The High Court has ruled that a licensing authority may not limit the temporal scope of a five-year taxi licence based on the immigration status of a foreign driver. The court made this ruling in a context where a foreign taxi driver was granted a licence for four months while his immigration appeal was pending.
Delivering judgment in the case, the court determined that the decision to issue a time-limited licence was invalid because the legislation only provided for a five-year licence. However, it was acceptable for the authority to grant a licence on the condition that the applicant retained a valid permission to remain in the State, the court said.
The applicant was a taxi driver from Bangladesh. He married an EU citizen in 2012 and resided lawfully in Ireland as the family member of an EU citizen. In 2018, the applicant divorced his wife. A week later, the applicant applied to the Minister for Justice for permission to remain in the State under the European Communities (Free Movement of Persons) Regulations 2015.
The application to retain a right of residence was refused by initial decision in May 2019. The applicant sought a review of the decision. The review was completed in March 2021 and upheld the initial decision. As such, the applicant did not have a right to remain in the State. As part of the decision, the Minister determined that the applicant’s marriage had been a marriage of convenience to secure his immigration status.
While his immigration application was pending before the Minister, the applicant received temporary extensions on his entitlement to remain in Ireland. During this time, he also applied for an SPSV driver’s licence to allow him to operate a taxi. The application was made to An Garda Síochána which was operating as the interim licensing authority as the National Transport Authority had not assumed the role yet.
In November 2019, the Garda Carriage Office confirmed that the applicant would receive a licence until April 2020, when his immigration extension expired. The applicant tried to renew his licence in March 2020 when he received a further immigration extension. In May 2020, the applicant’s application for renewal was refused because his immigration permission had not been regularised and his permission to remain was temporary.
The applicant subsequently issued judicial review proceedings, arguing that the Taxi Regulations 2015 provided that a licence must be granted for five years. Accordingly, the applicant claimed that the Gardaí were not entitled to issue a licence for four months based on his immigration status.
The court began by noting that the Minister’s refusal of permission to remain in Ireland has significantly narrowed the dispute. For example, the court did not need to determine whether the licensing authority could use its discretion to refuse the renewal based on the applicant’s alleged anomalous immigration history.
The court considered the change in policy by the Gardaí on issuing licences to non-nationals. The past policy was to grant a licence that was coterminous with the duration of an immigration permission. After February 2020, the policy was changed so that people on short and temporary permissions would not be deemed suitable for taxi licences.
The court noted that this policy was applied to individuals who made claims for residence under the EU Citizenship Rights Directive. The court held that the European Commission had recently emphasised that restrictions on a right to drive a taxi must be objectively justified and that the court held “grave reservations” about the current policy.
The court said: “No objective justification has been articulated by the licensing authority as to why the family members of an EU citizen should systematically be denied the right to drive a public service vehicle pending the completion of immigration formalities which can take in excess of six months.”
The court stated that it would have referred the matter to the CJEU, but that the present case could be resolved without such a reference. Section 10 of the Taxi Regulation Act 2013 provided that the licensing authority had to be satisfied that an applicant was a “suitable person” to hold the licence. Included in this assessment was whether the applicant was “of good character.”
The court held that it would be inconsistent with the legislative intent to interpret the Act as precluding the licensing authority from having regard to the immigration status of the applicant. Since a person without an immigration permission was present in the State unlawfully, this could inform the concept of “suitability to hold a licence.”
Further, a finding of serious dishonesty had already been made by the Minister against the applicant. The sham marriage with his former wife went to the “good character” of the applicant. The licensing authority was entitled to rely on this finding.
The court emphasised that the decision in December 2019 to grant a time-limited licence was invalid because SPSV licences had a fixed duration of five years. However, the licensing authority could make the licence conditional upon the production of a renewed immigration permission on the expiration of the previous one.
The court refused to quash the decision in May 2020 to refuse the SPSV licence to the applicant. The court held that the decision was informed by the adverse findings of the Minister which went to the “good character” of the applicant. If these adverse findings were not present, the licensing authority would not have been entitled to refuse the licence solely based on the temporary nature of the immigration permission.
The court held that the initial decision to grant the temporary licence was invalid. The court held that it was unnecessary to remit the matter in light of the applicant’s lack of a right of residence in Ireland.