Yadly Marketing Company Ltd v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lord Justice Henderson,Lady Justice Arden |
| Judgment Date | 23 November 2016 |
| Neutral Citation | [2016] EWCA Civ 1143 |
| Docket Number | Case No: B2/2015/0324/CCRTF |
| Court | Court of Appeal (Civil Division) |
| Date | 23 November 2016 |
[2016] EWCA Civ 1143
Lady Justice Arden
Lord Justice Beatson
and
Lord Justice Henderson
Case No: B2/2015/0324/CCRTF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Canterbury Combined Court Centre
His Honour Judge Murdoch QC
A00CT399
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Arfan Khan and Mr Tiki Emezie (Solicitor/Advocate) (instructed by Dylan Conrad Kroelle Solicitors) for the Appellant
Mr James Chegwidden (instructed by Government Legal Department) for the Respondent
Hearing dates: 8 November 2016
Approved Judgment
I. Introduction and statutory context:
The appellant, Yadly Marking Company Limited, appeals the order dated 21 November 2014 made by His Honour Judge Murdoch QC in the County Court at Canterbury striking out its notice of appeal against the imposition of a civil penalty as being out of time. The judge also dismissed the appeal, refused the appellant permission to appeal to this court, and ordered it to pay the costs of the Secretary of State for the Home Department, the respondent. On 31 July 2015 Lady Justice Arden granted the appellant an extension of time and permission to appeal. 1.
The appeal concerns the correct approach to the computation of a statutory period for the bringing of an appeal and the circumstances in which the appeal can be considered where it is filed after the number of days specified in the statute. In this case the provision is section 17 of the Immigration and Nationality Act 2006 ("the 2006 Act"). That provides for an appeal against a civil penalty imposed on an employer who has employed individuals whose immigration status is irregular or are not permitted to be so employed to be brought within 28 days of a number of specified dates. In this case the last day of the specified period fell on a bank holiday Monday when court offices are closed. 2.
The provisions conferring the power to levy a civil penalty on employers who employ persons who do not have the appropriate leave and have not complied with the prescribed monitoring requirements in relation to the employment and to object to such a penalty are in sections 15 and 16 of the 2006 Act. Section 16 (1) – (3) gives an employer served with a civil penalty notice the right to give a notice of objection to the Secretary of State on the ground that he is not liable to the penalty, is excused because he complied with the prescribed requirements, or because the amount of the penalty is too high. Section 16(4) requires the Secretary of State to consider the notice and to cancel the penalty, reduce it, increase it, or determine to take no action. By section 16(5)(c) if the Secretary of State increases the penalty he must issue a new penalty notice under section 15, and by section 16(5)(d) if he reduces the penalty he must notify the objector of the reduced amount. 3.
It is only necessary to set out the material parts of section 17(4) and (6) of the 2006 Act. By section 17(4): 4.
"An appeal must be brought within the period of 28 days beginning with–
(a) the date specified in the penalty notice as the date upon which it is given, or
(b) if the employer gives a notice of objection and the Secretary of State reduces the penalty, the date specified in the notice of reduction as the date upon which it is given, or
(c) if the employer gives a notice of objection and the Secretary of State determines to take no action, the date specified in the notice of that determination as the date upon which it is given."
In this case the material provision is section 17(4)(b). Section 17(6) provides that:
"Where the employer has his principal place of business in England and Wales", "the court" means "a county court".
Section 17(4) of the 2006 Act was amended by the Immigration Act 2014, but the amendments do not affect this appeal because the civil penalty in this case was imposed before 28 July 2014.
II The factual and procedural background
On 21 January 2014 immigration officers visited the appellant's premises and the Home Office's Civil Penalty Compliance team notified it of a potential liability in respect of six employees who were stated to be over-stayers. On 21 March 2014 the Civil Penalty Compliance team, acting on behalf of the Secretary of State, issued a civil penalty notice for a total penalty of £30,000, listing six employees who were working without appropriate leave. The notice stated that any objection to the penalty and any appeal against it had to be received or brought before 21 April 2014. 5.
On 11 April 2014 the appellant filed a notice of objection and, on 25 April, the Secretary of State issued an amended notification of liability reducing the total penalty to £20,000. She did so because she accepted that the appellant was responsible for employing only 5 workers and because she reduced the penalty for 2 of them to £2,500 each. A covering letter gave reasons for the decisions but only dealt with one of the two individuals whose penalty was reduced. It stated that the penalty of that person was reduced because it was accepted that initial checks undertaken by the appellant about that person were a partial document check. The penalty notice stated that it was sent on 25 April 2014, was deemed to be given on 29 April 2014, and that any appeal had to be brought on or before 26 May 2014. In fact, 26 May 2014 was a bank holiday Monday when court offices were closed. 6.
Before dealing with the appellant's attempt to lodge its notice of appeal, I refer to a letter dated 21 May 2014 in which the appellant's solicitors made further representations about issues that they argued the Secretary of State had failed to take account in her decision letter dated 25 April 2014. The solicitors stated that they were instructed to file an appeal by the deadline if they did not receive a satisfactory response by close of business on Monday 26 May 2014. They did not receive a reply to the letter dated 21 May 2014 until long after the expiry of the time for appealing. The reply to that letter was in a letter from the Civil Penalty Enforcement Team dated 1 July 2014. 7.
The summary of the facts in the next two paragraphs is largely taken from [5], [6] and [12] of the judgment below. As the judge at [6] said, there was no witness statement from the appellant's director and he proceeded on the basis of what Mr Emezie who appeared on behalf of the appellant below, said about what occurred. During the hearing before us, Mr Emezie, informed us of what he had said to the judge. I refer to the evidential position below. 8.
After sending the letter dated 21 May 2014, it appears that the appellant and its solicitors took no further steps to file the appeal before 26 May. As that day was a bank holiday when court offices were closed it was not able to file its appeal. But on the next morning, 27 May 2014, on the advice of Mr Emezie, the appellant's managing director attempted to issue the appeal at the Edmonton County Court. The Court, however, refused to accept the appeal and an official informed the managing director that the appropriate place to issue it would be an Immigration Tribunal. This was a mistake. As I have stated, section 17(6) of the 2006 Act clearly provides that employers with their principal place of business in England and Wales were to bring appeals in a county court. The appellant made a further attempt to issue the appeal at the Edmonton County Court on 28 May but was again refused. 9.
The appellant's solicitors then posted the Appellant's Notice to the Canterbury County Court where the papers arrived and the appeal was lodged on 30 May 2014. The box in section 5 indicating that the Appellant's Notice was lodged with the Court in time was ticked. No application was made for an extension of time for filing and no reasons for not being in time were given. On 1 July 2014 HHJ Scarratt of his own motion issued directions in the case including listing the appeal hearing for 21 November 2014. In an Application Notice dated 6 November 2014 the Secretary of State applied for the Appellant's Notice to be struck out as out of time. She did so on the ground that there was no power to extend time, either in the 2006 Act or in the Rules of Court, and also submitted there were no exceptional circumstances, and that the court had no jurisdiction to hear the appeal. 10.
III The judgment below
The learned judge accepted the Secretary of State's submission that the notice be struck out as out of time. He referred to section 17(4) of the 2006 Act and to the fact that there is no provision in the statute for the extension of time permitted for appealing: see [3] and [4]. He also referred to the decision of the Supreme Court in four extradition appeals, known by the name of the appellant in the lead case, Pomiechowski v. The District Court of Legnica Poland [2012] UKSC 20 reported at [2012] 1WLR 1604. He stated that it was plain from that case and a number of authorities stemming from it "that there is discretion pursuant to the provisions of the Human Rights Act 1998 to allow appeals to be brought out of time in cases where a litigant personally has done all that he can to bring and notify the appeal timeously. It requires the establishment of exceptional circumstances." Later in his judgment, at [12], he referred to the decision of this court in R (Adesina) v Nursery and Midwifery Council [2013] EWCA Civ 818 reported at [2013] 1WLR 3156.
The judge stated (at [7]) that the 28 day period fixed by the 2006 Act expired on Monday 26 May 2014. He then considered CPR 2.8(5) which provides that where a period specified by the Rules or a Practice Direction or any judgment or court order ends on a day at which the court office is closed "the act shall be...
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