its remit.

15 The Appellant argued further that the Circuit Court erred in law in concluding that the 2006 Regulations imposed a “ requirement to provide evidence of residency entitlement in Ireland”.

16 The Appellant argued that Regulation 20 (1) of the 2006 Regulations requires that an applicant for a learner permit have his or her “ normal residence” in the State, a concept that derives from the EU law governing driving licences. Notwithstanding the terms of the Regulations, for non – nationals the RSA imposes a requirement which goes beyond normal residence, that is a requirement of “ residency entitlement” which the appellant argues is not found in the Regulations themselves.

17 The Appellant argued that it is in this subtle way that the Respondent excludes all Applicants for international protection from access to driving licences in the State. The Appellant argued that if the Respondent expressly and openly adopted a policy or practice excluding access to Applicants for international protection there would be no question but that such a policy or practice would be discriminatory on the ground of race contrary to the Equal Status Acts. The Appellant argued that the fact that the Respondent does so in practice indirectly by imposing an additional requirement going beyond those described in the 2006 Regulations is no less discriminatory.

18 The Appellant stated that the Road Traffic (Licencing of Drivers) Regulations 2006 (S.I. no. 537/2006) (the 2006 Regulations) as amended, govern the granting of driving licences in the State. The Regulations give effect to a series of EU Directives now recast as Directive 2006/126/EC. Regulation 20 (1) provides for learner permits as follows: -

“A person making an application for a provisional licence shall:

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

(b) Have been studying in the State for at least six months prior to the date of the application”.

19 Regulation 3 defines normal residence 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”.

20 The Appellant argued that this definition in Regulation 3 reflects the terms of Article 12 of Directive 2006/126/EC. The Appellant further argued that it is clear that “ normal residence” in Regulation 3 and Article 12 is essentially a question of fact.

21 The Appellant referred to the Road Traffic (Licensing of Drivers) (amendment) (no. 2) Regulations 2016, S.I. 656/2016 (the “2016 Regulations”) which came into effect on the 1st January 2017. It is not disputed between the parties that these Regulations were in effect when the Appellant applied for a provisional licence. Schedule 2 of this statutory instrument substituted a new form DT01 as the application for a learner permit which includes a checklist for a learner permit.

22 The Appellant argued that the reference to “residency entitlement” in the application checklist at Schedule 2 of the 2016 Regulations cannot change the substantive requirements of the regulations themselves all the more so where such requirements derive from EU law and that in any event this concept of “ residency entitlement” is nowhere defined in either the Regulations or the...