England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HH Judge Bailey
3UB02139

		Royal Courts of Justice Strand, London, WC2A 2LL
		19.4.2016

Lord Justice Simon:

Introduction

1. On 14 May 2013 a heavy goods vehicle, operated by the First Appellant ('the Owner') and driven by the Second Appellant ('the Driver'), was searched by Authorised Search Officers in the UK Immigration Control Centre at Calais where three Afghan nationals were discovered in the trailer. Following this discovery the Respondent ('the Secretary of State') imposed civil penalties on the Owner (£900) and the Driver (£600) under the provisions of the Immigration and Asylum Act 1999 ('the 1999 Act').
2. That decision was challenged by way of appeal to the Central London County Court and, on 30 October 2014, His Honour Judge Bailey dismissed those appeals. The Appellants appeal against that decision.

The uncontroversial facts

3. The Owner is a freight company incorporated in Romania and the Driver is one of its employees. The Owner agreed to carry a consignment of copper wire from Osnabrück in Germany to a destination in the United Kingdom. The Driver picked up the consignment during the afternoon of 13 May 2013 and stopped for the night in Belgium. On the following morning he continued his journey to Calais, with a view to crossing the Channel by ferry during the afternoon. The lorry and trailer arrived at the UK Control Zone at the Port of Calais at a time which was recorded as being 9.50 am and was searched by Authorised Search Officers with dogs. They discovered three people concealed among the copper wiring in the trailer. It appeared that they had entered the trailer through a cut in the canvas roof.

The relevant provisions of the 1999 Act

4. Section 32 provides

(1) A person is a clandestine entrant if -

...

(b) he passes, or attempts to pass, through immigration control concealed in a vehicle, or

…

and claims, or indicates that he intends to seek, asylum in the United Kingdom or evades, or attempts to evade, immigration control.

(2) The Secretary of State may require a person who is responsible for a clandestine entrant to pay -

(a) a penalty in respect of the clandestine entrant,

(b) a penalty in respect of any person who was concealed with the clandestine entrant in the same transporter …

…

(6) In the case of a clandestine entrant to whom subsection (1)(b) … applies, each of the following is a responsible person -

(a) if the transporter is a detached trailer, the owner, hirer or operator of the trailer;

(b) if it is not, the owner, hirer or driver of the vehicle.

…

(7) Subject to any defence provided for 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 was one or more other person concealed with the clandestine entrant in the same transporter.

…

(10) 'Immigration Control' means the United Kingdom immigration control and includes any United Kingdom immigration control operated in a prescribed control zone outside the United Kingdom.

5. Section 34 of the 1999 Act sets out the statutory defences to the imposition of penalties. For present purposes it is only necessary to refer to two of the provisions.

…

(3) It is 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.

6. The Secretary of State has issued a code of practice for vehicles pursuant to the terms of s.33 of the 1999 Act ('the 1999 Code'), as well as a further code of practice issued under s.32A of the 1999 Act in relation to the level of penalties ('2002 Code').
7. The 1999 Code of Practice sets out measures to be taken and steps to be followed by persons operating a system for preventing the carriage of clandestine entrants to the United Kingdom, and provides that a 'prescribed control zone' means 'a control zone prescribed by regulations made by the Secretary of State.' Part 1 of the 1999 Code applies to road haulage and paragraph 1.2 sets out:

Measures to be taken immediately prior to the vehicle boarding the ship … or train to the United Kingdom, or before arrival at the UK immigration control operated in a prescribed control zone outside the United Kingdom.

8. These measures include, at paragraph 1.2.3:

Check the outer shell/fabric of the vehicle for signs of damage or unauthorised entry, paying particular attention to the roof, which may be checked from either inside or outside the vehicle.

9. Section 35A of the 1999 Act sets out the process of appeal from the Secretary of State's decision to impose a penalty, on the grounds either that there was no basis for the imposition of a penalty or that the level of penalty was too high.

…

(2) On an appeal under this section 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 under this section shall be a re-hearing of the Secretary of State's decision to impose a penalty and shall be determined having regard to -

(a) any code of practice under s.32A which has effect at the time of the appeal,

(b) the code of practice under s.33 which had effect at the time of the events to which the penalty relates, and

(c) any other matters which the court thinks relevant (which may include matters of which the Secretary of State was unaware).

The challenge before HH Judge Bailey

10. The imposition of penalties was challenged by the Appellants on three bases.
11. The first argument was based on the interpretation of s.32(1) of the 1999 Act. The Appellants argued that the statute required the Secretary of State to prove two distinct matters: (i) that the three people had attempted to pass through immigration control concealed in a vehicle and (ii) that they were evading or attempting to evade immigration control.
12. Secondly, it was argued that the Secretary of State had failed to prove that the place where the three people had been found was an area of 'Immigration Control' within the meaning of s.32(10) of the 1999 Act.
13. Thirdly, the Appellants relied on the statutory defence under s.34(3) of the 1999 Act: (a) the Driver did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the transporter; (b) the Owners had an effective system for preventing the carriage of clandestine entrants in the vehicle at the time; and (c) on the occasion in question the Driver, as the person responsible for operating the system, did so properly.
14. The Judge set out the brief facts as I have outlined them above, while noting that the penalty of £300 per entrant was 'relatively modest in the circumstances.'
15. So far as the first argument was concerned, the Judge dealt with the matter shortly at [6] of his judgment:

It seems to me that a person who conceals himself in a vehicle and makes absolutely no attempt whatever when the vehicle stops to make his presence known is at one [and] the same time both attempting to pass through immigration control and is also attempting to evade immigration control. There is no need, in my judgment, for there to be some separate action to demonstrate attempting to evade immigration control. The fact that the person concerned has concealed himself amongst a large quantity of copper wiring is clear evidence, it seems to me, of attempting to evade immigration control. The fact that in that situation he is also passing through immigration control simply shows that both elements of the requirement for s.32(1) are made out.

16. As to the Appellants' second argument, the Judge noted (at [10]) what was common ground before him: namely, that Calais was not 'a prescribed controlled zone outside the United Kingdom' within the meaning of s.32(10) of the 1999 Act. However, he found that the Berthside 9, Lane 907, where the lorry was stopped constituted 'immigration control' for the purposes of s.32(1) of the 1999 Act.
17. The Judge expressed some surprise that there was no 'clear specific evidence' that Berthside 9, Lane 907 at Calais was a prescribed immigration control area; and the Secretary of State has belatedly recognised that her concession that the Port of Calais was not a prescribed controlled zone was wrongly made. On her behalf, Mr Riley-Smith QC and Ms Cohen (neither of whom appeared below), seek to correct what they characterise as a 'mistaken concession', and to put before the Court material which shows that the Port of Calais is in fact a prescribed control zone for the purposes of the 1999 Act.
18. In a later part of his judgment the Judge dealt with the Appellants' third argument which relied on the statutory defence under s.34 of the 1999 Act. He referred to a document, entitled, 'vehicle security checklist', published by the UK Border Agency, which was designed to ensure that appropriate checks were made during the carriage of consignments and that such checks were recorded.
19. The form that was completed in the present case indicated that an initial check was carried out after the loading of the consignment on 13 May, at a first (untimed) stop on 14 May and at a second stop on 14 May (timed at 09.29). The Driver had ticked the boxes in relation to each of these checks to indicate that the specific checks had been carried out. Relevant for present purposes were the ticks which indicated that on each inspection the roof was undamaged.
20. There was also a column headed 'final check', which had not been completed.
21. The Judge found that there had not been a final check before the vehicle entered the UK control zone, and that the vehicle security checklist indicated that such a check should have been made:

If travelling through Calais, Coquelles or Dunkirk the final check should be carried out before entering the UK control zone ...

22. It appears, and the Judge accepted, that the last check had been carried out during the second stop and that this was to be treated as the 'final check' for the purposes of the 'vehicle security checklist'.
23. One of the issues which was plainly of concern to the Judge was the point at which the second (and, in the event, last) check had been carried out. His view was that it had been carried out at 09.29 and that the time at which the vehicle was checked by UK Immigration Control had been 09.50. On this basis he concluded that the vehicle could have travelled an appreciable distance in this period and that consequently the final check had not been carried out 'before entering the UK control zone.' He decided that the Driver (as the person operating it) had not operated the system properly. As he put it, at [24], 'Had anybody looked at the roof immediately before the trailer entered the control zone they would have seen the slit in the roof.'
24. For reasons which I will come to, in my view the Judge took a view of the documentary evidence which was over-generous to the Appellants in relation to the time and distance travelled by the vehicle between the point at which the last check was carried out and the point at which it was inspected by UK Immigration Control.

The applications

25. There are two applications before the Court: an application by the Appellants for leave to rely on further evidence as to the current conditions faced by hauliers and drivers when transporting goods by road through Calais; and an application by the Secretary of State to withdraw the concession that the place where the vehicle was stopped by UK Immigration Control was not a prescribed control area.

The Appellants' application

26. The Appellants produced a bundle of news reports about the conditions at Calais which they invited the Court to receive under CPR Part 52.11(2)(b). Mr Saini submitted that this material furthered the overriding objective set out in CPR Part 1.1, and that its admission was consonant with the well-established principles which apply to the receipt of fresh evidence, see Ladd v. Marshall [1954] 1 WLR 1489: the evidence could not have been obtained with reasonable diligence for use at trial; if available at trial it would probably have had an important (although not necessarily decisive) influence on the result of the case; and the evidence was apparently credible.
27. Mr Saini further submitted that since the Court has not considered the issue of statutory penalties in this type of case for a number of years it should be aware of current events so that it would not have to consider the issues which arise on this appeal 'in a vacuum'.
28. The Court refused the Appellant's application and indicated that it would give its reasons later.
29. In my view there were a number of reasons why it would have been wrong to admit the material. First, it did not shed any significant light on the issues the Court had to decide. The relevant provisions of the 1999 Act, the 1999 Code and the Owner's vehicle security checklist are all premised on the problem of clandestine entrants seeking to evade immigration control by taking steps to enter and conceal themselves within heavy goods vehicles. Secondly, it did not add anything to the relevant background, accepted by the Judge in the present case, that the three people found hiding in the trailer had entered by cutting through the tarpaulin roof. Finally, I am not persuaded that the material was (strictly speaking) in evidential form, consisting as it did of a number of news reports copied from the internet.

The Secretary of State's application

30. As set out above, the Secretary of State now wishes to correct what she says was a mistake, common to both parties but which Mr Riley-Smith was bound to accept was primarily the fault of her representatives, since the relevant Regulation is a Home Office Regulation.
31. It is now apparent, and Mr Saini very sensibly concedes, that Regulation 5(1) of the Carriers' Liability Regulations 2002 (the '2002 Regulations'), which came into force on 1 March 2004, provides that the Port of Calais is a prescribed control zone for the purposes of the 1999 Act.

5.  Clandestine entrants: prescribed control zone

(1)     The following control zones outside the United Kingdom are prescribed for the purposes of section 32(10) of the Act—

(a)     that part of the territory of France situated at Coquelles which is a control zone for the purposes of the International Articles or the Tripartite Articles; and

(b)     that part of the territory of France within a port designated in Schedule to the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003 in which immigration officers exercise immigration control pursuant to the Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the French Republic concerning the Implementation of Frontier Controls at the Sea Ports of Both Countries on the Channel and North Sea.

32. The list of designated ports in Schedule 1 to the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003 (the '2003 Order') includes Calais.
33. Mr Riley-Smith referred to a number of cases in which the courts have described the extreme caution that must be exercised before a party will be permitted to withdraw a concession made in the Court below, see for example: Jones v MBNA [2000] EWCA Civ 514, Peter Gibson LJ at [38] and May LJ at [51]-[52], Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40, [2002] 1 WLR 3024, 3034. Lord Bingham at [21], Paramount Export Ltd (in Liquidation) v New Zealand Meat Board [2004] UKPC 45, Lord Hoffmann at [47].
34. In Crane (t/a Indigital Satellite Services) v Sky In-Home Limited [2008] EWCA Civ 978, Arden LJ summarised the position at [22]:

The circumstances in which a party may seek to raise a new point on appeal are no doubt many and various, and the court will no doubt have to consider each case individually. However, the principle that permission to raise a new point should not be given lightly is likely to apply in every case, save where there is a point of law which does not involve any further evidence and which involves little variation in the case which the party has already had to meet (see Pittalis v Grant [1989] QB 605). (If the point succeeds, the losing party may be protected by a special order as to costs.) Sometimes a party will seek to raise a new point because of some other development in the law in other litigation, which he could not fairly have anticipated at the time of the trial. In some cases, the court may wish to take into account the importance of the point raised. Likewise, in [Paramount Export], one of the factors which influenced the Privy Council was the fact that it was in the public interest to allow a public body, which would otherwise end up liable to pay large sums, to raise on appeal a point of construction involving no new evidence.

35. In the present case, it is, at the very least, highly unfortunate that neither party drew the relevant Regulations and Order to the attention of the Judge. Despite his doubts, both counsel repeatedly assured him that there was no relevant regulatory provision. The concession did not affect the evidence that was relied on, did not form the basis of an unfavourable judgment and its withdrawal does not require any further evidence.
36. In these circumstances, I am quite clear (subject to any material issue of costs) that this Court ought to proceed on the basis of the law as it is and not as it was wrongly supposed to be.

The first ground: 'clandestine entrant'

37. For the Appellants Mr Saini repeated the submission that he had made to the Judge below: that the definition of 'clandestine entrant' in s.32(1) involved two separate elements so far as the present case is concerned: (a) an attempt to pass through immigration control while concealed and (b) an attempt to evade immigration control.
38. While I accept that both elements are required, like the Judge, I am quite satisfied that both elements were present on the facts of the present case. The three people were concealed in the trailer behind the load and were, thereby, both attempting to pass through and attempting to evade immigration control. I reject the argument that the second element of the offence has to occur subsequently to the first element in order for the stowaways to fall within the description of clandestine entrants.

The second ground: Prescribed Control Zones

39. The Appellants objected to the concession being withdrawn, but did not otherwise make submissions on the effect of Regulation 5(1) of the 2002 Regulations and Schedule 1 of the 2003 Order.
40. It is now clear that the relevant events took place at Immigration Control within a prescribed control zone. In these circumstances, the argument on the second ground must fail.

The third ground: the Statutory Defences

41. Mr Saini submitted, by reference to s.34(3) of the 1999 Act, that the Appellants (a) did not know, and had no reasonable grounds for suspecting, that clandestine entrants were or might have been concealed in the trailer, (b) had an effective system for preventing the carriage of clandestine entrants, and (c) on the occasion in question the Driver operated the system properly.
42. The evidence produced by the Appellants from GPS tracking showed that the second (and last) check was carried out in Belgium after the vehicle had travelled approximately 445 kms on its journey from Osnabrück, and that the vehicle reached the UK Immigration Control at Calais having travelled approximately 548 kms from Osnabrück (approximately 103 kms further). The Judge assumed that the time taken between the last check and entering UK immigration control was approximately 21 minutes and this mistake was probably due to the different time zone (BST) within the UK Immigration Control area. However, whatever the reason, the evidence is clear: the last check of the vehicle took place over 100 kms from Calais.
43. Mr Saini submitted that it was immaterial where the last check was carried out provided it satisfied the s.34(3)(b) test of being part of an effective system for preventing the carriage of clandestine entrants.
44. It seems to me that there are a number of problems with this submission. First, although paragraph 1.2 of the 1999 Code could have been better expressed, the intent is clearly that the checks described at paragraph 1.2.3 (including inspection of the roof) should be carried out immediately prior to the vehicle boarding the ship or train, and (where applicable) immediately before arrival at the UK Immigration Control. Secondly, the printed form of the Owner's vehicle security checklist envisages a 'Final Check' which was plainly not carried out in the present case.
45. In my view the Appellants' contention, that a system which involved a last check which was carried out over 100 kms from UK Immigration Control constituted an effective system for preventing the carriage of clandestine entrants, is unsustainable; as is the contention that the Driver operated the system properly.
46. For these reasons, which are elaborations of the Judge's conclusion on the point, I reject the Appellants' third ground. In these circumstances it is unnecessary to say anything further about the Judge's doubts as to whether the checks which were said to have been carried out at the last stop had in fact been carried out.

Conclusion

47. For these reasons I would dismiss the appeal.

Lady Justice King

48. I agree.

Lady Justice Gloster

49. I also agree.