Judge has ‘grave reservations’ about legality of taxi licence policy

A High Court judge has expressed “grave reservations” about the legality of a policy that taxi driver licences are not granted to a person with temporary immigration permission while they await determination of a residence card application.

Mr Justice Garrett Simons said An Garda Síochána, the current licensing authority, has not articulated an objective justification for why family members of EU citizens should “systematically” be denied the right to drive a public service vehicle pending completion of immigration formalities under a policy change introduced in 2020.

It should be emphasised, he added, that the authority would be entitled to carry out background checks on an applicant by consulting Garda records and liaising with police in the applicant’s home country. Applications could be refused on foot of such checks.

The judge made the comments in a High Court judicial review of two decisions of An Garda Síochana, Dublin metropolitan region: to firstly issue to a Bangladeshi national a small public service vehicle (SPSV) licence that was time-limited and later, on account of an adverse immigration finding, to refuse his renewal application.

The man’s temporary immigration permission allowed him to reside and work in the State while he awaited final determination of his application to retain his right of residence following divorce from an EU citizen.

He was granted a temporary SPSV licence that expired in April 2020 when his immigration permission lapsed. He was informed he could reapply when his status was renewed. However, the policy changed in the interim.

Upon application for renewal, the licensing authority said it was not satisfied he was a “suitable person” to hold a licence due to his immigration permission being temporary and not regularised.

While the matters in the man’s legal action were significantly narrowed due to affirmation of his immigration refusal, the licensing authority asked for a determination of the issues of principle. It was explained there were a number of similar appeals against SPSV licence refusals pending before the District Court.

Policy shift

The 2013 Act envisages the National Transport Authority (NTA) becoming the licensing authority. However, the Commissioner of An Garda Síochana has assumed this role pending the requisite ministerial order being made.

A superintendent in the licensing department said the February 2020 policy shift followed a rise in the number of non-national residents seeking SPSV licences while on temporary immigration permission, the judge noted. The new policy considered the nature and duration of an applicant’s permission. Applicants with short permission would not be deemed suitable candidates for SPSV licences, said the superintendent.

This approach extends to people who are awaiting assessment of their application for a residence card under domestic regulations that give effect to the EU Citizenship Rights Directive, the judge noted.

In a notice published in February, the European Commission emphasised that restrictions on the right to drive a taxi must be objectively justified, said the judge.

Mr Justice Simons said it is “unsatisfactory, to say the least”, that significant changes in licensing policy, which have potential implications for compliance with Ireland’s obligations with the EU Citizenship Rights Directive, would be introduced in an “ad hoc manner” by an interim licensing authority.

Any such shift, if sought, should be introduced by the NTA through regulations, he said.

‘Good character’

In this case, the licensing authority was entitled to rely on an adverse immigration finding that goes to an assessment of the man’s “good character”, as required under the Taxi Regulation Act 2013.

The licensing authority is entitled to rely on a first-instance decision finding, even if it is subject to a review process, as it signals a “red flag”, the judge said. For that reason, he found the refusal to renew the licence was valid.

The earlier decision to issue a licence lasting only months was invalid, he said, as the licensing authority is only allowed to issue SPSV licences lasting five years. Albeit, he said, these five-year licences could come attached with the condition that a non-national must present renewed immigration permission or the SPSV licence would be revoked.

The judge listed the case for a date next month to hear from the parties their views as to the appropriate order.