Facts: The applicants were two South African nationals who had applied for international protection in Ireland. They applied to the National Driving Licence Service (NDLS) to exchange their South African driving licences for Irish driving licences. The applicants averred that they required driving licences to access the labour market and bring their child to school. Regulation 12 of the Road Traffic (Licencing of Drivers) Regulations 2006 (SI No. 537/2006), as amended, which transposes EU Driver Licencing Directive 2006/126/EC, requires an applicant for a driving licence to have their normal residence in Ireland. The NDLS refused their applications on the grounds that the applicants had failed to evidence their normal residency in the State. The applicants brought judicial review proceedings challenging this refusal.
Reasoning:
The High Court held, firstly, that the instant case differed from A.B. v The Road Safety Authority [2021] IEHC 217 in that it did not concern discrimination or the Equal Status Acts, it was not an appeal from the Circuit Court, and that A.B. did not provide a definitive interpretation of “normal residence”. The ruling in A.B. was therefore not determinative for the proceedings.
In examining the definition of normal residence under Regulation 3 of the 2006 Regulations, the High Court detailed how it equates with where the person ‘usually lives’. The Court held as fact that the applicants resided in the State and nowhere else, and that they cannot leave the State without the consent of the Minister, nor had they attempted to do so. Heslin J recognised that the applicants had permission to remain in the State, for the time being, under section 16 of the International Protection Act 2015. Noting that there is no requirement within the 2006 Regulations nor the EU Directive they transpose to hold a “regular immigration status”, and that the applicants had a statutory entitlement to reside in the State on the basis of their pursuit of international protection, Heslin J held that they were therefore lawfully resident in the State. The High Court clarified that Regulation 3 of the 2006 Regulations does not state or imply that there are gradations of lawful residence. It was held that, on the evidence, the applicants were normally resident in the State for the purposes of the 2006 Regulations.
The High Court underscored that the purpose of the applicants’ stay in the State was clear and verifiable: that of seeking international protection which, contrary to the respondents’ argument, could be understood as a settled purpose. The High Court held that the applicants also had as a purpose the subsequent obtaining of international protection and remaining in the State. Caring for and educating their child in the State and working should also be understood as other purposes.
Decision: The applicants were granted declaratory relief that they were not required to establish any further right of residence than that already established. The decision of the first named respondent to refuse their applications was quashed.
