The Long Road to Justice: Driving Licenses for Asylum Seekers in Ireland

The Long Road to Justice: Driving Licences for Asylum Seekers in Ireland

By Matthew O’Shea, Editor in Chief, SS Law and Business, and Liam Ó Lionáin, SS Law and Business

In the recent High Court judgment of Landsberg & Breetzke v NDLS & Others, two South African asylum seekers successfully challenged the refusal of the Road Safety Authority (RSA) – acting through the National Driving Licence Service (NDLS) – to grant them full Irish driving licences. The RSA contended that the applicants could not be issued Irish driving licences as, in its view, they had failed to demonstrate that their normal residence was in Ireland. The Irish Human Rights and Equality Commission (IHREC), arguing on behalf of the applicants, submitted that the asylum seekers’ normal residence was in Ireland, irrespective of their status as asylum seekers. The IHREC relied on the wording of the Road Traffic Regulations (Licensing of Drivers) Regulations 2006, asserting that it was discriminatory to require the applicants to meet a higher standard of ‘residence’ than is required of any other person resident in Ireland.

Judge Mark Heslin ruled that, as the applicants are lawfully resident in Ireland, they are eligible to receive Irish driving licenses. In coming to this decision, he considered both the pertinent EU Directive and the 2006 Act, noting that neither piece of legislation cites immigration status as a relevant factor, and focused on the absence of any requirement in the relevant legislation for a licence-seeker to have what the RSA termed “regular immigration status.” He held that the strict terms of residence afforded to asylum seekers do not make the applicants’ residence any less lawful than that of any other resident. He expressly referenced feeling “obliged” to reject the RSA’s assertions that the asylum seekers ought not be entitled to Irish driving licenses. Judge Heslin’s judgment was quite critical of the RSA’s approach, stating that the inclusion of a minimum threshold of time spent as a normal resident of Ireland would “do violence to the words used in the 2006 regulations.” He stated that “it would strain beyond breaking-point” the wording of the regulations if the applicants were compelled to demonstrate their normal residency beyond merely showing that it is not unlawful. Judge Heslin quashed the RSA’s decision not to exchange the applicants’ driving licenses for Irish ones.

Reaction to the Decision

This decision has been celebrated by human rights organisations across Ireland. Sinéad Gibney, Chief Commissioner of IHREC, welcomed the decision, aptly summarising the importance of driving licences as “[not] just a plastic document, it’s a tool for finding and getting to work, for bringing children to school and childcare, for visiting your friends and generally being part of society…”

Gibney continued: “Despite commitments made by Government, these individuals and families have been left for too long, often in remote rural settings with limited public transport, their work, educational and social opportunities stifled. We hope that they will now be able to get on with their lives, and to pursue such opportunities without further interference.” This strong endorsement of the decision by human rights proponents makes clear the importance of these seemingly mundane documents for integration and inclusion in law and society.

General Access to Justice for Asylum Seekers

The decision, therefore, marks a distinctive step in the right direction in affording asylum seekers adequate protection and opportunities in Ireland. However, it also shows that there is still progress to be made. The direct provision system, under which the Government provides “support” to asylum seekers, has widely been criticised as lacking effective assistance and protection. Under the scheme, asylum seekers are entitled to a

place to live, meals, a weekly payment of €38.80 per adult and €29.80 per child, and a medical card. For many commentators, it does not afford adequate protection to those who enter into it, and prolongs the struggle of those seeking asylum in Ireland.

The living conditions under direct provision have been reported on by Doras - independent NGO working to promote and protect the rights of people from a migrant background in Ireland - which has highlighted how the average time spent in the centres is 2 years, with some asylum seekers spending as many as 10-12 years. Doras also highlights how the centres are run by private contractors on a for-profit basis on behalf of the State, and inspection focuses largely on health and safety compliance, with comparatively little attention given to social and emotional needs of residents.

Large numbers of asylum seekers across the European Union have only been able to access the labour market since 2018, under the European Communities (Reception Conditions) Regulations. In Ireland today, according to the Citizens’ Information website, asylum seekers are not allowed to work until they have been waiting for six months for the International Protection Office (IPO) to issue its first decision on their application. This marks a further challenge for asylum seekers, who must endure this time of unemployment before being able to access the Irish labour market.

The COVID-19 pandemic has magnified the injustices facing asylum seekers, and the need for reform in this area in Ireland. This spans much wider than something as simple as driving licences.

For those who could not drive themselves around over the past two years, reliance on public transport grew more difficult with reduced capacities across buses and trains. This is particularly relevant to those working in factories and meat plants, which largely remained open through lockdowns, making an already difficult mode of transport even more difficult. Our public transport system, particularly in rural areas, has widely been criticised for its lack of widespread coverage. Without access to proper transport facilities, those without the ability or resources to drive face significant challenges. Dr Fiona Murphy, Senior Lecturer at the School of History, Anthropology, Philosophy and Politics at Queen’s University Belfast has highlighted the pandemic’s specific impacts on direct provision centres, where social distancing and isolation were often near impossible if not overtly impractical. Murphy joins the established group of commentators calling for the abolition of direct provision, arguing that “the pandemic has proven that [it] is a system which fails individuals and families seeking international protection. It is clear that much harm has already been engendered through this system, now further compounded by the pandemic.” Murphy also highlights how asylum seekers who were furloughed or lost their jobs were unable to register for the Pandemic Unemployment Payment of €350 per week, in spite of lobbying by NGOs and activists around the country.

The recent decision of the High Court, therefore, is to be welcomed in its affording to asylum seekers increased autonomy and freedom in their day-to-day lives.

Conclusion

The struggles of asylum seekers in this country have widely been reported for some time. Already-existing struggles from direct provision have been exacerbated by the pandemic. It is encouraging, therefore, to see this decision by the High Court. A driver’s license may indeed represent a small step in the right direction, but it certainly opens the door for further improvement. Access to justice is certainly about more than accessing places around the country, but the ability for asylum seekers to drive with full licences highlights a step in the right direction on this long road to justice.