For Migrant Taxi Drivers, “Good Character” Criteria for Licence Means Little Right to Privacy

Mamun Salam cherishes the freedom of being a cab driver.

“It’s a very independent job, it’s flexible, good money, you can manage yourself,” he said recently, sitting at a McDonald’s in Blanchardstown, holding a cappuccino.

Milton Hoque, another cab driver and Salam’s friend, said the job is handy for immigrants who are new to the country and struggle to land other jobs, for reasons ranging from language barriers to discrimination.

“If a non-citizen applied for a job, and an Irish person applied for a job, the Irish citizen has a higher chance to get the job,” said Hoque, who is now an Irish citizen, resting his elbows on the table.

Taxi drivers are their own bosses, so they don’t have to face hiring biases, Hoque said. But there are signs that it’s been getting harder for immigrants to get licences to drive taxis.

In February 2020, An Garda Síochána stopped issuing taxi licences for drivers from overseas whose permissions to live and work in Ireland were due to run out in the near future.

That was challenged in the High Court.

And on 25 April, Mr Justice Garrett Simons ruled that the Gardaí aren’t entitled to refuse people “solely on the basis that the immigration permission had been temporary in nature”.

But his judgment said they could consider other factors like whether or not someone was of “good character”, and that immigration histories could be part of that.

“Good Character”

The Taxi Regulation Act 2015 says a taxi licence should be valid for five years.

But, previously, Gardaí had just granted shorter licences, and people could renew when their new permission came through.

The decision to change that was made behind closed doors, says immigration barrister Cathal Malone.

“There was no publication, no press release,” says Malone, who recently represented the man who challenged the Garda Commissioner on one such refusal at the High Court.

In that case, the question of good character had also come into play.

The Department of Justice had initially found that Malone’s client’s marriage to an EU citizen was not genuine, Mr Justice Simons said, although a review of that decision was still active.

The new ruling allows the Garda Carriage Office to scrutinise would-be cab drivers’ migration histories to judge their characters.

But the Taxi Regulation Act 2013 doesn’t clearly define what good character means and whether immigration matters fall within that.

A spokesperson for the Gardaí said that in granting taxi licences, it assesses applicants’ “suitability” to hold one – which, by law, includes good character.

They don’t have the number of licences issued to migrant drivers from outside of the European Economic Area (EEA), they said. It would take too long to compile, they said.

A Quiet Change

In Gardaí’s affidavits to the High Court, Malone learnt, he says, about its quiet policy change to exclude migrant drivers on precarious permissions.

It was triggered by an uptick in the number of migrant drivers applying for taxi licences on temporary immigration permissions, says Malone, who has pulled up Gardaí’s affidavit on his phone.

The Garda Carriage Office reached the decision together with Garda National Immigration Bureau (GNIB) and other state agencies, it says.

That led to several refusals and subsequent pending appeals before the District Court, says Malone.

Without the recent ruling, Gardaí would have continued to turn down applications from migrant drivers with temporary permissions, even though they have the right to work, he says.

But the recent ruling greenlights probes into would-be drivers’ migration histories, with little regard for their right to privacy, Malone says.

Salam, who got his licence in June 2019 before the policy change, says he’s currently not allowed to drive his cab because his temporary immigration permission ran out.

He’s waiting on another one to come through, he says.

Judging Characters

Sometimes, decisions in immigration files aren’t final and end up overturned, Malone says, so they’re not a final verdict on anyone’s character.

The Department of Justice recently withdrew its initial decision that his client’s marriage was of one convenience.

“To this day, Mr Rahman maintains that it wasn’t a marriage of convenience and his ex-wife is very supportive of him in that regard,” says Malone.

Both Salam and Hoque, the taxi drivers in Blanchardstown, say that even if someone had married out of convenience, that doesn’t mean they’ve a bad character to the point of posing a threat to the public as a taxi driver.

“Most marriages are for convenience,” said Hoque, smiling broadly. “If someone married to get immigration papers, I don’t think they shouldn’t be able to drive a taxi.”

Salam says it can be hard to navigate the bureaucracy and get on a secure status long-term, so he understands if someone marries an EU citizen out of desperation.

“I’m living in this country 20 years, still waiting,” says Salam, who’s been undocumented for only three years of that time, not enough to make him eligible to apply to the new amnesty scheme.

Hoque says things like the reasons for marriages are too personal, and if migrants’ private lives can be scrutinised to that extent, that is unfair.

“It’s very, very personal. Why someone got married doesn’t mean they don’t have driving skills or have bad characters,” he says.

For Hoque, as long as someone hasn’t harmed anyone or doesn’t have any criminal convictions, that should be enough for driving a taxi, he says.

But the guards are allowed to factor in things like the Department of Justice’s assessment of someone’s reasons for getting married, decisions that aren’t even final, Malone says, and the extent of freedom for trawling applicants’ immigration files unsettles him.

It means non-EU migrants enjoy weaker data-protection rights than Irish and European citizens, he says.

Is it acceptable to send an Irish farmer’s entire history with the Department of Agriculture to the Garda Carriage Office “to see if there is anything bad there” just because they have applied for a licence to drive a taxi? asks Malone.

If that’s excessive, he says, then the taxi regulator shouldn’t access anyone’s immigration files from the Department of Justice either.

The law governing taxi licences is silent about applicants’ immigration history.

“The regulations currently in force do not impose any obligation, in the context of an application for an [Small Public Service Vehicle] SPSV driver’s licence, for an applicant to provide information or documentation in respect of their immigration status,” says the recent judgment.

A Garda spokesperson didn’t directly address a query as to whether it is satisfied that its Carriage Office’s access to cab drivers’ immigration files was legally sound.

Applicants must declare their nationality and immigration status when applying for a licence, they said.

“An Garda Síochána deals with applications for SPSV licenses in accordance with legislation and legal principals [sic] of due process and fair procedures,” the spokesperson said.

A spokesperson for the Data Protection Commissioner’s Office did not respond to a query sent on 17 May asking about the GDPR implications of the taxi licence process for migrants.

A spokesperson for the Department of Justice directed a similar query to the Gardaí and the Department of Transport.

Malone says that migrants’ files held by the Department of Justice are far more extensive than the limited information accessed by the Gardaí’s GNIB unit, so the process requires the department’s cooperation.

Whose Responsibility?

The Taxi Regulation Act 2013 envisions the National Transport Authority (NTA) as the body in charge of issuing cab and hackney licences, making the Gardaí a temporary regulator.

This has been highlighted in Mr Justice Simons’ ruling too.

The Minister for Transport may make an official order transferring powers to regulating taxis and hackneys to the NTA, but he hasn’t.

An Garda Síochána is the licensing authority, said a spokesperson for the Department of Transport. “The Minister has no plans to change this by way of an order, at this time.” They didn’t say why.

Malone says that if the NTA were the licensing authority, it would be easier to debate how much data and what kind is needed to determine the good character of migrant taxi drivers.

But the guards are involved in immigration affairs, and therefore have easier access to immigration data, giving the process an air of legitimacy, he said.

“The only reason that the guards have access to that information is because the guards are accidentally involved in immigration enforcement,” he said.

The Department of Justice has said it plans to gradually strip the GNIB of its immigration-enforcement duties in line with strategies set in Minister Helen McEntee’s recently published Justice Plan 2022.