International Transport Roth GmbH and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon Brown,Lord Justice Laws,Lord Justice Jonathan Parker,LORD JUSTICE SIMON BROWN,LORD JUSTICE LAWS |
| Judgment Date | 22 February 2002 |
| Neutral Citation | [2002] EWCA Civ 158 |
| Docket Number | Case No: 2002/0014 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 February 2002 |
[2002] EWCA Civ 158
Lord Justice Simon Brown
Lord Justice Laws and
Lord Justice Jonathan Parker
Case No: 2002/0014
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Lester of Herne Hill QC, Dr Michael Peglow & Tom Weisselberg Esq (instructed by Messrs Zimmers) for Roth & Others
Richard Gordon Esq QC, Nicholas Bowen Esq (instructed by Messrs Davies Lavery) for Barsan & Others
Tim Nesbitt Esq (instructed by Messrs Rothera Dawson) for Luttich & Others
Ms Claire Newton (instructed by Messrs Breeze Benton) for Mr Koditz Gerald Barling Esq, QC, Mark Shaw Esq & Ms Jane Mulcahy (instructed by Treasury Solicitor) for the Secretary of State
1. The increasing scale of illegal entry into the UK over recent years is well known. It is acknowledged by all to represent a grave social evil. The first attempt to combat it was by penalising those operating ship and aircraft services £1,000 (raised in 1991 to £2,000) for each passenger conveyed to the UK without proper travel documents—see the Immigration (Carriers’ Liability) Act 1987, upheld by the Divisional Court in the face of a European Community Law challenge in R v Secretary of State for the Home Department ex parte Hoverspeed [1999] EuLR 595. The resultant difficulty in reaching the UK without legitimate travel documents drove illegal entrants instead to travel clandestinely, usually by concealment in freight vehicles. The rate of clandestine entry increased dramatically. In 1992 less than 500 clandestine entrants were discovered. By 1997 this had increased to over 4,000 and by 1999 to 16,522. No responsible government could have ignored the problem. Firm action was clearly required. Thus it was that Part II of the Immigration and Asylum Act, 1999 was passed and a new penalty regime created to deter those intentionally or negligently allowing clandestine entrants into the UK. The scheme was first introduced at Dover on 3 rd April 2000, and then applied to the rest of the UK on 3 rd July 2000. It has proved highly effective. The number of clandestine entrants discovered at Dover fell from 1,470 in March 2000 to 588 in April 2001 (despite the increase in detection rates). Indeed, the success of the scheme drove many clandestine entrants onto the railways so that on 1 st March 2001 it was extended to cover rail freight arrivals, and on 1 st October 2001 Eurotunnel's freight shuttle.
2. By these proceedings four groups of lorry drivers and haulage companies, some 50 in all, challenge the lawfulness of the scheme and the Home Secretary's decisions that they are liable for penalties under it. On 5 th December 2001, following an eight-day hearing of preliminary issues in October, Sullivan J upheld the challenge, declaring the legislation: a) incompatible with Article 6 of the Convention and Article 1 of the First Protocol to the Convention (pursuant to section 4 of the Human Rights Act, 1998); and b) inconsistent with Community law as comprising unjust restrictions on the free movement of goods and the right to provide haulage services contrary, respectively, to Articles 28 and 49 of the EC Treaty. Now before us is the Home Secretary's appeal against that order, brought by permission of the judge below.
3. Sullivan J's reserved judgment, right or wrong, is a tour de force. It extends to 131 pages of which the first 96 contain a masterly exposition of the relevant facts, law and argument, detailed yet incisive. I cannot improve upon it, and shall instead confine myself to setting out the most essential provisions of the legislation (itself occupying eight pages of the judgment) and the barest outline of the facts before turning to the central issues and the judge's conclusions upon them.
4. The 1999 Act
“32(1) A person is a clandestine entrant if—
(a) he arrives in the United Kingdom concealed in a vehicle, ship or aircraft,
(b) he passes, or attempts to pass, through immigration control concealed in a vehicle, or
(c) he arrives in the United Kingdom on a ship or aircraft, having embarked—
(i) concealed in a vehicle; and
(ii) at a time when the ship or aircraft was outside the United Kingdom,
and claims, or indicates that he intends to seek asylum in the United Kingdom or evades, or attempts to evade, immigration control.”
Section 32(2), (3) and (4) (in combination with the relevant Regulations) provide that the person(s) responsible for a clandestine entrant is (are) liable to a penalty of £2,000 in respect of each such entrant concealed in the transporter, which must be paid to the Home Secretary within 60 days of service of the penalty notice if the liability falls to be discharged. Section 32(5) and (6) identify the person(s) responsible for a clandestine entrant. In the case of a vehicle or trailer this is the owner, hirer, driver or operator.
“32(7) Subject to any defence provided by section 34, it is immaterial whether a responsible person knew or suspected—
(a) that the clandestine entrant was concealed in the transporter; or
(b) that there were one or more other persons concealed with the clandestine entrant in the same transporter.”
5. Section 33 provides for a code of practice to be issued by the Home Secretary, after consultation, for approval by both Houses of Parliament. This code is to be followed by anyone operating a system for preventing the carriage of clandestine entrants and is to be taken into account when determining whether such a system is effective in the context of any defence under section 34. The code of practice was brought into force by Order on 3 rd April 2000.
“34(1) This section applies if it is alleged that a person (‘the carrier’) is liable to a penalty under section 32.
(2) It is a defence for the carrier to show that he, or an employee of his who was directly responsible for allowing the clandestine entrant to be concealed, was acting under duress.
(3) It is also a defence for the carrier to show that—
(a) he did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the transporter;
(b) an effective system for preventing the carriage of clandestine entrants was in operation in relation to the transporter; and
(c) that on the occasion in question the person or persons responsible for operating that system did so properly.
(4) In determining, for the purposes of this section, whether a particular system is effective, regard is to be had to the code of practice issued by the Secretary of State under section 33.
(5) If there are two or more persons responsible for a clandestine entrant, the fact that one or more of them has a defence under subsection (3) does not affect the liability of the others.
…
35(1) If the Secretary of State decides that a person (‘P’) is liable to one or more penalties under section 32, he must notify P of his decision.
(2) A notice under subsection (1) (a ‘penalty notice’) must—
(a) state the Secretary of State's reasons for deciding P is liable to the penalty (or penalties);
(b) state the amount of the penalty (or penalties) to which P is liable;
(c) specify the date before which, and the manner in which, the penalty (or penalties) must be paid; and
(d) include an explanation of the steps—
(i) that P must take if he objects to the penalty;
(ii) that the Secretary of State may take under this Part to recover any unpaid penalty.
…
(6) If a person on whom a penalty notice is served, or who is treated as having had a penalty notice served on him, alleges that he is not liable for one or more, or all, of the penalties specified in the penalty notice, he may give written notice of his allegation to the Secretary of State
(7) Notice under subsection (6) (‘a notice of objection’) must—
(a) give reasons for the allegation; and
(b) be given before the end of such period as may be prescribed.
(8) If a notice of objection is given before the end of the prescribed period, the Secretary of State must consider it and determine whether or not any penalty to which it relates is payable.
…
(10) Any sum payable to the Secretary of State as a penalty under section 32 may be recovered by the Secretary of State as a debt due to him.
…
36(1) If a penalty notice has been given under section 35, a senior officer may detain any relevant—
(a) vehicle,
(b) small ship, or
(c) small aircraft,
until all penalties to which the notice relates, and any expenses reasonably incurred by the Secretary of State in connection with the detention, have been paid.
(2) That power;
(a) may be exercised only if, in the opinion of the senior officer concerned, there is a significant risk that the penalty (or one or more of the penalties) will not be paid before the end of the prescribed period if the transporter is not detained; and
(b) may not be exercised if alternative security which the Secretary of State considers is satisfactory, has been given.
…
(4) The detention of a transporter under this section is lawful even though it is subsequently established that the penalty notice upon which the detention was based was ill-founded in respect of all or any of the penalties to which it related.
(5) But subsection (4) does not apply if the Secretary of State was acting unreasonably in issuing the penalty notice.
37(1) This section applies if a transporter is detained under section 36.
(2) The person to whom the penalty notice was addressed, or the owner or any other person claiming an interest in the transporter, may apply to the court for the...
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