Bojan Bogdanic v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sales |
| Judgment Date | 29 August 2014 |
| Neutral Citation | [2014] EWHC 2872 (QB) |
| Docket Number | Case No: HQ13X03623 |
| Court | Queen's Bench Division |
| Date | 29 August 2014 |
[2014] EWHC 2872 (QB)
The Honourable Mr Justice Sales
Case No: HQ13X03623
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Nicholls QC (instructed by The Treasury Solicitor) as Advocate to the Court
James Eadie QC & Mathew Gullick (instructed by The Treasury Solicitor) for the Respondent
The Appellant was unrepresented and did not appear
Hearing date: 29/7/14
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
Part II of the Immigration and Asylum Act 1999 ("the 1999 Act"), entitled "Carriers' Liability", sets out a regime under which the Secretary of State can impose civil penalties in the form of monetary fines on a carrier whose vehicle, on passing through United Kingdom border control, is found to contain clandestine entrants to the United Kingdom (that is, people who are hiding in the vehicle in an attempt to evade immigration control and enter the United Kingdom without permission). The object of the regime is to encourage carriers, such as lorry drivers, not to transport clandestine entrants into the United Kingdom and to exercise care to ensure that there are no clandestine entrant stowaways hidden in their vehicles when they come to the United Kingdom from abroad.
Since Part II of the 1999 Act was brought into force in 2000, United Kingdom border controls have been established at certain designated immigration control zones outside United Kingdom territory, in France. The first immigration control zone was established at Coquelles. In 2004 three other immigration control zones were established, at Calais, Boulogne and Dunkirk.
This case concerns the operation of the carriers' liability regime in relation to the immigration control zones in France. This is the judgment in the trial of a preliminary issue which arises on the appeal by Mr Bogdanic against certain civil penalty charges imposed by the Secretary of State in relation to clandestine entrants who were found hiding in his lorry. The Secretary of State says that in an inspection on 16 September 2011, three clandestine entrants were found hiding in a lorry driven by Mr Bogdanic in the immigration control zone at Dunkirk.
The Secretary of State gave notice of imposition of a civil penalty under Part II of the 1999 Act, as amended by section 125 of and Schedule 8 to the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). The amendments to the 1999 Act pursuant to the 2002 Act took effect on 8 December 2002, by virtue of being brought into effect on that day by the Nationality, Immigration and Asylum Act 2002 (Commencement No. 1) Order 2002 (SI 2002/2811) ("the Commencement Order"). The preliminary issue on the appeal concerns the proper interpretation of the Commencement Order.
The Secretary of State imposed a penalty on Mr Bogdanic personally of £75 per clandestine entrant and a penalty on the company which owned the lorry of £250 per clandestine entrant. The Secretary of State imposed these penalties on the basis that Part II of the 1999 Act had been effectively amended by the 2002 Act both in relation to the application of Part II in the territory of the United Kingdom and in relation to its application in the immigration control zones in France.
Mr Bogdanic appeals against these penalties to the County Court. An important point of law arising on the appeal has been identified and the case has been transferred to the High Court for that point of law to be determined.
Mr Bogdanic is not currently taking any substantive part in the proceedings, but Mr Nicholls QC has been appointed as Advocate to the Court to assist with legal submissions in opposition to those made on behalf of the Secretary of State.
The point of law which has been identified relates to the effect of the Commencement Order. It has been noticed that the relevant part of the Commencement Order which brought the 2002 Act amendments to Part II of the 1999 Act into effect is poorly drafted. An issue arises whether it was effective to bring those amendments into effect not just in relation to the carriers' liability regime as it applies to the territory of the United Kingdom (which it clearly was), but also in relation to immigration control zones in France. Mr Nicholls presents an argument that the Commencement Order did not achieve the commencement of those amendments in relation to those immigration control zones. If correct, that argument would assist Mr Bogdanic in his appeal.
By an order dated 13 March 2014, Green J ordered that there should be a trial of this point of law as a preliminary issue in the appeal. In his order, the preliminary issue is identified as follows:
"whether the interpretative approach set out in Inco Europe Ltd v First Choice [2000] 1 WLR 586, HL, should be applied to the [Commencement Order] so that section 125 of and Schedule 8 to the 2002 Act should be held to have come into force from 8 th December 2002 for the purpose of clandestine entrants who pass, or attempt to pass, through immigration control concealed in a vehicle."
Under the interpretative approach in Inco Europe, a court may be permitted in certain very limited circumstances to adopt an interpretation of a legislative provision which has the practical effect of rectifying a defect in its drafting. In this case, the Secretary of State maintains that the circumstances surrounding the promulgation of the Commencement Order are such that it is appropriate for the relevant part of it to be interpreted so as to cover the immigration control zones in France as well as United Kingdom territory, pursuant to the guidance in Inco Europe. Mr Eadie QC, for the Secretary of State, submits that this means that the Commencement Order was effective to bring the amendments to the 1999 Act under the 2002 Act into force in relation to clandestine entrants found in a vehicle in an immigration control zone in France.
Mr Nicholls QC, as Advocate to the Court, presents the opposing argument. He submits that the Commencement Order cannot properly be given such a rectified interpretation by the court. He says that this means that there was no lawful basis for the civil penalties to be imposed in this case.
The Secretary of State filed evidence in relation to the preliminary issue in the form of a witness statement of Susan Wale of the Home Office, dated 9 June 2014. Ms Wale provides information about the background to the enactment of the 1999 Act, the 2002 Act, the making of the Commencement Order and the operation of the carriers' liability regime contained in Part II of the 1999 Act. Since the preliminary issue is an issue of law, turning on the proper interpretation to be given to the Commencement Order, it was not necessary for Ms Wale to give oral evidence. Her evidence was unchallenged.
However, to a significant degree, Ms Wale's evidence was irrelevant to the issue of interpretation of the Commencement Order which the court has to determine. Ms Wale set out the background and internal departmental documents which made it clear that the policy intention of the Secretary of State when introducing the 2002 Act amendments of the 1999 Act and then commencing those amendments by the Commencement Order was indeed to continue the application of the carriers' liability regime in relation to immigration control zones in France, as well as in relation to United Kingdom territory. But in construing a legislative instrument such as the Commencement Order, just as in construing a legislative instrument in the form of an Act of Parliament, it is a basic constitutional principle that the citizen or person subject to the relevant law should have the means of access to any material which is said to provide an aid to construction of that instrument. It is only material which is in the public domain and of clear potential relevance to the issue of interpretation of a legislative instrument which can be treated as having any bearing on the proper construction of that instrument: see Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 614A (Lord Reid), 638D-H (Lord Diplock) and 645C-H (Lord Simon of Glaisdale); Fothergill v Monarch Airlines Ltd [1981] AC 251, 279F-280B (Lord Diplock: "… the need for legal certainty demands that the rules by which a citizen is to be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible …"); and R (Public and Commercial Services Union) v Minister for the Civil Service [2010] EWHC 1027 (Admin); [2010] ICR 1198, [53]–[55]. The subjective policy intent of the Secretary of State or of those in his or her department is irrelevant to the question of interpretation before the court.
The Legislative Context
Part II of the 1999 Act established a carriers' liability regime involving the imposition of financial penalties on carriers found with clandestine entrants concealed in their vehicles when passing through United Kingdom immigration control, regardless of the culpability of the carrier for the hidden presence of those entrants.
Section 32 of the 1999 Act, as originally enacted, provided in relevant part as follows:
"32 (1) A person is a clandestine entrant if —…
(b) he passes, or attempts to pass, through immigration control concealed in a vehicle …
and claims, or indicates that he intends to seek, asylum in the United Kingdom or evades, or attempts to evade, immigration control.
(2) The person (or persons) responsible for a clandestine entrant is (or are...
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