Md. Saydur Rahman v Superintendent Columba Healy Superintendent Thomas Murphy (as Authorised Officers for the Dublin Metropolitan Region) Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 25 April 2022
• Neutral Citation: [2022] IEHC 206
• Court: High Court
• Docket Number: 2020 No. 441 JR

In the Matter of the Taxi Regulation Act 2013

Between

Md. Saydur Rahman

Applicant

and

Superintendent Columba Healy Superintendent Thomas Murphy (As Authorised Officers for the Dublin Metropolitan Region) Commissioner of an Garda Síochána

Respondents

[2022] IEHC 206

2020 No. 441 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Temporary immigration permission – Small public service vehicle driver’s licence – Applicant seeking to challenge a decision to grant a small public service vehicle driver’s licence with a duration coterminous with that of the applicant’s temporary immigration permission – Whether the decision to grant a small public service vehicle driver’s licence with a duration coterminous with that of the applicant’s temporary immigration permission was invalid

Facts: The applicant, Md. Rahman, a citizen of Bangladesh, married an EU citizen on 14 May 2012 and was granted a residence card as a family member of an EU citizen on 17 May 2013. The marriage was dissolved by a decree of divorce granted by the Circuit Court on 25 January 2018. The applicant applied to the Minister for Justice to retain a right of residence in the State on an individual and personal basis pursuant to the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015). The application was refused by an initial decision on 25 May 2019. The applicant invoked his right to seek a review of the initial decision. The review decision was ultimately made on 23 March 2021, and upheld the initial decision. In the interim, pending the review decision, the applicant had been granted a series of temporary immigration permissions which allowed him to reside in the State and to enter into employment. The applicant applied to the High Court seeking to challenge two decisions. The first decision of December 2019 had been to grant a small public service vehicle (SPSV) driver’s licence with a duration coterminous with that of the applicant’s temporary immigration permission. The second decision impugned was the refusal of an SPSV driver’s licence in May 2020.

Held by Simons J that the first decision of December 2019 was invalid. Simons J held that an SPSV driver’s licence has a fixed duration of five years and the licensing authority is not entitled to grant a licence for a shorter period of time. Simons J held that the licensing authority is entitled to make it a condition of a licence that the licensee produce to the authority a renewed immigration permission on the expiration of the current one; if a renewed immigration permission is not produced on time, then the licensing authority would be entitled to revoke the SPSV driver’s licence forthwith pursuant to s. 12 of the Taxi Regulation Act 2013. Simons J held that the applicant had not established any grounds for setting aside the second decision of May 2020. Simons J held that the licensing authority acted lawfully in having regard to the adverse findings made against the applicant by the immigration authorities.

Simons J held that, ordinarily, the appropriate remedy in the circumstances would have been an order setting aside the first decision of December 2019 and remitting the matter for reconsideration by the licensing authority in light of the findings of the court. Simons J held that matters were complicated by the fact that the Minister for Justice, by a decision which postdated the institution of the judicial review proceedings, had affirmed the first-instance decision to refuse the applicant a right of residence. Simons J held that the applicant had no entitlement to remain in the State, still less to work in the State. Were the matter to be remitted against that factual background, it seemed inevitable to Simons J that the application for a licence would be refused. Simons J held that he would hear further from counsel before forming a concluded view as to the appropriate order; this was done against a background where there were separate judicial review proceedings pending before the High Court which sought to challenge the refusal of a right of residence.

Application allowed in part.

Appearances

Rosario Boyle, SC, Aengus Ó Corráin and Marie Flynn for the applicant instructed by Thomas Coughlan & Co. Solicitors (Cork)

Robert Barron, SC and Kilda Mooney for the respondents instructed by the Office of the Chief State Solicitor

JUDGMENT of Mr. Justice Garrett Simons delivered on 25 April 2022

INTRODUCTION

1 This judgment addresses the extent, if any, to which a person's immigration status may be taken into account in deciding whether to grant them a licence to drive a small public service vehicle (including, relevantly, a taxi).

LEGISLATIVE FRAMEWORK

2 There is a statutory requirement for a person to hold a licence in order to drive a small public service vehicle for the carriage of persons for reward. This requirement is provided for under section 22 of the Taxi Regulation Act 2013. A licence of this type will be referred to in this judgment as an “ SPSV driver's licence”. It should be explained that a separate licence is required in respect of the vehicle itself. Whereas this judgment is concerned with the refusal of an SPSV driver's licence, it will be necessary to make brief reference, by analogy, to how an applicant's immigration status is addressed in the context of the vehicle licensing regime. The Taxi Regulation Act 2013 uses the term “ licence” to describe both types of licences.

3 The Taxi Regulation Act 2013 envisages that the National Transport Authority will, ultimately, be the licensing authority. However, An Garda Síochána are acting as the licensing authority on an interim basis pending the making of the requisite Ministerial Order pursuant to section 7 of the Act. The Commissioner of An Garda Síochána has nominated the first and second named respondents as authorised officers for the Dublin Metropolitan Region pursuant to section 70 of the Act.

4 The fact that the National Transport Authority has not yet assumed its intended role as licensing authority has the consequence that there is currently a split between the licensing function and the wider regulatory function under the Taxi Regulation Act 2013. It is the National Transport Authority which is responsible, under section 7 of the Act, for prescribing the terms and conditions relating to the grant of a licence and the information and documentation to accompany an application. The National Transport Authority is also responsible, under section 8 of the Act, for the establishment of requirements and conditions for the purpose of the assessment of applicants for the grant of licences.

5 The National Transport Authority has made regulations which prescribe a number of matters which must accompany an application for a new or renewed SPSV driver's licence. These include, inter alia, (a) evidence that the applicant has held a valid driving licence without endorsement for more than twelve months; (b) evidence that the appropriate fee has been paid; (c) an undertaking not to drive the vehicle for more than eleven hours in any one day in any period of three consecutive days; (d) a valid tax clearance certificate; (e) evidence of the successful completion of the relevant SPSV driver entry test for the chosen area of operation; (f) information in relation to any other occupation held by the applicant; (g) a declaration in respect of health matters; (h) if requested, information in relation to the applicant's mental health; (i) a declaration in respect of convictions; and (j) such other items as may be directed from time to time by the licensing authority.

6 The regulations made by the National Transport Authority do not impose any obligation, in the context of an application for an SPSV driver's licence, for an applicant to provide information or documentation in respect of their immigration status. This is to be contrasted with the position obtaining in respect of an application for an SPS vehicle licence. In the case of an applicant who is a non-national, an application for an SPS vehicle licence must be accompanied by a declaration by such person that the conditions of their immigration permission do not preclude them from operating a business or being self-employed in the State: see Taxi Regulation (Small Public Service Vehicle) Regulations 2015, reg. 13.

7 A licensing authority is precluded, under section 10 of the Taxi Regulation Act 2013, from granting a licence unless it is satisfied that the applicant is a “ suitable person” to hold a licence. The term “ suitable person” is not defined, but a number of criteria are prescribed as follows under section 10(2) of the Act:

“(2) In assessing whether a person is a suitable person to hold a licence, the licensing authority may, amongst any other matters, have regard to the following:

• (a) whether the applicant is of good character;

• (b) any concerns raised by the Authority or the Garda Commissioner or other member of the Garda Síochána regarding the applicant's suitability to hold a licence;

• (c) any convictions for offences (including offences under the enactments mentioned in the Schedule) committed by the applicant, and the extent to which those convictions are of relevance to the activities of the person in respect of providing small public vehicle services or driving a small public service vehicle, as the case may be;

• (d) in respect of an application for a licence to drive a small public service vehicle, the health of the applicant and his or her ability to provide small public vehicle services or drive a small public service vehicle;

• […]

• (f) where an applicant has previously held a licence, his or her compliance with any obligations applicable to him or her as a licence holder under this Act or regulations under section 34 of the Act of 2003 or section 82 of the Act of 1961.”

8 (The criterion at subparagraph (e) concerns corporate...