Complainant

Respondent

Anonymised Parties

An Asylum Seeker

A Statutory Body

Representatives

Stephen Collins, Irish Human Rights and Equality Commission

Shelley Horan, BL instructed by McCann Fitzgerald Solicitors .

Act

Complaint Reference No.

Date of Receipt

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

CA-00027350-001

28/03/2019

This case was presented by an Indian National who is currently an Asylum seeker resident in Direct Provision in Ireland. The Complainant obtained a right to work in accordance with SI 230/2018, European Community (Reception Conditions) Regulations 2018 which implemented Directive 2013/33/EU 2013, laying down standards for the reception of applicants for internal protection (Recast)

The Complainant set about applying for a Driver Learner Permit and had completed two steps of the process when her application was refused on insufficient evidence of residence on 31 October 2018. The amended claim before the WRC submits that the complainant has been discriminated against on grounds of race.

The Respondent is a Statutory Body charged with overall responsibility for road safety. The Respondent has confirmed that the application made by the complainant failed. The Respondent is defending the complaint and has submitted that the reasons governing the refusal to process the application for a Learner permit were totally outside any realm of discrimination.

Preliminary Issue: On 9 April 2019 the Respondent sought a postponement of the case on the basis that a similar case was before the WRC awaiting adjudication. The Respondent predicted that it would give rise to similar legal arguments. The Respondent sought a deferral until the determination in the earlier case had come through in the interest of costs, times and resources.

This communication was copied to the complainant and the complainant opposed any request for deferral on the basis that the complainant was a stranger to the earlier case and the complainant believed that she was being actively obstructed from the labour market by being denied a Learner Permit.

The case was set for hearing on September 4,2019 and both parties made written submissions shortly before the hearing. Further information was required from both parties and the last documentation was received in mid-November 2019.

On the morning of the hearing, the Respondent agreed to the amendment on the ES1 form to include the ground of race. The complainant had submitted the ES1 with reference to discrimination on civil and family grounds. The case proceeded as a complaint on the sole ground of race.

The Respondent then raised a Preliminary issue in seeking a postponement of the case pending a hearing in the High Court before Justice Noonan scheduled for 26 October 2019. The Respondent is one of several parties in proceedings of Judicial Review. This case was expected some throw some light on “temporary residence “/ legal expectations of “normally resident”. An outcome of that case was expected to take a short time 3-6 months. One of the reliefs sought in the High Court is an order of certiorari quashing the States requirements that applicants for driving licences and renewals of driving licences submit one of a list of documents to prove “residency entitlement “

The Complainant opposed the request and submitted that the HC case referred to a Judicial Review and not racial discrimination. As such the case should proceed.

I gave some thought to both parties stated positions. I refused the request for postponement on the following grounds.

1.       I was mindful that the Respondent had already demonstrated a supportive gesture by consenting to the amendment of the complainant’s ground of complaint.

2.       However, I could not support the request for a postponement of the case because the complaint before me is a stand-alone complaint deserving of a decision.

3.       I am bound by decisions of the High Court

4.       The instant case was first lodged on 28 March 2019 and is a claim of discrimination. It falls within my remit to investigate and decide in the case.

5.       The Complainant is not party to the complaint before the High Court.

6.       I am mindful of what the superior courts have held in cases of Parallel proceedings (Culkin v Sligo Co Council)

The case proceeded, and both parties were represented at hearing and the Respondent was accompanied by witnesses. the complainant was the sole witness in her case.

I required some further documentation post hearing. Both parties made supplementary submissions on this information.

Neither party has submitted any details of an outcome from the High Court case listed for hearing in October 2019.

The Complainant, an asylum seeker of Indian nationality resides in Direct Provision in rural Ireland. She entered the Irish State in 2015.

On 28 March 2019, the complainant lodged a complaint of discrimination on race grounds in the provision of goods/services against the respondent statutory body. She submitted that during her application for a learner Driver permit, she had been refused the permit for lack of valid evidence of residency entitlement.

The Complainant is a single mother to a now year-old son.

In providing an outline of the complainant’s case, her representative, Mr Collins told the hearing that the complainant had applied for asylum in Ireland in 2015. She has maintained a continuous residence in the state from that time.

He explained that initially in the circumstances of the case, the complainant had not been represented. She had issued several ES1s and had not specifically ticked the “race “box on the complaint form, however, it was referred to in the body of her complaint. This was amended on the WRC complaint form in March 2019 and her complaint is discrimination on grounds of race. This was accepted by the Respondent. The other case live on that day was withdrawn.

The Complainant was then issued with a Temporary Residence Certificate (TRC)) under the Refugee Act. This was updated under the International Protection Act, 2015 and permits her to remain in the state pending determination of her application for international protection.

Following NHV V Minister for Justice and Equality and OR’s [2017] IESC 35, the complainant applied for a learner driver permit to facilitate her access to the labour market. She is currently a resident of a rural remote direct provision site, 49 kms from the nearest city. The complainant receives a weekly allowance of €69.60 to cover her and her child. Bus and rail fares are expensive.

The Complainants representative submitted that the complainant needs to be able to drive to access more employment opportunities, childcare and urban centres.

The Complainant passed her Driver theory test in August 2018. She passed her eye test in early October 2018.

In attending her local Driving Licence Centre in October 2018, she was asked to produce a student card or evidence of her entitlement to reside in the state. On production of the TRC, the complainant was informed that this was not acceptable and a student card or a Stamp 4 were required.

The Complainant declared that she had work permission but could not satisfy the request for a stamp 4 or EU passport and left.

She was formally notified of a refusal in her application by letter dated 31 October 2018 due to “missing documents: valid evidence of residency entitlement “

An ES1 was submitted to the respondent dated 8 November 2018 and a response issued on 4 December 2018. The complaint comes before the WRC as the complainant was dissatisfied with the tabled ES2 response.

This is an extract from ES1

“As I am resident of X facility, have permission to work but find it hard to continue the work because travelling in public is very very expensive, and to whom I need to ask to help me every time I get to work.

So, I tried to get my Driving Licence, but they refused by saying that I am an asylum seeker, I have no rights. But if we have permission to get work why can’t I get licence to help my own “

The ES2 response from the Respondent dated 4 December 2018:

“The staff member issued an application rejection notice to the complainant advising her that her application was not accepted as there was documentation missing from it, that is valid evidence of residency entitlement “

“The requirement of X for applicants for driving licences or learner permits to provide evidence of an entitlement to residency is not discriminatory. This is a uniform requirement which requires to be satisfied by all applicants for a driving licence or learner permit, irrespective of civil status or gender.”

The Complainant now works part time as a House Keeper in Dublin. She undertakes a protracted rail and bus route to access this work Wednesday to Sunday weekly and leaves her baby with her friends in Dublin. The Complainant has been unsuccessful in trying to secure a transfer in her Direct Provision base and cannot afford private accommodation.

The Complainant submitted that she had been discriminated against under Section 3(2) (h) of the Act “that they are of a different race, colour, nationality or ethnic or national origins (the grounds of race)”.

The Complainant outlined the definition of indirect discrimination in accordance with Section 3 (1) (c)

The Complainant representative drew the attention of the hearing to the Road Traffic (Licencing of Drivers) Regulations 2006 as the requirements for applying for a learner driver permit.

He submitted that Regulation 20 sets out the procedure for applying for a Provisional Licence. Reg 20(1) provides that a person shall have “his or her normal residence in the State “

Normal Residence is defined in Section 2(1) as “the place where a person usually lives, that is for at least 185 days in each year, because of personal and occupational ties “

The Complainant referred to documents to accompany a provisional licence

1 Licences held or previously held

2 Two passport photos

3 Evidence of identity

4 Birth Certificate /passport/registration certificate

He went on to submit that no mention is made in the regulations of “evidence of residency entitlement “such as stamp 4.

He added that Regulation 54 sets out identity documents, one of which an applicant for a provisional driver licence must produce for examination “if requested by the licencing authority “

1 Student Identity Card

2 Marriage Cert

3 Free Travel Card.

It does not include a stamp 4 card or EU Passport.

The Road Traffic Regulations 2006 (Licencing of drivers) does not mention “stamp 4 or Eu Passport “

The Complainant argued that the October 2018 Guidance Notes for completion of a Learner Permit Application Form are not predicated on any power or legal requirement. He contended that they are not covered by Section 14 of the Act and they discriminate on grounds of race.

The Guidelines state that “to make an application for a learner permit, you must be able to show that you are a national of the EU, EEA or Switzerland or have leave to remain in Ireland.

The Guidelines differentiate between nationalities not set out or required by the 2006 Regulations.

The Complainants representative went on to point to several observed inconsistencies between the guidelines and the regulations

Guidelines

PSC card acceptable ID, where place of birth or nationality is with EU /EEA or Switzerland or when presented with a GNIB card.

GNIB and IRP cards “must be presented with a current passport valid for international use or a PSC.

(Not listed in Regs)

The Regulations do not specify that the passport should be Irish or EU/EEA

The Complainant has been granted permission to enter the state of Ireland and to remain here pending the determination of her application for asylum / international protection.

Section 17 (1) of the International Protection Act ,2015 provides:

The Minister shall give or cause to be given to an applicant a temporary residence certificate

The TRC is evidence that the complainant has complied with registration requirements imposed by Section 9 of the Immigration Act, 2004. the Complainant contends that the TRC is enough to satisfy the requirement to produce a registration certificate under Section 12(2) (b) of the Immigration Act, 2004.

The Complainant submitted that the complainant was bound by very strict rules of notification of her whereabouts at all times under Section 16 of the 2015 Act with penalties of fines or custodial sentence, or both in the event of proven non-compliance. She cannot leave the state without the Ministers permission.

The Complainant contended that the TRC is evidence that the holder is more closely monitored by state authorities than either Stamp 4 or EU passports holders. The Complainant as holder of TRC has complied with the requirement to register under Section 2 of the Immigration Act, the respondent has refused to accept it and this amounts to less favourable treatment on the ground of race.

The Complainant Representative submitted that the complainant is lawfully present in the state for the purposes of the International Protection Act and the Immigration Act.

Direct Discrimination:

The Complainant contended that the Respondents refusal to accept the TRC card coupled with additional requirements they impose on non-EU/EEA nationals amounts to direct discrimination on grounds of race. There is a disparity between the Road Traffic Regulations, which do not discriminate on birth place and the Guidelines which discriminate and are unnecessarily innovative.

Regulation 20 sets out documents required for all application for a learner driver permit.

1.Driver Theory Test

2 An eyesight test

3 Passport Photos

4 Any Driving licence they held in the last 5 to 10 years. In the absence of same, birth cert, passport or registration certificate

Part 2 of the Guidelines impose different requirements for people born outside the EU/EEA

…. You must be able to show that you are a national of EU/EEA or Switzerland or have leave to remain in Ireland

Leave to remain means Stamp 4 immigration permission at a minimum. The Regulations require the complainant to prove normal residence not leave to remain.

The Complainant has proved that she is normally resident in the State, but the Respondent has refused to accept her proof citing requirements imposed in terms of nationality and birthplace. This constitutes direct discrimination.

Indirect Discrimination:

The Complainants Representative submitted that the complainant belongs to a category of people, asylum seekers, who share a common characteristic, namely having sought international protection, which might give rise to discrimination, specifically discrimination on grounds of race. She is a non-EEA/EU national.

The Respondent has obliged the complainant to comply with a provision with which she is unable to comply. The Complainants inability to provide either a GNIB card or an EU/EEA passport is inherent in her status as an applicant for international protection and the Respondent has not taken account of the situation of persons in her category and has refused to accept the TRC.

There are substantially more people outside the complainant’s category than within it who can comply with the condition. All Irish and Eu/EEA citizens can comply with it. Refugees, persons with subsidiary protection and persons with work permits can comply with it. Students can comply with the condition.

This condition cannot be justified as reasonable in all the circumstances. The TRC is evidence of residency entitlement and the requirement to provide a different type of residency entitlement is unreasonable.

The Complainant submits that she has been indirectly discriminated against on grounds of race.

Evidence of the Complainant:

The Complainant confirmed that she lived in Direct Provision as an Asylum Seeker with her young baby. She wanted a good future for her baby, not to be in the one place forever. She was encouraged by the Supreme Court Decision which established her right to work in 2017.

The complainant submitted that it was hard to find work in her immediate surrounds as it was a rural remote setting and did not pay well. She needed a car to help her to maintain a job and have a good home life. At present, she works as a Housekeeper in Dublin and receives a good wage and she doesn’t require professional child care. She explained a lengthy commute 5 days a week with early starts. She had experienced a reduction in her Direct Provision Allowance in addition to a reduction in support for child supplies.

Her current employers have offered to buy her a car. They understand her situation and are ready to help. She had tried to transfer her Direct Provision accommodation to Dublin, but this had not been approved by the Dept of Justice.

She explained the pressures she faced in trying to get work nearer home. She relied on the kindness and flexibility of her support group.

In August 2018, she completed her Theory Test and later completed the Eye Test in preparation for her application for a learner Driving permit. She booked an appointment on line in the Dublin area as she was visiting the area. She attended the Respondent Centre, exhibited her TRC and her permission to work. The Complainant submitted that she was asked for a Stamp 4 or GNIB card. Her submitted documents were not accepted. She understood that she was to come back when she had obtained a Stamp 4. She exhibited her Public services card, but she was informed that she had not demonstrated an entitlement to residency. She left the office and sought advice from an Immigration Support Agency.

She was very disappointed and fearful of the implications of this decision as she was struggling to manage transport for her and her baby. In addition, she feared not having access to help if her baby became sick and needed a doctor.

During cross examination, the complainant confirmed that she had not applied for work in her surrounding county. She knew of a co resident and Indian national who was seeking asylum who had a licence.

The Complainant confirmed that she was a qualified driver in her home country of India. She submitted a copy of this licence at hearing on request. A printed copy followed later. This licence was issued on 8 July 2013 in India and was deemed valid until 7 July 2033. It was titled Indian Union Driving Licence. The complainant explained that India worked on a sole licence without a preliminary stage. The Complainant submitted had not presented this in her earlier application for a Learner permit in Ireland.

The Respondent made a brief comment on the unexpected presence of an Indian Full Driving Licence in the case. The Adjudicator explored whether this licence, being of international origin could provide the complainant with a currency to drive in Ireland as a Visitor? the Respondent was unsure whether India was a country recognised under the “recognised country arrangement “and undertook to verify these details.

The Respondent made a further submission post hearing on this topic and clarified that the International convention on Road Traffic in Geneva, 19 September 1949, which includes Ireland and India may convey the benefit of International Driving permission. Article 24 below:

Each Contracting State shall allow any driver admitted to its territory who fulfils the

conditions which are set out in annex 8 and who holds a valid driving permit issued

to him, after he has given proof of his competence, by the competent authority of

another Contracting State or sub-division thereof, or by an association duly

empowered by such authority, to drive on its roads without further examination

motor vehicles of the category or categories defined in annexes 9 and 10 for which the

permit has been issued…

A Visitor is described in Rule 4 of the Mechanically Propelled Vehicles (International Circulation) Order, 1992 as “A Resident outside the state making a temporary stay in the state “

Rule 11 expand on a visitor driving licence granted to a persona ordinarily resident outside the state, without attributing a definition to “ordinarily resident “

The receiving country, in this case, Ireland, is not obliged to extend the benefit of the provisions of the Convention benefits to any driver who has remained within the jurisdiction for over a year. Therefore, in the instant case, the complainant, resident in the state since 2015, cannot now be recognised as a Visitor.

At the end of the hearing, I asked the complainant to furnish the rear side of TRC, Indian Licence, and any aspect of her application form for any aspect of the learner permit application.

The Complainant was permitted to make a brief submission on ADJ 8685, Complainant Respondent from May 2018. The Complainants Representative outlined that the due diligence adopted by Financial Institution scrutiny of a customers handling of her own account, whilst also guided by stringent statutory regulations permitted a certain flexibility in options in satisfying verification of identity. There were fall backs open and this was distinguished from the shorter measures adopted by the Respondent in seeking to establish identity. This was contested by the Respondent, who contended that the Money Laundering regulations were not at one with the facts of this case.

For my part, I noted that the complainant in that case was naturalised in 2015. I had no clarity whether this case had been appealed or not?

The Complainant went on to cite from a Government Press Release

2,700 permissions to access labour Market had been granted since June 2018

1,200 of whom were confirmed in employment and self-employment

2,011 of those granted permission to access the Labour Market were resident in Direct Provision Facilities.

The Statistics submitted confirmed a very high rate of refusal in asylum seeking /international protection applications.

The Respondent is a Statutory body established by statute in 2006, within whose remit responsibility for the issuance of driving licences falls. The key functions are to improve road safety by:

1 Developing and implementing information and education campaigns to increase awareness of road safety and to promote safe driving

2. Improving vehicle standards

3 Establishing and monitoring a standard for driver instruction

4 Overseeing the system of driver licensing and undertaking certain enforcement activities

5 working with stake holders on co ordinated responses

6 Accident and Road Safety research

7 Advising the Minister on Road Safety Policy

8 Producing road safety strategy documents and monitoring implementation.

Since January 2013, the Respondent has responsibility for driving licences in Ireland.

The Respondent confirmed that the complainant lodged an application for a learner river permit on 31 October 2018. This application was refused on the basis that the application failed to include satisfactory evidence of the complainant’s normal place of residence in the State. The Respondent denies that the refusal of the complainant’s application for a learner permit amounts to discrimination on the grounds of race and does not accept that the Respondent has acted in breach of the Equal Status Acts.

The Respondent made extensive reference to their obligations set out under the Road Traffic (Licensing of Drivers) Regulations 2006(SI 537/2006. These Regulations transpose the EU Driver Licensing Directive 2006/126/EC (Recast), which is concerned with the mutual recognition of driving licences within EU member states as part of the objective off the free movement of EU citizens. Article 2 of the Directive provides that driving licences issued by Member States shall be mutually recognised.

The Respondent is obliged to seek evidence of the complainant’s normal residence pursuant to Section 12 (1) of the Regulations.

1 Normal Residence in the State is defined in Regulation 3 as:

That is “the place where a person usually lives that is for 185 days in each year “

2 To have been studying in the state for at least 6 months prior to the date of the application

The Respondent introduced a Guidance Note for the completion of Learner Permit Application Form dated October 2016. the documents which the Respondent requires as evidence of residency entitlement are

1 Public Service card (if born in EU/EEA or Switzerland

2 Irish or UK (long form) birth cert or adoption cert.

3 Driving Licence or Learner Permit which shows place of birth as within EU/EEA/Switzerland

4.Certificate of Entry in the Irish Foreign Births Register

5. Irish Passport/card

7.       Current Passport/ national identity card for all EU /EEA/Switzerland

8.       Irish certificate of naturalisation or

9.       Current Certificate of registration (GNIB card) or Irish residence permit for non-EU / EEA or Swiss Citizens. These must be presented with a current passport valid for international use or a Public Services card.

The requirement for these documents’ grounds the application process for whether an applicant has satisfied the requirement to provide evidence of normal residence and are highlighted on the web site.

The Respondent had not maintained a copy of the complainant’s application and supporting documents as the application had been unsuccessful.

The Respondent submitted that the complainant has not established a prima facie case in accordance with the Burden of Proof in Section 38 A off the Act. As an Asylum Seeker, the Complainant cannot be regarded as “normally resident “in the state.

The Respondent sought tangible evidence of her residency this was not attributed to the complainants race .The Race Directive, implemented by the Equal Status Act , 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 applying the facts of Graham Anthony and Co ltd V Margetts EDA 038 and Val Peters v Millbury Development ltd EDA 0917 at the Labour Court ,the Respondent firstly argued that a complainant must do more than belong to a particular category protected under legislation, she must “ adduce other facts from which it may be inferred that a discriminatory act occurred .The Respondent in relying on the second case applied the burden of proof required in Section 85A of the Employment Equality Act , where the facts as established are of sufficient significance to raise a presumption of discrimination .

The Respondent submitted that as an Asylum Seeker, the complainant is not normally resident in the State. Instead, she has been granted a residence permission of permissive character for the sole purpose of an examination of her application for international protection.

The Respondent referred to a 2003 case of Gonescu V MJELR [2003]IR442 where Murray J discussed the status of failed asylum seekers who had sought residence or leave to remain as a separate and distinct category to those who have been granted “legitimate residence status “

“…. It seems to be quite clear that the foregoing restrictions highlight and confirm that persons who are allowed enter the State for the purposes of making an application for asylum fall into a category and never enjoy the status of residence as such who have been granted permission to enter and reside in the State as immigrants”

Stanley, Immigration and Citizenship Law, 2017 remarked that being allowed to reside in the state solely for seeking international protection do not enjoy the status of residents who have been granted permission to enter and reside as immigrants and are not to be construed as “settled migrants “

The Respondent went on to argue that Section 14 of the Act had application in this instance as the Respondents actions are required by legislative enactment and are accordingly not prohibited under the Equal Status Legislation .The Respondents requirement or evidence of residency entitlement constitutes a provision in accordance with an enactment which arises from her entry to or residence in the state .Section 14(1) provides a complete defence to any allegation that the requirement to provide evidence of normal residency is discriminatory as the requirement arises under statute and as such is exempt from the application of the Equal Status Acts. O Donoghue V Clare County Council Dec -S 2018-002

The Respondents guidelines are requirements relating to residency entitlement not specifically related to race. The requirement is universally applied to all nationalities.

The respondent submitted that if the Respondent is found to have treated the complainant less favourably than a comparator on discriminatory grounds, an act that is denied, based on indirect discrimination, the Respondent submitted that such differential treatment is objectively justified in accordance with the Equal Status Acts.

Section 14(3) of

the Equal Status Acts 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 EC Acts 1972 to 2003 or any act adopted by an institution of those communities.”

In the aftermath of NHV, the State opted into Directive 2013/33/EU. The State is entitling to treat applicants for asylum less favourably than its own citizens under Article 17(5). 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. A driving licence is not included in the context of “material protection provisions “that may be granted by the State to an Asylum seeker.

The Respondent submitted that the three requirements of objective justification exist in Bilka Kaufhaus Gmbh V Weber Von Hartz [1986] ECR 1607/C-170/84

The aim of the measure is legitimate, the means of achieving that aim are appropriate and that means of achieving that aim are necessary.

The Respondent was focused on pointing out that from January 2013, the requirements of Commission Directive 2011/94/EU transposed into Irish Law by the 2012 Regulations (SI 330/2012) to embrace of freedom of movement within the EU, the plastic card driving licence was introduced across the EU. This card had high level security features and fraud and theft were less likely in the standardised format.

The other member states of EU are not entitled to go behind a licence issued by another member state and investigate whether the conditions for issue set by the Directive have been met. The Respondent holds a very high level of responsibility to ensure that the integrity of the process of issuing and renewing driving licences is safeguarded by a robust verification process.

The Respondents submits that the requirement for evidence of residency entitlement pursues a series of legitimate aims

1 A Driving licence is privileged and recognised across EU. The law surrounding driving licences is fundamentally premised on the need to ensure road safety and prevent discretion. Security is an important consideration.

2 Requirement to show residency is an appropriate means to facilitate verification of compliance with normal residence condition. This is to prevent driving licence tourism as an Irish issued licence is mutually recognised across the EU.

3 The licence is also a form of identity validation process. The requirements prevent a licence being incorrectly used as proof of residence in Ireland in another member state of Eu

4 The Respondent has strict responsibilities under domestic and EC legislation to safeguard the process of driving licences. If Ireland failed to meet its obligations under the Directive, a licence could be granted to an illegal resident in Ireland who may then travel to the UK and be permitted to drive there

5 Driving Licences are used as formal identification for airlines.

The Respondent then addressed the test for objective justification. The Complainant has not satisfied the normal residence condition. The Respondent has referred to the Guidance Note list of documents acceptable as evidence of residency entitlement and reflect the Respondents always need to act with its obligations under Irish and EU law.

A TRC card is issued and permits an applicant to remain in the State while the application for asylum/ protection is examined. Accommodation is issued as a result and she must stay at that accommodation until her application is processed. The TRC remains the property of the Minister and must be surrendered on request. This is a fluid and uncertain process.

Article 7(5) of the Directive obliges member states when issuing licence “to apply due diligence to ensure that a person fulfils the requirements set out in para 1, normal residence in the territory of the member state. In this the Ireland follows the UK, which mirrors the approach adopted here.

Evidence of Mr A, Respondent Legal Unit

Mr A submitted that the Respondent overall aim rested on reducing accidents and collisions through the medium o education, licensing, legal standards and tachograph enforcement.

Licencing is informed by EU Directive and performed by a National body but does not carry an automatic entitlement. Instead an applicant is bound to meet several conditions, such as a Theory Test, Medical Standards and practical testing.

There is a mutual recognition of Driving licences within the EU, to enable the freedom of movement.

He confirmed that the Guidance Document for completion of Learner Permit Application form 2016 was an elaborate document. Residency Entitlement is listed in detail.

Mr A gave a background of the genesis of the mandatory plastic card licence which has been operable since January 2013, on foot of EU Directive 2006. The revised card enhanced security and was standardised across EU.

Mr A confirmed that Ireland had a special recognition with some Non-EU States such as Canada.

The TRC is not an identity card. Whereas provision of a licence indicates that the user has residency and the licence has a working function for travel, banking and even air lines accept it as validation.

Mr A confirmed that the Respondent provided a translation services facility or the Driver Theory Test. The Respondent has the facility to track applicants by their nationality.

During cross examination, Mr A confirmed that the Respondent was aware that the TRC was renewable, but it was not automatically renewed. It did not fulfil the requirements of residency. He denied discrimination against the complainant as the criteria of residency applied to all applicants.

There were 2,500 applications for learner permits annually. There are currently 250,000 licence permits in existence. 1 licence had been granted to an Asylum seeker in error as residency had been refused.

Mr A confirmed that there was no suggestion that the complainant had breached the terms of her TRC, but the complainant could leave the state. This created a defined risk for the respondent.

A learner Driver permit is a stepped process of 2 years, 2 years and 1 year. During this time, the applicant must be accompanied while driving.

The Respondent was not clear why the residency entitlement was not led out at the primary stages of the process, at the Theory Test stage.

It is not possible to transfer the Complainants Indian Licence to an Irish version. The Respondent was aware of a “parallel arrangement “which allowed for a 12-month facility to drive in Ireland on arrival from a non-EU country. They were unclear of just how many countries this related to.

I have considered all written and oral submissions in this case. I have had regard for the extensive documentation submitted by both parties. I have taken the time to read and consider the Respondent submitted jurisprudence and the legal framework in which decisions were made in this case. I have also considered the arguments and case law led by the Complainant.

I have decided, based on the sensitivities of the case to exercise my discretion and anonymise this decision.

While this is a complaint advanced on race grounds, I feel that it is relevant to mention that I have observed a lingering political interest back drop  to this case.

I have identified that the Complainant has sought to run what is in effect a Test case in the shadow of the landmark case of N V H v Minister for Justice and Equality and ores [2017] IESC 35, a case where a Myanmar national came to Ireland in 2008 and applied for refugee status the following day.

While living in Direct Provision in Monaghan, he was offered work there but refused by the Minister for Justice as it was precluded under Section 9 of the Refugee Act 1996. The complainant in the case challenged the interpretation of Section 9(4) at the High Court, which was dismissed, unaltered on appeal apart from a dissenting opinion from Hogan J

“he would have found the appellant, although a non-citizen, was entitled to rely on the unenumerated right to work protected by Article 40.3 of the Constitution”

In March 2016, Hogan J ruled that whilst the State had a very considerable latitude in this regard, the blanket ban on employment contained in S 9(4) was disproportionate to any legitimate State interest, and accordingly invalid

Para 118. In the present case the applicant has been waiting for over seven years for a proper and lawful adjudication of his asylum claim. If he indeed has a constitutional right to work and to earn a livelihood (albeit a right which is more qualified than that which would apply in the case of citizens), how much longer is he supposed to wait before he is granted permission to seek to take up some gainful occupation? It is one thing to wait for a fixed (if lengthy) period in a scheme of direct provision: it is quite another to wait for over seven years in circumstances where individual autonomy and self-respect is sapped and where the key constitutional objective of preserving the essential dignity of the individual is ultimately compromised by a State scheme which over a prolonged period of time leads to idleness, aimlessness, demoralisation and, ultimately, psychological difficulties and, doubtless in some instances, psychiatric disturbance.  

The applicant in that case was subsequently granted refugee status prior to the hearing at the Supreme Court. He was no longer an asylum seeker and was free to work. The Supreme Court hearing proceeded as the Court found that “there is a point of law of general importance importance arising here “which ought to be “heard and determined “.

On 30 May 2017, the Supreme Court, O Donnell, J, brought forward a preliminary observation that the current asylum process, without temporal limitation constituted a prohibition on the constitutional right to attempt to obtain employment, where freedom to work /seek employment for a “non-citizen” is an innate part of the human personality and an unenumerated right provided for in the Constitution.

At that point the Supreme Court invited the Legislature to review the observations made and to consider legislative changes. It set down a set time frame for the legislature to respond.

The Respondent has completed the chronology of what happened next. In the aftermath of N VH and Minister for Justice, Equality and ors [2018] I IR 246, the State opted into Directive 2013/33/EU, Reception Conditions Directive (recast)

EC (Receptions Conditions) Regulations 2018, SI 230/2018 became operative on 30 June 2018.

This is the legal preamble to the circumstances of this case. The Complainant has submitted that she was granted permission to enter the labour market on foot of these 2018 regulations. Section 11 of which outlines The Labour Market Access Permission which commences by a reading off a continued prohibition of automatic access to the labour market save by a direct Ministerial approval for a quantified period which is open to renewal.

Section 3(1) (h) provides that these persons are of a different race, colour, nationality, ethnic or national origin.

The amended claim on consents rests on a complaint of racial discrimination. The Complainant in the case is an acknowledged Indian citizen currently seeking Asylum/ International Protection in this state. She holds a Temporary Residence card (TRC) and has been approved for and has entered the Labour Market. She is awaiting her first Hearing to address her claim for International protection.

The Burden of proof for Discrimination rests firmly with the Complainant. In accordance with Section 38 A of the Act, she is obliged to raise facts from which discrimination can be safely inferred prior to the burden of proof shifting to the respondent. I accept the application of Mitchell in this regard. However, Margrett’s, was an employment equality case and not an Equal Status case.

Much has been made on the complainant’s behalf of the disparity between the rigours of the 2006 Driving Regulations and the “follow on “2006 Operational guidelines which accompany the application form for Learner Permits.

Much has also been made of the defence set out in Section 14 of the Act, which the Respondent submits precludes the progression of the complaint.

 Certain measures or activities not prohibited.

14

14.— (1) Nothing in this Act shall be construed as prohibiting—

(a) the taking of any action that is required by or under—

(I) any enactment or order of a court,

(ii) any act done, or measure adopted by the European Union, by the European Communities or institutions thereof or by bodies competent under the Treaties establishing the European Communities, or

(iii) any convention or other instrument imposing an international obligation on the State,

[ (aa) based on nationality —

(I) any action taken by a public authority in relation to a non-national —

(I) who, when the action was taken, was either outside the State or, for the purposes of the Immigration Act 2004 , unlawfully present in it, or

(II) 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,

or

(ii) any action taken by the Minister in relation to a non-national where the action arises from an action referred to in subparagraph (I),

or

(b) preferential treatment or the taking of positive measures which are bona fide intended to—

(I) promote equality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons, or

(ii) cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons F34 [ who do not have those special needs, or]

[ (c) the use of gender status or the collection, storage or use of gender-related information by insurance providers that is bona fide intended for any or all the following purposes:

(I) reserving and internal pricing;

(ii) reinsurance pricing;

(iii) marketing and advertising;

(iv) life and health underwriting.]

F32 [ (2) In subsection (1) (aa) —

‘ non-national ’ has the meaning given to it by the Immigration Act 1999 and includes a category of nonnationals;

‘public authority’ means —

  (a) a Minister of the Government,

  ( b ) an immigration officer appointed or deemed to have been appointed under section 3 of the Immigration Act 2004 ,

The Respondent has submitted that Section 14 provides a defence in the claim. I respectfully disagree. From my perusal of   the EU Directive of Council Directive 2000/43/EC on Equal treatment, Directive 2006/126/EC (Recast) Driving Licences, Directive 2013/33/EU (International Protection), the Road Traffic Regulations in Ireland and EC (reception conditions) Regulations 2018, I could not determine that the complainant was prohibited in progressing her case. The Supreme Court in NVH has strengthened my view here.

The Complainant managed to action her application for a learner permit in August 2018 by completing the Theory test. It is of note that the Driver Theory Test stage and the Eye Test stage, were completed by the complainant without being requested to submit evidence of residence. She had spent over €100 and established Driving Theory and Vision fitness by the time she presented in the Respondent offices seeking a Learner Permit in October 2018.

I found this to be confusing. Two important strands of the application process had been completed by the complainant, thus raising a certain legitimate expectation that she was on the correct course for securing a Learner Permit. This climate prevailed until her visit to the Driving licence centre in October 2018.

It is regrettable that neither party had retained a copy of the application form completed by the complainant. I could not verify whether she had confirmed possession of an International licence or not. I appreciate that the complainant believes that she may not have mentioned this at the application stage. However, the complainant carried the full Indian licence, issued to her hearing of this case and I could see that she was proud of her licence. It seemed unusual that she would have omitted to mention it.

I have taken some time to consider the Road Traffic (licensing of Drivers) Regulations 2006

Section 12 (1)

A person making an application for a driving licence shall have her normal residence in the State, contain the information requested and a medical declaration. The Complainants Indian Licence was recorded as having a tenure from July 2013 to July 2033.

The Respondent had no prior awareness of the possession of an international licence. I note that the question of whether a prior licence is in possession of the applicant is one of the questions posed at Part 1, Section 15 on the administrative form.

The action taken in this case surrounds the application for a Learner Permit. However, I cannot ignore the prior existence of a full driving licence issued from a Third Country. This prompted me to review the provisions of Directive 2006/126/EC on Driving Licences (20 December 2006, Recast), which set down Minimum Standards in conditions.

Article 11(6) provides

Where a Member State exchanges a driving, licence issued by a third country for a Community Model Driving Licence such exchange shall be recorded on the Community Model Driving licence as shall any subsequent renewal or replacement

This is based on surrendering a licence and suggests to me at least that a qualified facility of licence exchange is conceivable under EU law. The Respondent did not hold that view on the day of hearing and suggested that the only currency in possession of a third country licence amounted to the power to drive as a visitor in year one post arrival in this State. After such time, no further currency existed as India was not recognised as having special recognition with Ireland. I am mindful that the complainant arrived in this State in similar circumstances to the Burmese complainant in NVH, in being an early applicant for International Protection. There are no temporal limitations to this process which on my review seems enduring.

I noted that the Respondent clarified the role played by the Geneva Convention in recognising both Ireland and India post hearing.

The Racial Equality Directive 2000/43/353 provides Protection from Racial Discrimination.

In considering the facts of this case, I reviewed the CJEU case of an Albanian National, long term Resident in Italy who was denied Housing Benefit due to the exhaustion of funding for third country national in Servet Kamberaj V IPES QD (C -571-10). I did this to probe the Respondent argument that the Courts have differentiated over a considerable period in terms of rights of immigrants and asylum seekers in Ireland.

In response to the Preliminary Reference, the court replied that EU law precludes a National or Regional law which, when housing benefit funds are allocated, provides for different in treatment for third country nationals and Member State Nationals as housing benefit falls into the three fields of equal treatment social security, social assistance and social protection om on third country nationals, who are also long-term residents.

“ The European Council at its special meeting in Tampere on 15/16 October 1999 stated that the legal status of third country nationals should be approximated to that of Member State Nationals and that a person who has resided legally in a Member State for a period of time to be determined and who holds a long term residence permit should be granted in that Member State a set off uniform rights which are as near as possible to those enjoyed by citizens off the EU “

I appreciate that the complainant in this case has not at this time corresponded with Mr Kimbra “long term resident “status, however, this is a worthwhile analysis of Member State National and Third Country Nationals social benefits by the Court.

The law is far from settled in this regard as the deliberations of Hogan J and   O Donnelly in both arms of NVH considered access to the Labour Market and pointed to the interface with an unenumerated right. I appreciate that accessing the labour Market did not incorporate the means of travel, however, the EU Directive at Recital 23 provides the following consideration

“In order to promote the self sufficiency of applicants and to limit discrepancies between member states, it is essential to provide clear rules on the applicants access to the Labour Market “

Given that the Irish State has now declared an application process for access to the labour Market (with conditions) for those who seek International Protection and has gone one step further and granted this permission to over two thousand workers, over 1,000 of whom were confirmed active in the workplace. The means of accessing this work from a rural remote Direct Provision Centre is now a logical consideration for all parties involved. I did not receive any reasoning from the Complainant to explain the clear disparity in permission granted and taken up.

I note that the 2018 Regulations on Reception provide defined rights to Education, Health and consideration for the Labour Market. However, I did not find clear rules on the applicant’s access to the Labour Market outside the terms of Section 11.

However, I noted that Section 11 (11) grants permission for vocational training “in the like manner and to the like extent in all respects as an Irish Citizen”. or me at least, this suggests an attempt at harmonisation in the spirit of the Directive.

I also noted that both Ministers are to review Schedule 6(parameters of jobs incorporated in permission to work) for

1 Disturbance of Development of labour market

2 Inclusion of particular occupations in the face of such disturbance or development

3 Nature of the work available to applicants

It seems to me a review of the nature of work available may provide the parties with an opportunity to consider whether transport to work has had an impact on the nature of the work available.

I have taken the time to transcribe List 4 Evidence of Residency Entitlement which the complainant faced on her visit to the Driver Centre in October 2018

1 Irish /UK Long form birth/adoption certificate

2 Certificate of entry in the Irish Foreign Births Register

3 Irish Passport/card

4 Current passport/ national identity card for all EU/EEA/Swiss citizens

5 Irish Certificate of Naturalisation

6 Current Certificate of Registration (GNIB) for non-EU /EEA /Swiss Citizens (must be presented with a current passport valid for international use)

List 1 refers to photographic ID. No issues raised in the application process

List 2 refers to Evidence of Address. No issues raised in the application process.

List 3 Evidence of PPSN. No issues raised in the application process.

This Guidelines issued in October 2016.

There is an important addendum to these 4 lists

“In some instances, the same document could satisfy more than one requirement, eg.an Irish /EU Passport is adequate as photo ID and evidence of Residency entitlement “

The Complainant submitted Guidelines issued in November 2018 which outline the following:

“To make an application for a Driving Licence or Learner Permit, you must be able to show that you are a national off Eu, EEA or Switzerland or have leave to remain in Ireland.

You may present your Irish Driving Licence or learner permit, where your place of birth recorded on it I within EU, EEA or Switzerland or a Public Services Card where your place of birth or nationality are recorded as within EU, EEA or Switzerland. Public Service Card is born or national of EU, EEA or Switzerland. Provision is also made for the IRP (Irish Residence Permit) which replaced the GNIB card in December 2017.

The issues which has gone to the core of this case has rested on both party’s interpretation of “normal residence “The Complainant has submitted that the ordinary meaning must be given to the complainant’s unbroken presence in the country since 2015.

The Respondent has rejected that concept and has submitted that the complainant cannot at any possible interpretation comply with this definition. She does not have leave to remain in Ireland. They also submit that nothing in 2018 Regulations SI 230/2018 bring this into the complainants reach as a driving licence is not included as “material protection provisions “to be granted by the State. The State in this case has sought to “verify evidence of an applicant’s entitlement to reside in the State and is not concerned with race

” . All applicants are required to submit the same information.”

I have transcribed the definition of “normal Residence “as outlined in the 2006 EC Directive, and the 2006 Regulations.

“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 to carry out a task of a definite duration. Attendance at a university or school does not imply transfer of normal residence;

The Respondent has placed several cases before me which refer to other applicants struggles to in the main secure Refugee Status in the State. I have read them all and learned from them. However, this case is directed as a claim of discrimination as the complainant was found not to have provided “valid evidence of Residency Entitlement “The Complainant told me that she was directed to return when she obtained a Stamp 4 / GNIB card.

I found some lapse in that statement as the Complainant is not covered by the Employment Protection Acts 2014 as she is an applicant for International protection who has been granted permission to work in accordance with the Regulations which followed N V H in 2018.

The Complainant has submitted that the Respondent was required to follow a more in-depth due diligence in the handling of this application and her exclusion from the Permit constituted Discrimination.

12 (4) C) requires any evidence of identity required in accordance with Regulation 54(1).

(a)    Passport

(b)    An employee or student card

(c)     DSP payment book

(d)    Medical Card

(e)    Free Travel Card

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

(g)    A Sign In card for DSP purposes

(h)    Bank, Savings bank Book or cheque book

(i)      Credit card

(j)      Credit Union Card

(k)    Birth of Marriage Cert

(l)      A registration certificate (means a registration certificate under Article 11 of Aliens Order 1946)

It is of note that the complainant’s application to access the Labour Market was grounded on her TRC card. I note that the GNIB card has been replaced by an IRP card, nonetheless, the complainant could not attain either of these cards due to her status as a seeker of International Protection.

I asked to see the entire copy of this document and noted that the TRC is not deemed evidence of Identification. This has placed the Complainant in a vulnerable situation in the “evidence of residency entitlement “section.

I accept that the Complainant has leave to remain in Ireland while her application for International Protection or Subsidiary application is processed and determined. I find that she satisfies the definition of “normally resident “outlined in Article 12 of the Directive but has not yet been granted Refugee status by law. She is currently unable to satisfy the “evidence of residence “requirements outlined in list 4 of the October 2016 Guidance Note.

What I need to decide here is whether she has been discriminated against in the process of application for a Learner Permit?

It is very clear from listening to the Respondent that the field of Driving Licences in Ireland has gone through seismic change since 2006 and radical change since the issuing of the new “plastic card “licence in 2013. I can appreciate that the harmonisation of Driving Licences at EU level across over 110 models of licence has proved challenges. I also appreciate that the Respondent is very keen to observe the statutory responsibility for Road Safety and Security as a Member State.

The process of seeking International Protection is an elongated process as demonstrated in N VH, I note that it has a high level of rejection from the figures submitted by the Complainants representative.

I note that an application for a subsidiary arrangement may then follow. It is conceivable that an applicant for International Protection may be resident in the State for 5 to 10 years during this process. This is a large part of anyone’s life and for a Mother and her baby raises an extra dimension to consider.

The Complainant is an Indian National and an applicant for International Protection.

In Judy Walshe Book on Equal Status Acts 2000-2011, she provides an important background to Indirect Discrimination in Chapter 4

“The concept was first applied by a Court in Griggs and Duke Power Co 401 US 424(1971) The US Supreme Court struck down reliance on general ability testing and High School Diplomats as job requirements because o the disproportionate negative impact these had on black workers. The test and qualification were not sufficiently related to ability to perform the jobs in question”

The term “disparate impact” evolved and was recognised in the EU and Indirect Discrimination is also prohibited under ECHR.

Section 3 of the Act addresses:

Discrimination (general).

3

3.— (1) For the purposes of this Act discrimination shall be taken to occur —

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which —

(I) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person —

(I) is treated, by that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by paragraph (a), constitute discrimination,

or Indirect Discrimination:

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a 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(1) (h) provides that these persons are of a different race, colour, nationality, ethnic or national origin.

Walsh goes on to say that Identifying a provision that disadvantages people covered by a discriminatory ground is not enough to succeed in an indirect discrimination claim. Under Irish and EU law the claim will not be successful if the measure in question can be justified as a proportionate means of achieving a legitimate aim. The parties in this case have submitted detailed discussions in this regard and I must now move to active consideration of both arguments.

The Complainant is an Indian National and an applicant for International Protection. She has been granted permission to reside here on a temporary basis to facilitate this application and has since given birth to a baby boy. She has also been granted a finite permission to work which is renewable. She has experienced pronounced problems in securing and maintaining work from her Direct Provision accommodation. Her current employers have given her to understand that she would be supported by them if she can obtain a licence to drive in Ireland. The Complainant also possesses a valid Full Indian Driving Licence until 2033.

The Respondent has vetoed her application for a Learner Permit without knowledge of the pre -existing licence. The rejection has rested on the lack of “evidence of residence “based on the criteria inserted in the October 2016 Guidelines. This constitutes an apparent neutral provision which has place the complainant at a disadvantage compared with other non-Indian asylum Seekers.

She has been refused a learner permit by the Respondent which in turn has had a negative impact in her capacity to access and sustain a presence in the labour market in Ireland. I accept that has had a serious disparate adverse impact on the complainant

In Bilka Kaufhaus V Weber Von Hartz [1986] ECR 1607 a Gender Discrimination employment case on pension the CJEU set down three criteria that must be met to avail of the objective justification test.

1 Corresponds to a real need on the part of the Undertaking

2 Is appropriate with a view to achieving the objective pursued

3 Is necessary to that end

The Respondent now assumes the burden of proof in seeking to objectively the legitimate aim contained in List 4 in the 2016 Guidelines for a Learner Permit.

In Mc Donagh V Navan Hire ltd DEC S 2004-017, The then Equality Tribunal found that the requirement to have a permanent address to hire a sander had a disparate impact on Travellers and could not be justified.

In Eweida V British Airways [2013]ECHR 37 ,a complaint regarding wearing a cross visibly around the neck . The ECHR found that the British Government had failed to protect the right to manifest her religion.

I propose to apply the Bilka Kaufhaus Test to the facts of this case.

Real Need;

The Respondent has argued that the complainant has not complied with the requirement to provide evidence of residence which is delineated in List 4. the Complainant told the hearing that she was told to return when she had secured a GNIB card now renamed IRP. This is impossible for her. I cannot identify that this GNIB/ IRP card constituted a reasonable need by the undertaking. This is not universally set out in the Directive 2013/33/EU. Article 15 of which states that:

Member States shall decide the conditions for granting access to the labour market for the applicant in accordance with their national law, while ensuring that applicants have effective access to the Labour market

Evidence of Identity is set out in Part 10, Section 54 of SI 537 /2006. I did not obtain a clear response from the Respondent as to why these requirements were edited and conflated into List 4 of the 2016 Guidelines, outside concerns for EU security and road safety? I have established that in the prior existence of Regulation 54 of the SI 537/2006, the Respondent has not demonstrated a read need on behalf of the undertaking to diversify into an edited version. I appreciate that it had a Commercial and good Administrative goal, However, there were measures short of the conflated list open to the Respondent to address the need for evidence of residence. A Guideline is not a statue and the decision made to edit the components of Regulation 54 were not required by any enactment or court order, EU or international obligation

I find that evidence of identity outlined in List 4 differed from Regulation 54 of the 2006 Regulations This disparity has raised an inference of indirect disclination as the complainant in the minority grouping of an Indian National seeking International protection cannot comply with List 4 and this I more easily satisfied by those outside that grouping.

In July 2015, The CJEU issued a Preliminary Ruling in a case of alleged discrimination on ethnicity grounds as to whether an electricity company’s placing of electricity meters in a majority Roma area at a height where they could not be read was discriminatory by association.

Chez Razpredelenie Bulgaria Ad v Komisia za zashtita ot diskriminatasia C 83/14

The CJEU advised the national court that even if the Electric Company practice is not direct discrimination , it nevertheless does put Roma at a particulat disadvantage compared to people living in districts where meters are at normal height( 1.7m as oppose to 6-7 metres ) and is indirect discrimination unless it can be properly justified on the basis off legitimate aims of preventing and combating fraud and abuse and ensuring the security and quality of the energy network qualified this by directing that the disadvantage caused by the practice appeared disproportionate to the objective pursued .

In the instant case, the complainant was permitted to use her TRC card to apply or access to the Labour Market. I cannot agree with the Respondent that the List 4 requirements to prove evidence of residence entitlement have been objectively justified.

The Respondent has not demonstrated for me that their reliance on list 4 was appropriate or necessary in pursuance of a legitimate aim.   I have not been able to identify a legitimate aim outside the “leave to remain “argument which I find is overtaken when the complainant has fulfilled the criteria for normal residence.

I have seen several similarities in the Bulgarian Preliminary Reference. The Respondent had in that case a statement of “levels of tampering and theft “The Respondent in this case have expressed a concern that the “mutual recognition of Member States Licence “would be compromised if the complainant left the state. The complainant responded to this by confirming that she is currently not permitted to leave.

The Complainant has applied for a Learner Permit. I am not satisfied that she has exhausted any entitlement she may have through her Indian licence and perhaps a different conversation needs to take place around that.

For now, I have found that the Respondent has failed to demonstrate that the provision of “GNIB card “as Evidence of Residency Entitlement /current certificate of registration has passed the Test set down in Bilka Kaufhaus. The Respondent has failed to demonstrate that the provision was objectively justified by a legitimate aim and that means of achieving that aim were appropriate and necessary.

Chez Razpredelenie Bulagrai Ad v Komisia za zashtita ot diskriminatasia C 83/14 applied.

The Court observes that this practice seems to be disproportionate to those aims and to the legitimate interests of the inhabitants of the district concerned. It then directed the national court to look behind the “offensive and stigmatising “nature of the practice complained of .

I also took some reference from A ECHR case of Lingurar V Romania 48474/14

The Complainant has declared a very strong need to reconcile her transport needs to sustain her place in the Labour Market. A learner Driver Permit is a first step in that process.

I find that the Complainant has been in receipt of Indirect Discrimination regarding her application or a Learner Driver Permit. Her claim is well founded.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

I have found that the Complainant received Indirect Discrimination during her application for a Learner Driver Permit. The fact that she met an obstacle having already completed two steps of the process makes the serious disparate adverse impact pronounced in my opinion.

I have decided to direct the Respondent in the following course of action in accordance with Section 27 of the Act.

1 I order the Respondent to meet with the complainant in the company of her chosen representative within four weeks of the date on this decision to address.

1(a) To discuss whether the complainant is permitted to surrender her Indian Licence for an equivalent licence in Ireland without cost.

If this is unsuccessful, she should be granted a Learner Permit immediately without any cost to her.

2. As I have found that the impact of the indirect discrimination was pronounced and obstructive to the complainants wish for self-actualisation in accessing work, I order the Respondent to pay the complainant €5,000 in compensation for the distress suffered.

3 I order the Respondent to immediately amend the 2018 Guidelines to take account of the revised status of the applicants for International protection who have like the complainant been given permission to work in Ireland. It is of note that Section 14 permits more favourable treatment.

Finally, I would like to request the Respondent to seek access to the review permitted in Section 13 of the 2018 Regulations (Reception) to table “the nature of work available to applicants “ directly to the relevant Ministers .

Indirect Discrimination on grounds of race, International Protection.