Secretary of State for the Home Department v Mohammed Akbar
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston,Lord Justice McFarlane,Lady Justice Arden |
| Judgment Date | 19 January 2017 |
| Neutral Citation | [2017] EWCA Civ 16 |
| Docket Number | Case No: B2/2015/3324 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 January 2017 |
[2017] EWCA Civ 16
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT OLDHAM
DISTRICT JUDGE FOX
[2015] EWHC 2990
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice McFarlane
and
The Hon. Mr Justice Cranston
Case No: B2/2015/3324
Mr James Chegwidden (instructed by the Government Legal Department) for the Appellant
Mr Sohail Mohammed (instructed by Kingstons Solicitors) for the Respondent
Hearing date: 15 December 2016
Introduction
This is an appeal by the Secretary of State for the Home Department (“the Secretary of State”) against a decision of District Judge Fox of 21 September 2015. Sitting in the Oldham County Court the judge allowed a statutory appeal by Mr Mohammed Akbar against a decision by the Secretary of State to impose a civil penalty on him under section 15 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”) for employing illegal workers. The judge did this on the basis of what he said were serious procedural failings by the Secretary of State in the conduct of the appeal before him.
In my view the judge was in error to allow the appeal without examining the nature of the Secretary of State's procedural failings and the reasons for them. If there had been serious procedural failings – I do not think that there were — the judge should have considered whether other courses were open to him and whether allowing the appeal was a proportionate response when compared with the magnitude of the Secretary of State's mistakes.
I have some sympathy for the judge in light of the situation he faced on 21 September. He had a heavy list and it soon became evident that Mr Akbar's appeal would not proceed smoothly, if at all. Despite the best efforts of counsel for the Secretary of State, the judge was misled as to the nature and extent of her procedural failings.
At the outset of the hearing before us, the Secretary of State raised the question of the jurisdiction of the Court of Appeal to consider her appeal. This was the first time she had appealed to this court from a judgment of the County Court after an employer had successfully challenged a civil penalty under the 2006 Act. There had been appeals to this court by those on whom civil penalties were imposed, such as in Yadly Marketing Co Ltd v. Secretary of State for the Home Department [2016] EWCA Civ 1143. Whether this court had jurisdiction to hear the appeal had not been considered in those cases. The Secretary of State was neutral on the issue (as was Mr Akbar) but she wanted guidance for the future since there was uncertainty amongst those practicing in the area.
Jurisdiction of Court of Appeal
As a preliminary matter the court decided that it has jurisdiction to hear appeals such as this from decisions of the County Court regarding civil penalties imposed under the 2006 Act. A county court decision in that regard is made on appeal so a second appeal lies to the Court of Appeal. In reaching this conclusion the court considered that the result is consistent with its earlier decisions on analogous statutory provisions, such as in Azimi v. Newham LBC (2001) 33 HLR 51 (appeal to this court from County Court: a person had appealed on a point of law under section 204 of the Housing Act 1996 to that court against a review decision by a local housing authority that his family was not homeless).
Appeals against decisions of the Secretary of State to impose a civil penalty under the 2006 Act are addressed by section 17 of that Act. It provides, in part:
“17. Appeal
(1) An employer to whom a penalty notice is given may appeal to the court on the ground that –
(a) he is not liable to the imposition of a penalty,
(b) he is excused payment by virtue of section 15(3), or
(c) the amount of the penalty is too high.
(2) The court may—
(a) allow the appeal and cancel the penalty,
(b) allow the appeal and reduce the penalty, or
(c) dismiss the appeal.
(3) An appeal shall be a re-hearing of the Secretary of State's decision to impose a penalty and shall be determined having regard to –
(a) the code of practice under section 19 that has effect at the time of the appeal (in so far as the appeal relates to the amount of the penalty), and
(b) any other matters which the court thinks relevant (which may include matters of which the Secretary of State was unaware);
and this subsection has effect despite any provision of rules of court.”
In broad terms section 17(4B) provides that an appeal must be brought within 28 days. “Court” for the purposes of an appeal when the employer has its principal place of business in England and Wales is the County Court: s. 17(6)(a). The ground referred to in section 17(1)(b), contained in section 15(3), is that:
“(3) An employer is excused from paying a penalty if he shows that he complied with any prescribed requirements in relation to the employment.”
In passing there are a number of points to note about section 17(1). First, it effectively limits the grounds of appeal and places the burden on an employer to demonstrate to the court that it is not liable, that it complied with the statutory requirements or that the penalty is too high. Although the burden is not on the Secretary of State to uphold the penalty notice, we were informed that in practice she produces the bundles and proceeds first at an appeal hearing. By setting out her case the first proceedings are more efficiently conducted. Secondly, the penalty remains payable until an employer's appeal is successful, although we were told that in practice the Secretary of State does not seek to enforce a penalty while an appeal is ongoing.
Section 17(3) makes clear that appeals by employers are by way of a rehearing, not a review, and that the County Court can consider all relevant matters, even if the Secretary of State was not aware of them at the time. In this regard the ordinary rules of court are disapplied. An appeal by way of rehearing is a reconsideration of the matter, on the evidence the Secretary of State considered, but with the statutory power to consider new matters as well: cf. Re Chenell, Jones v. Chennell (1878) 8 Ch D 492, at 504–505, per Jessel MR.
There is the limit to appeals posed by section 17(3)(a), that an appeal concerning the level of penalty must have regard to the relevant code made under section 19. That is the Code of Practice, Prevention of Illegal Working, Civil Penalties for Employers, which spells out how penalties are to be determined. There is no requirement that an employer must first obtain permission to appeal to the County Court. No indication is given in the statute whether the appeal to the County Court should be heard by a district judge or a circuit judge. Judicial allocation should take into account, however, that the next stop is the Court of Appeal.
Appeals to the County Court under section 17 of the 2006 Act are thus not on all fours with ordinary appeals under Part 52 of the Civil Procedure Rules (“the CPR”). Generally speaking these require permission to appeal; an application to appeal must be made within 21 days of the hearing; the appeal is by way of review, and oral evidence and evidence not before the lower court will not be considered: CPR 52.3(1), 52.4(2)(b), 52.11(1), 52.11(2). In other respects CPR Part 52 applies to section 17 appeals since “lower court” is defined in CPR r.52.1(3)(c) to include not only a court or tribunal but also an “other person or body from whose decision an appeal is brought”. Appeals from the decision of the Secretary of State to impose a penalty under the 2006 Act are within that definition.
As a second appeal, appeals against a decision of the County Court on a section 17 appeal are to the Court of Appeal: Access to Justice Act 1999 (Destination of Appeals) Order 2016, 2016 SI No 917, article 6 (for appeals such as this before 3 October 2016, Access to Justice Act 1999 (Destination of Appeals) Order 2000, 2000 SI 1071, article 5). This is the case even if, as here, the deciding judge is a district judge, not a circuit judge. A second appeal from a district judge elsewhere, with the possibility of a further appeal to this court, would run counter to the purpose of section 55 of the Access to Justice Act 1999, that one level of appeal is the norm: see Henry Boot Construction (UK) Ltd v. Malmaison Hotel (Manchester) Ltd [2001] QB 388, 399E–400G, per Waller LJ. Applications to this court to appeal a decision of the County Court regarding a penalty notice under the 2006 Act must obviously meet the stringent tests which ordinarily apply to second appeals.
The penalty notice in Mr Akbar's case
On 9 January 2015, the Secretary of State's Immigration Enforcement division issued Mr Akbar with a civil penalty notice (“the penalty notice”) under section 15 of the 2006 Act for employing two persons who were not entitled to work in the United Kingdom, Babar Hussain and Aneel Saddique. The penalty notice explained that in view of Mr Akbar's cooperation the amount of the penalty had been reduced to £20,000, and would be discounted further to £14,000 if paid within 21 days. Objections to the penalty notice, it said, should be sent to the Civil Penalty Compliance Team, PO Box 99, Manchester.
The penalty notice followed a visit by immigration enforcement officers to the International Chippy, Rochdale, on 7 November 2014, when they encountered Mr Hussain and Mr Saddique. When Mr Saddique was interviewed he conceded that he started working at the premises a month prior to the visit, from 08:30am to 10:00am, 6 days a week, his day off being Thursday. He was paid £220 per week in cash and his role was cleaning. He accepted that he did not have permission to work in the UK. The...
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