Complainant

Respondent

Anonymised Parties

An asylum seeker

A Government Agency.

Representatives

David Fennelly BL instructed by Stephen Collins, Irish Human Rights and Equality Commission

Shelley Horan BL instructed by McCann Fitzgerald Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00023025-001

05/11/2018

The Complainant is a Pakistani national who has lived in Ireland since June 2015. Upon arrival in Ireland, he sought asylum and he remains in the international protection system. He is married to an EU national and lives in Kildare, County Kildare.

The Complainant applied for and was granted a temporary self employment permit in March 2018 under this scheme which has since been automatically renewed. Since then, he has worked as a delivery man, using a bike for this purpose.

In order to facilitate the exercise of his right to work and to enable him to increase his income, the Complainant needs to be able to drive. It is for this reason that, after obtaining his self-employment permit, he applied for a learner permit to allow him drive a car.

During the hearing of this complaint I was asked to anonymise the parties and due to the possible safety implications I have agreed to this request.

The Complainant is a Pakistani national who has lived in Ireland since June 2015. Upon arrival in Ireland, he sought asylum and he remains in the international protection system. He is married to an EU national and lives in Kildare, County Kildare.

Up until recently, asylum seekers were not permitted to work in the State. Following the Supreme Court judgment in NHV v. Minister for Justice [2018] 1 IR 246, which struck down the absolute prohibition on asylum seekers seeking employment, the Department of Business, Enterprise and Innovation brought in a temporary employment permit scheme open to applicants for international protection.

The Complainant applied for and was granted a temporary self employment permit in March 2018 under this scheme which has since been automatically renewed. Since then, he has worked as a delivery man, using a bike for this purpose.

In order to facilitate the exercise of his right to work and to enable him to increase his income, the Complainant needs to be able to drive. It is for this reason that, after obtaining his self-employment permit, he applied to the appropriate Government agency (the Respondent) for a learner permit to allow him drive a car.

In order to be eligible for a learner permit, an applicant must be normally resident in the State. In support of his application, the Complainant provided various forms of identification, including his Public Services Card, his Pakistani passport, his temporary residence certificate and his self-employment permit (which included his address).

Following an exchange of correspondence, the Complainant’s application was rejected on 10 July 2018 on the basis that he had failed to provide valid proof of residency.

The Complainant’s application was refused on the ground of his race as that term is defined in the Equal Status Acts 2000-2015 {"ESA" or "the Acts") and, in particular, on account of his status as an asylum seeker. The Complainant notified the Respondents of his complaint by way of an ES1 form.

In its ES2, replying to this notification, the Respondent has relied on the Road Traffic {Licensing of Drivers) Regulations 2006, the 2006 Regulations”) and the Guidance notes for the completion of your Learner Permit Application Form {"The Guidance Notes") issued by the Government agency on the documents which are acceptable as evidence of "normal residence". It has expressed the view that persons who are allowed to reside in the State solely for the purpose of seeking international protection "are not "resident for the purposes of the Regulations".

The Legal Framework

The Equal Status Acts 2000-2015

Section 5(1) ESA 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 ESA 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 clearly a service for the purposes of the Act.

Under Section 3(1) ESA, discrimination is taken to occur where a person is treated less favourably than another person 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(2)(h) recognises race as one of these grounds: that is, as between any two persons, they "are of different race, colour, nationality or ethnic or national origins". In this regard, it is relevant to note that less favourable treatment arises not just where people in comparable situations have not been treated in the same manner but also where there is a failure to afford people who are differently situated different treatment that takes account of those differences, particularly where they arise directly from a protected status under the legislation.2

The 2006 Regulations

The Government agency has relied on the 2006 Regulations in defence of its refusal to grant the Complainant a learner permit. At section D.1 of the ES2, the Respondent refers to Regulation 12(1) of the 2006 Regulations which requires applicants for a driving licence to have his normal residence in the State or to have been studying in the State for at least six months prior to the date of application.

In fact, Regulation 20 makes specific provision for learner permits, and this would appear to be the provision which actually governed the Complainant’s application. Regulation 20(1) of the 2006 Regulations (as amended by S.I. No. 420 of 2013) provides as follows:

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.

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;

It is important to emphasize that, while Regulation 20(1) requires an applicant to have his or her normal residence in the State, it does not stipulate the particular forms of proof or documentation which must be furnished by an applicant for this purpose. Such requirements are not specifically enshrined in the 2006 Regulations. For this reason, Section 14 ESA provides no defence to the Respondents for the purposes of this claim.

By contrast, Regulation 20(5) does list the documents required to be furnished with an application for a learner permit:

By contrast, Regulation 20(5) does list 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-

       1.            is the holder of a driving licence, or a recognised driving licence issued by the competent authority of a Member State such licence,

       2.            is the holder of a provisional licence, such licence,

       3.            not being the holder of a driving licence, held a driving licence

                or a recognised driving licence issued by the competent authority of a Member State, for

               any period within the preceding 10 years, the last such licence granted to him or her,

       4.            not being the holder of a provisional licence, held such a licence for any period within the preceding 5 years, the last such licence granted to him or her unless, subsequent to the grant of such licence, he or she was granted a driving licence,

       5.            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

       6.            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. 42012013)

(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.

It will be noted that subparagraph (d) refers in general tenns to a birth

certification, passport or registration certificate.

Regulation 54 (as amended by S.I. No. 98 of 2018) which deals with evidence of identity provides as follows:

An applicant for a driving or provisional licence or a duplicate of such licence must, if requested by the licensing authority to whom the application is made, include details with the application or produce for examination by the authority any of the following, -

(a)            a passport,

(b)            an employee or student identity card,

(c)             a book issued in the State for payment of social welfare allowances, benefits or pensions,

(d)            a medical card issued in the State,

(e)             a free travel card issued in the State by the Department of Social, Community and Family Affairs,

(f)              a travel document containing the name and photograph of the holder,

(g)            a signing-on card issued in the State by the Department of Social, Community and Family Affairs,

(h)            a bank, savings bank book or cheque book,

(i)              a credit or charge card,

(j)        a credit union membership card,

(k)      a birth certificate,

(l)     a marriage certificate,

(m)     a registration certificate, and

(n)     a public services card (within the meaning given to it by section 263 (1) (inserted by section 9 (1) of the Social Welfare and Pensions Act 2010 (No. 37 of 2010)) of the Social Welfare Consolidation Act 2005 (No. 26 of 2005)

It will be noted that this provision is concerned with evidence of identity generally and not with evidence of residency as such. It will also be noted that it refers to a passport, registration certificate and public services card in general terms without imposing additional requirements in respect of those documents.

According to the ES2, the Guidance Notes identify the documents which are acceptable as evidence of normal residence in the State:

·         Public services card -where place of birth or nationality is within EU/EEA/Switzerland.

·         Irish/UK (long-form) birth certificate or adoption certificate

·         Driving Licence/Learner permit where number 3 shows place of birth is within EU/EEA/Switzerland

·         Certificate of entry in the Irish Foreign Births Register

·         Irish passport/passport card (current or expired by no more than 12 months)

·         Current passport for all EUIEEA/Swiss citizens (valid for international use)

·         Current national identity card for EUIEEA/Swiss citizens

·         Irish certificate of naturalisation

·         Current certificate of registration (Garda National Immigration Bureau/GNIB card) or Irish residence permit (/RP) for non-EUIEEA/Swiss citizens (The GNIB and /RP cards must be presented with a current passport valid for international use or a Public Services Card)

This list has been updated since the time of the Complainant’s application, to include the public services card but only where the place of birth of nationality is within the EU/EEA/Switzerland.

"Normal Residence"

Normal residence is defined in the 2006 Regulations 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....". Thus, a person's normal residence is a question of fact.

In considering the same phrase in the Housing Act 1996 (UK) in Mohamed v. Hammersmith and Fulham LBC, Lord Slynn, for the House of Lords, concluded (at paragraph 18):

It is clear that words like "ordinary residence" and "normal residence" may take their precise meaning from the context of the legislation in which they appear but it seems to me that the prima facie meaning of normal residence is a place where at the relevant time the person in fact resides. That therefore is the question to be asked and it is not appropriate to consider whether in a general or abstract sense such a place would be considered an ordinary or normal residence. So long as that place where he eats or sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is for the relevant time the place where he normally resides. If a person, having no other accommodation, takes his few belongings and moves into a barn for a period to work on a farm that is where during that period he is normally residence, however much he might prefer some more permanent or better accommodation. In a sense it is "shelter' but it is also where he resides ....

This passage has frequently been cited with approval, including in a later case addressing the issue in the context of the provision of accommodation to destitute asylum seekers.

While the Irish courts have interpreted the analogous phrase - "ordinarily resident" - in a number of cases, they have done so in the specific context of section 3(9) of the Immigration Act 1999 which requires three months' notice to be given where a deportation order is to be served on a person "ordinarily resident" in the State for a period of not less than 5 years. In the specific context of that provision, which regulates the legality of residence in the State, that phrase has been interpreted as connoting "a residency which is lawful, regularand bona fide".5

Having regard to the specific definition of "normal residence" under the 2006 Regulations, there is no basis for importing an additional requirement of legality or regularity into the term. In any event, in this case, the Complainant has not unlawfully been present in the State as he has, since June 2015, been present for the purposes of seeking asylum and international protection. His situation is thus materially different from that of failed asylum seekers or visa overstayers whose residence in the State has become unlawful.

In this case, it is undisputed that the Complainant in fact resides in Ireland and has done so since June 2015, a period of over three and half years. While different legal questions may arise as to whether this residence may be considered legal or 'reckonable' residence for the purposes of any application for citizenship, the fundamental factual position is clear beyond doubt: he is normally resident in the State.

Direct Discrimination in the Interpretation and Application of the 2006 Regulations

The Complainant does not take issue with the requirement to be normally resident in the State for the purposes of issuing a learner permit. He is normally resident in the State.

However, the manner in which the Respondents have interpreted and applied this requirement - and in particular required proof thereof - constitutes discrimination on the grounds of race in the sense that it subjects the Complainant to less favourable treatment on the basis of his nationality and/or national origins.

The conduct of the Respondents is directly discriminatory in a number of respects.

First, the Respondents appear to have adopted a policy and/or practice in interpreting and applying the 2006 Regulations that applicants for international protection, such as asylum seekers, are never normally resident in the State for the purposes of the 2006 Regulations. While this position was never communicated to the Complainant in his correspondence with the Government Agency , it is the avowed position of the Respondent in its   ES2 in these proceedings. As outlined above, normal residence, properly interpreted, is a question of fact. Nothing in the 2006 Regulations supports, still less requires, the adoption of such a policy and/or practice. If applicants for international protection were excluded automatically and absolutely from applying for learner permits, this would constitute a significant interference with their fundamental rights, including their right to earn a livelihood as recognised in NHV. Nothing in the 2006 Regulations supports such an interpretation and such an interpretation should not be lightly inferred. Indeed, if students who have been in the State for six months are entitled to apply for learner permits (as is now clear in the amended Regulation 20), there is no good reason why asylum seekers who have been in the State for a significantly longer period of time should be precluded from applying for a learner permit. The 2006 Regulations must therefore be interpreted in a manner that is compatible with the fundamental rights of applicants for international protection, as protected under the Constitution and the ECHR.

Such an interpretation militates against the policy and/or practice which the Respondent has purported to adopt with respect to asylum seekers. For these reasons, it is submitted that a policy and/or practice which automatically and absolutely excludes applicants for international protection - who, by definition, will not be of Irish nationality (or, indeed, in the vast majority of cases, EU/EEA nationality)- from being granted learner permits is on its face discriminatory.

Secondly, even leaving aside this policy/practice, in their application of the 2006 Regulations, the Respondents have discriminated against the Complainant on the grounds of nationality and/or national origin. The 2006 Regulations do not prescribe the documents which must be accepted for the purpose of proving normal residence in the State. Notwithstanding this, the Government agency in its Guidance Notes lists the following as the documents acceptable as proof of residency for this purpose: an Irish birth certificate, passport or certificate of naturalisation, a current passport or national identity card for EU/EEA/Swiss citizens or a certificate of registration (GNIB cards) for non-EU/EEA/Swiss citizens. In addition, it imposes additional requirements in respect of some of these documents to those laid down in Regulation 54. Thus, the certificate of registration must be in the form of a GNIB card and accompanied by a current passport valid for international use. More recently, the Government agency appears to have added the Public Services Card to this list but only for Irish, EU/EEA/Swiss citizens. By insisting on the documents identified in the Guidance Notes for the purposes   of proof     of residency (notwithstanding the fact that the 2006 Regulations impose no such requirement), the Respondents discriminate between Irish and EU/EEA/Swiss citizens, on the one hand, and non-­ lrish/EU/EEA/Swiss citizens, on the other hand. The Complainant furnished both his passport and Public Services Card, but these were not accepted. Moreover, even in the case of non-EU/EEA/Swiss citizens, the Respondents further discriminate by accepting only a GNIB card as a "current certificate of registration". The Complainant has a certificate of registration, but it is a temporary certificate - the form of registration document provided to international protection applicants - and it is not a GNIB card. While he furnished this document, this was also not accepted by the Respondents. Thus, notwithstanding the fact that he has furnished multiple documents as proof of residency - any one of which would be acceptable from applicants of other nationalities - his application was refused. This constitutes direct discrimination on the grounds of nationality and/or national origin.7

Thirdly, the conduct of the Respondents was also directly discriminatory in the sense that it has failed to afford people who are differently situated different treatment that takes account of those differences. The requirements for proof of residency - which do not flow directly from the 2006 Regulations but which purport to be prescribed by the Guidance Notes - take no account of the distinct position of foreign nationals who may be in the State for the purposes of seeking international protection. Such persons may well be normally resident in the State, particularly having regard to the very extensive delays in the international protection process in this jurisdiction. Yet because of their status they would not be in a position to satisfy the specific requirements imposed by the Guidance Notes even though they may undoubtedly meet the requirement for normal residency under the 2006 Regulations themselves. First, because of their particular circumstances (for example, in many cases, fleeing persecution or conflict), they may have particular difficulties in furnishing documents such as passports for the purpose of proving identity and/or residency. Secondly, the particular documentation which they are provided with by the State recognising their position in Ireland takes a different form to that provided to Irish citizens, EU/EEA/Swiss citizens and other foreign nationals. There is no basis in logic or in law why the Respondents could accept a certificate of registration in the of the Public Services Card. For these reasons it is submitted that, in the application of the 2006 Regulations, the Respondents failed to take account of the different situation and needs of this particular group of non-nationals and, on this basis, was also discriminatory.

Indirect Discrimination

Further or in the alternative, and without prejudice to the primary submission that the conduct of the Respondents was directly discriminatory, it is submitted that the conduct of the Respondents may also constitute indirect discrimination.

The Respondent, in its ES2, asserts that the 2006 Regulations lay down uniform requirements which must be satisfied by all applicants. While it is accepted that the requirement of normal residence enshrined in Regulation 20 is a neutral rule that applies to all applicants, the Complainant’s primary case, as set out above, is that this neutral rule has been interpreted and applied - in particular through the Guidance Notes - in a manner which is directly discriminatory on the grounds of race for the reasons set out above.

However, even if it is not accepted that the Respondents' conduct has been directly discriminatory, it is submitted that the manner in which the Respondents applied this neutral rule (i.e. the requirement of normal residence) puts non-­ lrish/EU/EEA/Swiss nationals - and, in particular, that cohort of such foreign nationals who are in the international protection system - at a particular disadvantage. The N Guidance Notes afford a privileged position to official documents of the Irish State and certain other European States in the list of acceptable documents for the proof of residency. While this may not be objectionable in itself, it unquestionably puts non-Irish/European nationals at a distinct disadvantage for the purposes of proof of residency. Among such foreign nationals, international protection applicants are placed at an even greater disadvantage because the Guidance Notes distinguish between a certificate of registration issued in the form of a GNIB card and a temporary certificate of registration of the kind provided by the Complainant, even though in both cases the foreign national may be residing in the State for a considerable period of time. In the absence of any objective justification for these additional requirements, it is submitted that they constitute indirect discrimination on the grounds of race (by reference to nationality and/or national origin).

Conclusion

For these reasons, it is submitted that the Respondents have discriminated against the Complainant on the grounds of race and that he is entitled to appropriate redress, including but not limited to compensation for the effects of the discrimination.

The Respondent is a statutory body within whose remit responsibility for the issuance of driving licences falls. The key functions of the Respondent are to improve road safety in Ireland by:

a.       Developing and implementing information and education campaigns to increase awareness of road safety and to promote safer driving;

b.       Improving vehicle standards;

c.       Establishing and monitoring a standard for driver instruction;

d.       Overseeing the system of driver licensing and undertaking certain enforcement activities;

e.       Working with stakeholders to ensure a co-ordinated response and ensure that collective resources are used wisely and efficiently;

f.        Undertaking accident and road safety research in order to develop measures and recommendations to improve road safety;

g.       Advising the Minister for Transport on road safety policy;

h.       Producing road safety strategy documents and monitoring their implementation.

In particular, since January 2013, the Respondent has responsibility for driving licences in Ireland and a service provider has been tasked with the processing of applications, on behalf of the Respondent, since September 2013.

The Respondent received an application for a learner driver permit from the Complainant on 12 April 2018. Having requested additional documentation from the Complainant on six dates from 18 April 2018 to 11 June 2018, the application was ultimately refused by letter dated 14 June 2018 on the basis that the application failed to include satisfactory evidence of the Complainant's normal residence in the State.

The Respondent is obliged by law to seek evidence of applicants’ normal residence pursuant to Regulation 12(1) of the Road Traffic (Licensing of Drivers) Regulations 2006 (SJ. 537/2006, as amended which requires a person making an application for a driving licence (which includes a learner permit) to: (a) have his "normal residence" in the State; or (b) to have been studying in the State for at least six months prior to the date of the application. "Normal residence" is defined by Regulation 3 of the Regulations as "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"

The 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 (Recast) ("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 issue of a driving licence and for 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 only, 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.

In compliance with its obligations under Irish and European Union law, the Respondent has published guidance (the "Guidance Notes"), on the evidential requirements to prove residency entitlement. The requirements are also published on the Respondent's website. As can be seen therefrom, the documents which the Respondent requires as evidence of residency entitlement are as follows:

(b)    Public services card - where place of birth or nationality is within European Union ("EU"), European Economic Area ("EEA") or Switzerland;

(c)     Irish or UK (long-form) birth certificate or adoption certificate;

(d)    Driving Licence or learner permit where same shows place of birth as within EU, EEA or Switzerland;

(e)  Certificate of entry in the Irish Foreign Births Register;

(f)      Irish passport or passport card (current or expired by no more than 12 months);

(g)  Current passport for all EU, EEA or Swiss citizens (valid for international use);

(h)    Current national identity card for EU, EEA or Swiss citizens;

(i)      Irish certificate of naturalisation; or

(j)      Current certificate of registration (Garda National Immigration Bureau card) or Irish residence permit for non- EU, EEA or Swiss citizens. These documents must be presented with a current passport valid for international use or a Public Services Card).

These documents are assessed by the processing agent together with the entirety of the supporting documentation submitted as part of an application in determining whether an applicant has satisfied the requirement to provide evidence of normal residence. The documentary requirements are clearly stated in the Guidance Notes and on the processing agent’s website.

The Complainant submitted a query regarding the documentary requirements to the Respondent on 10 April 2018, i.e., prior to submitting his application on 12 April 2018. The Complainant was at all times aware of the Respondent's requirements regarding evidence of residency entitlement, which are in any event contained in its guidance and on its website, as set out above.

The Complainant made an application to the Respondent for a learner driver permit on 12 April 2018, in the course of which he submitted a Temporary Residence Certificate, a copy of his Pakistani passport and a Self-Employment Permission.

In accordance with the requirements of the Guidance Notes, and after repeated requests by the Respondent for satisfactory documentary evidence of his residency entitlement, the Complainant's application was duly refused by letter from the the processing agency dated 14 June 2018. Furthermore, as the Complainant's application was not complete due to lack of supporting documentation, the Respondent issued a refund to the Complainant of the cost of his application fee on 18 September 2018 by cheque. The Respondent again attempted to issue this refund to the Complainant on 23 January 2019.

THE RESPONDENT'S FORM ES.2

Following the rejection of the Complainant's application, the Respondent received a Form ES. I from the Complainant on 20 August 2018. The Complainant states that the refusal to accept his proffered evidence of residency amounts to discrimination on the grounds of race. He states that the refusal limits his employment opportunities and the income he can earn as a delivery man.

In his Complaint Form to the WRC, the Complainant states that he did not receive a reply to his Form ES.1 from the Respondent. The Respondent prepared a reply in the form ES.2 dated 7 September 2018. The Respondent in its response stated that its requirement to show evidence of residency entitlement is not discriminatory on the grounds of race and must be satisfied by all applicants for driving permits, irrespective of race. Delivery of the Respondent's Form ES.2 by registered post was attempted at the address provided on the Complainant's Form ES.1 on 10 September 2018. This Form ES.2 was however returned to the Respondent's solicitors marked "Gone away". A further attempt to deliver the Respondent's Form ES.2 by ordinary post on 12 September 2018 was unsuccessful and this correspondence was returned to the Respondent's solicitors marked "Unknown at this address".

In the absence of any alternative contact address or telephone number for the Complainant on his Form ES.1, the Respondent exhausted all options to deliver its reply to the Complainant. The Respondent took every reasonable measure to provide the Form ES.2 to the Complainant before one month had elapsed since receiving his Form ES.1. Upon receipt of the Complainant's Complaint Form, the Respondent forwarded this series of correspondence to the WRC by email dated 15 November 2018 on the express assumption that it would be forwarded by the WRC to the Complainant's updated address as provided in his Complaint. Accordingly, no inferences can be drawn under section 26 of the Equal Status Act from the Complainant's non-receipt of the Respondent's Form ES.2.

THE RESPONDENT'S APPLICATION FOR A POSTPONEMENT

The WRC wrote to the Secretary of the Respondent on 6 November 2018 advising that a complaint had been received by the WRC on behalf of the Complainant (the "Complaint"). The Respondent's solicitors replied by letter dated 28 November 2018 requesting that the WRC refrain from issuing a hearing date and/ or adjudicating upon the Complaint prior to the determination of related proceedings traversing the same subject matter as the Complaint which are currently before the High Court.

LEGAL ARGUMENTS TO BE CANVASSED BY THE RESPONDENT

The Respondent denies the Complainant's allegation made herein that the refusal of his application for a learner permit amounts to discrimination on the ground of race under the Equal Status Act and does not accept that it has acted in any way in breach of the Equal Status Act as alleged, or at all. The Respondent is committed to ensuring equal treatment for all of its service-users.

Without prejudice to the foregoing and, in particular, the State's position that the most appropriate and efficient manner in which to proceed is to postpone the hearing of the within Complaint pending the determination of the High Court Proceedings which traverse the same subject matter, the Respondent relies on the following core arguments outlined below in support of its defence herein.

(a)    The Complainant, in the first instance, has failed to establish a prima fade case as required under the Equal Status Act.

(b)    Further, or in the alternative as an asylum seeker, the Complainant is not “normally resident" in the State.

(c)     Further, or in the alternative, the actions of the Respondent as they relate to the Complainant are required by legislative enactment and are accordingly not prohibited under the Equal Status Act.

(d)    Further, or in the alternative, the Respondent's requirement for evidence of residency entitlement constitutes a provision in accordance with an enactment which arises from his entry to or residence in the State.

(e)    Without prejudice to the foregoing, it is denied that discrimination on the grounds of race arises, whether as claimed or at all. The requirements of the law and, consequently, the Respondent's guidelines are requirements relating to residency entitlement, not as to race (as defined in the Equal Status Act). The requirements apply equally to all nationalities.

(f)      Without prejudice to the foregoing, should the WRC find that the Respondent has treated the Complainant less favourably than a comparator on discriminatory grounds (which is denied), on the basis of indirect discrimination, the Respondent submits that such differential treatment is objectively justified in accordance with the Equal Status Act.

Accordingly, it is contended that there is no basis to the Complaint made against the Respondent and the WRC should dismiss it in its entirety. Each of the foregoing grounds of opposition are addressed in turn below.

BURDEN OF PROOF

Under section 3(1) of the Equal Status Act, discrimination is defined as occurring "where a person is treated less favourably than another person is, has been or would be treated in a comparable situation" on one of the discriminatory grounds. 'the Complainant must therefore establish that he has been treated less favourably by the Respondent than another person in comparable circumstances on one or more of the discriminatory grounds in order to raise a prima facie case of discrimination.

The Complainant has failed to discharge the onus to establish a prima facie case. His Complaint concerns the requirement to submit evidence of residency entitlement in applications for driving licences which arises pursuant to regulation. The Complainant was treated no differently as compared with an applicant from any other country, including an Irish applicant or an applicant from outside the EU or EEA. All applicants are subject to the same requirement to provide to the Respondent satisfactory evidence of residency entitlement and this does not provide evidence of discrimination under the Equal Status Act.

It follows that the complainant had wholly failed to make out a prima fade case of discrimination and has instead conflated the need for evidence of residency with race discrimination, as the requirements related to his residence status, and not to his race. This is supported by 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") whichis implemented by the Equal Status Act, 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".

In Southern Healthboard v Mitchell (12001] ELR 2001, the Labour Court considered the requirements of a case of prima facie evidence as follows:

"The first requirement ... is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if those primary facts are established to the satisfaction of the Court and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment."

That the Complainant relies on the race ground of discrimination does permit him to by-pass the prima facie burden resting upon him in his claim.   For example, in Graham Anthony & CompanyLimited v Margetts (EDA 038) the Labour Court further commented on the potential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established and stated as follows:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Equal Status Act is not sufficient in itself to establish a claim for discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred”.

In Arturs Valpeters v Melbury Development Limited (EDA 0917) the Labour Court whilst examining the circumstances in which the probative burden operates held as follows:

“[T]he Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.   However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The Complainant has failed to discharge the evidential burden required of him and has failed to establish a prima facie case of discrimination and accordingly the Respondent submits that his complaint should be rejected in its entirety. It is only if this initial prima facie burden is discharged and the WRC is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent.

Without prejudice to the foregoing, in the event that the WRC concludes that the Complainant has met the prima facie threshold, (which is denied) the Respondent can readily discharge any onus transferred to it to show that the occurrence in question was not discriminatory for the reasons set out below.

Without prejudice to anything hereinbefore or hereinafter submitted, the Complainant in the present case is not “normally resident” within the State in circumstances where he 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 section 15 of that Act, or on whose behalf such an application under section 2(2) of the Act, is required to be given by or on behalf of the Minister, a permission allowing him or her to remain in the State for the sole purpose of the examination of his or her application, including any appeal to the International Protection Appeal Tribunal in relation to the application. Such residence permission is of a permissive character only, until the determination of the application for international protection.

Without prejudice to the Respondent’s arguments that the instant case should be rejected on the basis of the Complainant’s failure to establish a prima facie case of discrimination and that he is not normally resident in the State, the Respondent submits that it has acted at all times in compliance with the requirements of the Equal Status Act. The manner in which the Complainant’s application was processed arose from the legal requirements imposed on the Respondent by virtue of the Regulations.

Section 14(1) (a) of the Equal Status Act provides that nothing in the Equal Status Act shall be construed as prohibiting “the taking of any action that is required by or under – (i) any enactment or order of court”.   The Respondent, consistent with this provision is required to ensure that evidence of applicants’ normal residence is provided in applications for driving licences. The Complainant has chosen to make a claim under the Equal Status Act, rather than by way of judicial review of the Respondent’s refusal of his application. What is clear from the terms of section 14(i)(a) is that complainants may not avail of the Equal Status Act for the purpose of impugning a statutory regime as one might, for example, in a constitutional challenge. As outlined by Stephen Bonnlander, Equality Officer in the case of O’Donoghue v Clare County Council (DEC-S2018-002) matters falling within the scope of this section of the Equal Status Act are “exempt from investigation by the Commission”.   Accordingly, section 14(1) provides a complete defence to any allegation that the requirement to provide evidence of normal residence is discriminatory, as the requirement arises under statute ie an “enactment” in accordance with Section 14(1) and is, as such, exempt from the application of the Equal Status Act.

The requirement for evidence of normal residence by using the imperative “shall” is a mandatory one and arises under legislative enactment. For the Respondent to have offered special treatment to the Complainant for having accepted his proffered evidence of residency entitlement would not only have undermined the integrity of the system but would have been ultra vires the powers conferred on the Respondent by statute.   The Respondent, as a public body, is obliged to ensure that a consistent approach is maintained by it in all applications for driving licences.

The provisions of section 14(1) (a) of the Equal Status Act were considered by an Equality Officer in A Complainant -v- Department of Social Protection (DEC-S2011-053) and latterly by O’Malley J in the High Court Case of G v The Department of Social Protection [2015] IEHC 419. The case concerned a disability discrimination claim under the Equal Status Act by an Irish woman who had been refused a payment equivalent to maternity benefit having had a child by means of a surrogacy arrangement in the USA. Although the High Court found that a prima facie case of disability discrimination had been made by the woman (as she could not sustain a pregnancy having had a hysterectomy), O’Malley J stated that the Equal Status Act could not override the terms of another statutory scheme – in that case, the Department of Social Protection’s statutory scheme for maternity benefit and adoptive benefit.

The comments of Tara Coogan, Equality Officer at first instance are apposite to the Complaint and were not disturbed by the later decision of O’Malley J:

“I find that almost all legislation addressed to the regulation of society resorts to some form of classification and such can be used as a classification of inclusion or exclusion for various legislative purposes. There is nothing, in accordance with section 14(1) of these Acts that entitles this Tribunal to find such classification as invidious, unfair or discriminatory. In deciding, as a matter of policy, to establish a special scheme for Maternity and Adoptive Leave, the Oireachtas necessarily had to define the scope and limits of its application. I am satisfied that the definitions currently contained in the statutes do not recognise the situation that the Complainant finds herself in and in such circumstances, the Respondent had no option but to turn down her application”.

As pointed out by O’Malley J in the High Court, it is not possible to maintain a claim of unlawful discrimination under the Equal Status Act where this requires a finding that another “enactment” discriminates unlawfully.

“Since both are Acts of the Oireachtas, embodying policy choices made by the legislature it is not open to a court to make a finding of unlawfulness in one on the same basis of the policy of the other ….. [T]hat raises the problem of whether the Equal Status Act can be relied upon in this fashion, to find that there is discrimination contrary to that Act embodied in another Act. In my view, it cannot, whether by this court, or by the Equality Tribunal acting as the body primarily charged with dealing with complaints under the Equal Status Act”.

The Respondent’s actions are in relation to a non-national and in accordance with a provision or condition made by or under any enactment and arise from the Complainant’s residence in the State

The actions of the Respondent relating to the Complainant were at all times in accordance with the provisions of the Equal Status Act.   Without prejudice to any of the arguments canvassed above the Respondent submits further and/or in the alternative that its treatment of the Complainant is lawful in circumstances where, in accordance with section 14(1)(aa)(II) of the Equal Status Act, its actions are in relation to a non-national and are 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.

Section 14(1)(aa)(II) of the Equal Status Act provides that nothing in the Equal Status Act 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 his or her entry to or residence in the State”.

This reflects the inclusion in Article 3(2) of Council Directive 2000/43/EC of 29th 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 Act, 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”.

As Walsh, Equal Status Acts 2000-2011 (Blackhall, 2012), 64 observes:

“While the exact parameters of this section have yet to be tested in case law, it appears to grant some discretion to public authorities to discriminate against migrants and asylum seekers, but only on the basis of nationality”.

Section 14(3) of the Equal Status Act 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”.   In the aftermath of the Supreme Court decision in N.H.V. v The Minister for Justice and Equality & Ors [2018] 1 IR 246, the State opted into Directive 2013/33/EU of 26th June 2013 (“the Reception Conditions Directive (recast)”). The State is entitled to treat applicants for asylum less favourable than its own citizens under Article 17(5) of the Reception Conditions Directive (recast).   This reflects the principle that the capacity of the State to regulate or restrict the rights of non-citizens is generally greater where the non-citizen is present for reasons that are fleeting, accidental, temporary or conditional.

As outlined above, the Respondent requires evidence of entitlement to residency in all applications for driving licences. The Respondent, being a public authority, lawfully applied the State’s requirements (set out in the Guidance Notes) to the Complainant, who is a non-national and its actions are therefore in accordance with the provisions or conditions made by or under the Regulations.

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”.

For the purposes of section 14(1)(aa)(II) the requirements must also arise from the Complainant’s “entry to or residence in” the state. This requirement is clearly satisfied in the instant case. The requirements are for evidence of entitlement to residency. Proof of residency entitlement is required for all applicants for driving licences.   The purpose, and indeed effect, of the documentary requirement is to verify evidence of an applicant’s entitlement to reside in the State and are not concerned with race”.

THE RESPONDENT’S ACTIONS ARE OBJECTIVELY JUSTIFIED

Without prejudice to the arguments raised above, the Respondent submits that even if it is accepted that discrimination has occurred in relation to the Complainant, (which, for the avoidance of doubt, the Respondent does not accept) such differential treatment amounts to indirect discrimination only and can be objectively justified. Proof of a normal residence applies to all applicants for driving licences and therefore does not directly discriminate against the Complainant on the grounds of his race contrary to section 3(2)(h) of the Equal Status Act.

Section 3(1)(c) of the Equal Status Act provides that discrimination shall 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 three requirements of objective justification have been set out by the Court of Justice of the European Union in the seminal case Bilka Kaufhaus Gmbh v Weber von Hartz [1986 E.C.R. 1607] (C-170/84) have been adopted by the WRC in cases under the Equal Status Act as follows:

1.       The aim of the measure is legitimate.

2.       The means of achieving that aim are appropriate, and

3.       The means of achieving that aim are necessary.

It is important to state that, from January 2013, following the requirements of Commission Directive 2011/94/EU which was transposed into Irish Law by the Road Traffic (Licencing of Drivers) (Amendment) Regulations 2012, SI 330/2012, and in order to facilitate free movement within the EU by those entitled to exercise such rights, a new plastic card driving licence was introduced across the EU. This plastic card driving licence was introduced because inter alia, it was safer than the previous forms of licence which had existed in that it had high level security features making theft and fraud of the licence less likely and because it would be recognisable as a standard format driving licence throughout the EU Member States. The EU therefore has a common licencing system so that an Irish driving licence can be used in every EU country and, equally, other EU driving licences are valid in Ireland. As stated, the plastic card driving licence is standardised across all EU member states.

In accordance with the principle of mutual recognition of driving licences which underlies the Directive, the other Member States of the EU are not entitled to go behind a licence issued by another member state and investigate whether the conditions for issue laid down by the Directive have been met. The possession of a driving licence issued by one member state has to be regarded as constituting proof that on the day on which that licence was issued, its holder satisfied those conditions. Therefore, the Respondent has a very important responsibility to ensure 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.

The Respondent 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, 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 residence in another Member State of the EU. In the context of asylum seekers, there is a particular difficulty with substantiating identity.

d)      The Respondent has an important 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. Indeed, if Ireland failed to meet its obligations under the Directive, a licence could 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, for example.   Section 97A of the Road Traffic Act 1998 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 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 Respondent’s requirements 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.

In accordance with the second limb of the test of objective justification, the Respondent 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” requires that the measure is suitable for achieving the aim in question and that the provision in fact advances the aim.   For the avoidance of doubt, not all employment requires an employee to have a driving licence as such there can be no interference with a right to work.

A provision will be “necessary” where there is no alternative, less discriminatory ways of advancing a respondent’s aim. In this regard, the Labour Court in the case of National University of Ireland, Maynooth v Buckley [2011] ELR 324 stated that “[t]his would normally require the respondent to establish that alternative means of achieving the objective were considered and rejected for cogent reasons”.

The list of documents in the Guidance Notes which are acceptable as evidence of residency entitlement have been carefully considered and compiled to reflect the need for the Respondent to act at all times in accordance with its obligations under Irish and European Union law.

Without prejudice the submission made above already such that the Applicant, as an asylum seeker, does not have his normal residence in the State, there is, in any event, a clear distinction between the ability to verify and the reliability of the documents listed by the Respondent in the Guidance Notes, and those documents that were appended to the Complainant’s application. Under the International Protection Act 2015, an asylum seeker is given permission to remain in the State while his/her 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 he/she must stay until his/her application for international protection is being processed. Under Section 17(3) of the International Protection Act 2015, a temporary residence certificate remains the property of the Minister and must be surrendered on request from the Minister. Whereas such documents as the Irish residence permit or Irish certificate of naturalisation are only obtained following an exacting process, the Complainant’s Temporary Residence Certificate is subject to an uncertain asylum process and must be surrendered upon request by the Minister for Justice.

Similarly, the Self-Employment Permission which was appended to the Complainant’s application (and which has presumably been replaced by 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.

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 Respondent to ensure the requirement of “normal residence” is satisfied are proportionate to the aims pursued.

The Respondent is fortified in its position by the approach adopted by its English counterpart in relation to evidence of residency entitlement which mirrors the approach adopted in this jurisdiction. The Respondent has adopted the same approach in relation to the documentary requirements regarding normal residence since 2013 when it assumed its driving licence function.

Conclusion.

It is submitted on behalf of the Respondent that the Complainant’s complaint should be rejected in its entirety.

Before going into findings and reaching any conclusion on this complaint I would like to comment on some of the arguments presented by both the Complainant and Respondent which, personally I have found very complex.

The Complainant is a Pakistani national who has lived in Ireland since June 2015. Upon arrival in Ireland, he sought asylum and he remains in the international protection system. He is married to an EU national and lives in Kildare, County Kildare.

Prior to any individual receiving a learner permit to drive they have to pass a “theory test” – the complainant passed his theory test on 7th April 2018 and then proceeded to apply for his learner permit. On 12th April he applied for the learner permit at the centre in Naas, Co. Kildare, during this process he had his picture taken and paid the appropriate fee, €35.00. The receipt issued contained a Driver Number. The issued receipt also stated that the documents outlined would be retained. The outlined document was stated to be an Irish Certificate of Naturalisation. In order to be eligible for a learner permit an applicant must be normally resident in the State. In support of his application the Complainant provided various forms of identification, including his Public Services Card, his Pakistani passport, his temporary residence certificate and his self-employment permit (which included his address). The Complainant left the centre with the expectation that he would receive a learner permit within 5 – 7 days.

Following his application there was an exchange of correspondence and the Complainant’s application was rejected on 10th July 2018 on the basis that he had failed to provide valid proof of residency.

In its ES2, replying to this notification, the Respondent has relied on the Road Traffic (Licensing of Drivers) Regulations 2006, (the 2006 Regulations”) and the Guidance notes for the completion of your Learner Permit Application Form {"The Guidance Notes") on the documents which are acceptable as evidence of "normal residence". It has expressed the view that persons who are allowed to reside in the State solely for the purpose of seeking international protection "are not "resident for the purposes of the Regulations".

The 2006 Regulations states; “normal residence” means the place where a person usually lives, that is for 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………….

In the instant case there are no occupational ties. In relation to personal ties there is a requirement to show close links between that person and the place where he or she is living. In this case the Complainant is married to an EU national. If a man living with his wife is not a personal tie, then I doubt anything is. The link between that person and the place where he is living is his wife.

The representative of the Complainant emphasises that while Regulation 20 (1) requires an applicant to have his or her normal residence in the State it does not stipulate the particular forms of proof or documentation which must be furnished by an applicant for this purpose. Such requirements are not specifically enshrined in the 2006 Regulations. For this reason, section 14 of the Equal Status Act provides no defence to the Respondents for the purpose of this claim.

On this subject the Complainant has cited Mohamed v. Hammersmith and Fulham LBC [2002]1 AC 547 in which Lord Slynn, for the House of Lords concluded:

It is clear that words like "ordinary residence" and "normal residence" may take their precise meaning from the context of the legislation in which they appear but it seems to me that the prima facie meaning of normal residence is a place where at the relevant time the person in fact resides. That therefore is the question to be asked and it is not appropriate to consider whether in a general or abstract sense such a place would be considered an ordinary or normal residence. So long as that place where he eats or sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is for the relevant time the place where he normally resides. If a person, having no other accommodation, takes his few belongings and moves into a barn for a period to work on a farm that is where during that period he is normally residence, however much he might prefer some more permanent or better accommodation. In a sense it is "shelter' but it is also where he resides ....

The Representative for the Respondent made many points in relation to Driving Licenses, two of these points are as follows:

“In addition, 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 residence in another Member State of the EU. In the context of asylum seekers, there is a particular difficulty with substantiating identity”.

In September 2016 the Federal Administrative Court in Germany (BVerwG 3C 16.15, ECLI: DE: Federal Administrative Court: 2016: 080916U3C16.15.0) para. 15 of the judgement reads:

“The proof requirement does not have any further purpose. In particular, the driving license does not have a passport function. The driver’s licence serves as proof that the person named in the driver’s license by means of personal details and photographs has a driving license for the vehicle class (s) ………. The fact that the driver’s license is also used and accepted as proof of identity in legal transactions does not change its intended purpose of proving the driving license………”.

The second point made by the Respondent that I would like to address is:

“In accordance with the principle of mutual recognition of driving licences which underlies the Directive, the other Member States of the EU are not entitled to go behind a licence issued by another member state and investigate whether the conditions for issue laid down by the Directive have been met. The possession of a driving licence issued by one member state has to be regarded as constituting proof that on the day on which that licence was issued, its holder satisfied those conditions. Therefore, the Respondent has a very important responsibility to ensure 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”.

The new plastic driving licence introduced across the EU, Ireland introduced this new “EU” type licence in 2013, is a standard format EU licence that would be recognised throughout the EU. The EU therefore has a common licensing system, an Irish driving licence can be used in every EU country and, equally, other EU driving licences are valid in Ireland. As stated, the plastic card driving licence is standardised across all EU member states. What does not appear to be standard is the process for applying for such a licence. In the instant case the application was rejected due to the failure of the Complainant to prove “normal residence”.

Direct discrimination is when a person is treated less favourably than another person in the same situation or circumstances under any of the nine grounds covered in the Equal Status Acts. With the exception of age discrimination (relating to compulsory retirement clauses in particular), direct discrimination cannot be permitted on the grounds of objective justification. Thus, where the complainant can establish a prima facie direct discrimination case, the respondent cannot claim that direct discrimination is objectively justified.

Asylum seeker status is not one of the protected grounds under the Equal Status Acts. The complainant was not the victim of direct discrimination.

Indirect discrimination happens where a person or group of people are treated less favourably as a result of requirements that they might find hard to satisfy; as occurs in this case wherein asylum seekers cannot apply for drivers’ licenses because the identification documents required by the Respondent preclude asylum seekers from applying for a driver’s licence.

Article 2(1)(b) of Directive 2006/54/EC provides that an indirectly discriminatory PCP (provision, criterion or practice) is unlawful unless: -

“[T]hat provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary”.

The Complainant in this instant case has suffered indirect discrimination by being asked to produce documentation that it was impossible for him to obtain. The argument presented by the Respondent in relation to objective justification is weak, the Complainant has proved his identity beyond any degree of doubt. I therefore find in favour of the Complainant.

Under section 27 (1)(b) of the Act I can “order that a person or persons specified in the order take a course of action which is so specified”.

The Respondent is now ordered to process the application for a learner permit submitted by the Complainant on 12th April 2018.

For the effect of indirect discrimination, I order the Respondent to pay compensation to the Complainant of €2,500, such sum should be paid within 42 days from the date of this decision.

As outlined above.

Equal Status; Asylum Seeker.