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Cite as: [2016] EW Misc B41 (CC)

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IN THE CENTRAL LONDON COUNTY COURT

No. B50CL042

Thomas More Building

Royal Courts of Justice

Strand

London

WC2A 2LL

Thursday, 21 ^st January 2016

Before:

HIS HONOUR JUDGE LOCHRANE

B E T W E E N :

RYANAIR LIMITED

Appellant

- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

_________

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_________

MR. M. DAVIDSON (instructed by Stephenson Harwood LLP) appeared on behalf of the Appellant.

DR. C. STAKER (instructed by the Government Legal Department) appeared on behalf of the Respondent.

_________

J U D G M E N T

JUDGE LOCHRANE:

1. On 26 ^th May 2015, two passengers arrived on flight FR6657 from Palma de Mallorca to Edinburgh Airport. One a gentleman called Tofik Murataj and the other a lady called Fatime Troka. They were both Albanian nationals. Unfortunately, they were travelling on Greek passports; passports in the names of Andreas Tsoukalas and Nikoleta Sianou. The passengers had passed through, it seems, the Spanish border police force on leaving Spain and they had passed through the hands of the Appellant's ground handling agents, known as Lesma, in Spain. Accordingly the passports which were presented had been inspected on no fewer than two occasions prior to them boarding the Appellant's aeroplane and no apparent irregularities had been noted on either occasion.

2. When the flights landed at Edinburgh Airport, the passports were inspected variously by Mr. Neil Allison, in respect of the passport that Mr. Murataj was carrying, and Louisa Cliff in respect of the passport Miss Troka was carrying. They were stopped at immigration control at Edinburgh Airport and these two inspectors were UK Border Force officers.

3. The reports of the two officers are contained in the bundle. At p.1 of bundle 1 is the report of Miss Cliff in respect of the passport presented by Miss Troka. In that report that the officer says,

"I immediately recognised this document was false because of the following: there was no colour shift with the word 'HELLAS' from green to blue when slightly tilting the passport, it was solid green at all angles. The partially concealed Greek flag at the top left-hand side of the passport did not complete to a whole flag when held up to the light. I observed both of these things without the use of technological aids".

She goes on to say that she concluded that, as a result, this was a false document and she says at the bottom of her report, "I considered the falsity of this document is reasonably apparent".

4. The report of Mr. Allison on Mr. Murataj's document is in almost identical terms. He says,

"I immediately recognised this document was false because of the following: there was no colour shift from green to blue on the word 'HELLAS' when the document was tilted slightly. It remained solid green at all angles. The partially concealed Greek flag at the top left-hand side of the passport biodata page did not complete to a whole image of the Greek flag when held up to the light. I observed both of these things without the use of technological aids. I consider the falsity of this document is reasonably apparent."

5. There is, I think, some relevance in that neither of these officers in their reports on the day suggest that they regard the apparent frequency of forgeries of Greek passports as being relevant to their comment that they considered the forgeries of the documents to be reasonably apparent.

6. The two specific issues identified in relation to both of these documents were that the word "HELLAS" did not exhibit what is known, as I understand it, as optical variable ink, that is a colour shift in the ink when the light varies on it and it is viewed at different angles, and the second is that there was a mismatch in the concealed Greek flag in the top left-hand corner of the biodata page. It is necessary, as was demonstrated to me, to hold the page up to the light and, when that exercise is carried out, there is a small rectangular section at the top left-hand corner of the biodata page, which, when viewed in those circumstances, changes from - I cannot remember what it is when not exposed to the light - but it reveals a facsimile of the Greek flag. For what it is worth, and it is not worth much, it took me a little bit of time to spot it even though I had pointed out to me what I was supposed to be looking for.

7. There is some suggestion that on closer examination by the Border Force officers these passports, or these purported passports, demonstrated some other evidence of irregularities, but it is not suggested by the Secretary of State that she relies upon any of those apparent issues to sustain the suggestion that the Appellant in this case should be liable to the penalty which was raised in respect of these documents.

8. It is accepted on both sides that these two documents fall to be considered effectively in the same terms, because, albeit that the passport presented by Miss Troka is no longer available, I think that it is accepted on behalf of the Appellant that the problems which were identified as I have already indicated from the officers' reports were basically the same in both the documents.

9. Following the detention of these two Albanian nationals at Edinburgh Airport and whatever consequent dealings there were, Mr. Murataj remained in the country - whether he is still in the country or not I do not know - under some attempt by him to obtain entry by other means, and Miss Troka was returned to Spain. Those are not, I think, relevant features for the purposes of this appeal.

10. Following their detention, on 30 ^th June there was a charge notice raised under s.40 of the Immigration and Asylum Act 1999 in respect of each of these passengers against the Appellant, Ryanair, of £2,000, a total of £4,000.

11. The Immigration Department of Ryanair subsequently made representation to the chief immigration officer, in this case a lady called Sarah Drum . I think I was told that there is, in fact, a statutory right to make such a representation, although I have not actually been shown the specific statutory authority for that. Nonetheless, a representation was made to the chief officer, Sarah Drum and she, in her turn, confirmed the applicability of the £2,000 charges in respect of each of these documents. It is a little unclear to me, as I have said, what the status of that review is in regulatory or statutory terms, but, nonetheless, what is clear is that that review was carried out by the chief immigration officer without any independent review by her of the evidence upon which the original decisions were made. It is explicitly stated that she did not view the documents themselves and came to her review decision simply, I think, on the basis that she confirmed what the immigration officers on the ground had concluded. She does, however, at p.26 of bundle 1 - in her decision letter, dated 28 ^th August - add to the comments made by the immigration officers on the ground and says that she has had the opportunity to review the cases. "Greek passports", she says, "are a well-known high-risk document and the colour shift in 'HELLAS' is a clear visual indicator of the authenticity of a Greek passport that I would expect a check-in agent to be able to identify during the course of a brief but careful examination without the need for technological aids." She goes on to make the point that the ground handling agent, Lesma, receives refresher training on an annual basis. She says, "I would expect them to be aware of the risks with Greek passports and seek verification, either through the Ryanair offices or via RALON officials based in Spain for this purpose", RALON, I think, being a governmental organisation.

12. What is of relevance and interest in the context of that review, insofar as it was a review, is that Miss Drum explicitly excludes from her résumé of the evidence which she considers supports the s.40 charge, any reference to the Greek flag issue in the top left-hand corner of the biodata page.

13. The statutory regime evidently entitles the charged carrier to appeal to the County Court and it is that appeal which is before with the evidence heard last week. Both parties have produced very helpful skeleton arguments and it is extremely helpful that the Secretary of State has made a number of procedural concessions which clarify the basis upon which this appeal falls to be dealt. The Secretary of State accepts that this is a re-hearing of the original decision made by her and her officers to impose the £2,000 charges and that the appeal is to be determined or may be determined having regard to matters of which the Secretary of State and her officers were unaware at the time of the original decision. The Secretary of State further accepts for the purposes of these proceedings that the burden is on her to establish that the falsity of the documents was reasonably apparent in accordance with the statutory regime and that the burden of proof in the circumstances is the civil balance of probabilities.

14. As Dr. Staker, who appears on behalf of the Secretary of State, puts it in his skeleton argument, and I am sure that it is accepted on both sides, the question is whether the falsity of the passports in this particular case should have been reasonably apparent to the Appellant's agents in all the circumstances.

15. I am indebted to the advocates in this case, Mr. Davidson, who appears on behalf of the Appellant, Ryanair Limited, and Dr. Staker, who appears on behalf of the Secretary of State, for the helpful, careful and extremely professional way in which they have presented their respective cases and I am indebted to them both for the detailed and extremely helpful skeleton arguments.

16. I have heard and seen evidence from a number of witnesses from the Respondent's point of view. There are statements from Louisa Cliff, the inspecting officer who examined the document produced by Miss Troka, and a Mr. Kenneth Ward, also an immigration officer who is of a higher status and clearly carries out part of the training. Both of them, as I have said, produced statements and both of those individuals gave evidence before me in the witness box. In addition, there is a statement which I have read from Sarah Drum, who I have mentioned is the chief immigration officer who carried out the review. There is also a statement from James Casserly, who deals primarily, I think, with the circumstances surrounding the absence in evidence in this case of the passport document produced by Miss Troka. There is a statement from Catherine Elliott-Cullen, who deals with much of the evidence in relation to training provided by the Border Agency to ground handling agents around Europe and there is a statement from a Mr. Stephen Burns, who deals with general evidence of procedures, etc., surrounding circumstances such as these. The last four witnesses did not give evidence in the witness box.

17. The position taken by the Appellant in this case was that, whilst the view was taken that the factual evidence those witnesses gave did not necessarily need to be challenged, the conclusions to be drawn from that evidence, of course, were the subject of submissions.

18. In addition, for the Appellant I have heard from Mr. Federico Pastor, who is clearly the Deputy Head of the Immigration Affairs and Authority Liaison Department of Ryanair. There is a lengthy statement from Mr. Pastor in the bundle.

19. The law is comparatively straightforward. As I have said, it is accepted on both sides that the burden of satisfying the court of the reasonably apparent nature of these forged documents rests on the Respondent to this appeal, the Secretary of State, and the standard of proof to be applied is the civil standard on the balance of probabilities. It is accepted, as I have indicated, that the view of the Secretary of State is not determinative of the outcome of these proceedings in this court and, of course, it is open to this court to take into account matters which may not have been taken into account or may not even have been available to the Secretary of State and her officers when making the decisions which they made.

20. The applicable statutory basis for the raising of these charges is, as I have said, s.40 of the 1999 Immigration and Asylum Act which deals with charges in respect of passengers without proper documents. Section.40(1) reads:

"This section applies if an individual requiring leave to enter the United Kingdom arrives in the United Kingdom by ship or aircraft and, on being required to do so by an immigration officer, fails to produce—

(a) an immigration document which is in force and which satisfactorily establishes his identity and his nationality or citizenship, and

(b)if the individual requires a visa, a visa of the required kind."

Subsection (2) reads:

"The Secretary of State may charge the owner of the ship or aircraft, in respect of the individual, the sum of £2,000."

Subsection (4) reads:

"No charge shall be payable in respect of any individual who is shown by the owner to have produced the required document or documents to the owner or his employee or agent when embarking on the ship or aircraft for the voyage or flight to the United Kingdom."

Then subsection (5):

"For the purpose of subsection (4) an owner shall be entitled to regard a document as—

(a)being what it purports to be unless its falsity is reasonably apparent, and

b)relating to the individual producing it unless it is reasonably apparent that it does not relate to him."

That is the full extent, as I understand it, of the statutory basis for the raising of these charges.

21. There is, in addition, a relatively significant volume of Home Office guidance produced to support the operation of these provisions. The status of this guidance is extremely unclear to me. It is, however, accepted by the Appellant that this guidance is relevant to the determination of the issues which fall to be dealt with in this appeal. However, I make the point that there does not appear to be any statutory authority for the making of this guidance. There is no identification of the author of this guidance. There is no established basis in any regulatory or statutory framework for the assertions made.

22. The guidance, at least some of it, is helpfully provided to me in the bundles. At p.614 in bundle 3, there is a passage in a document, the status of which is unclear, entitled "Section 40 of the Immigration and Asylum Act 1999". There appears at 2.11 the passage which is headed, "False Document" and this guidance, as I understand it, was produced by the Secretary of State in December 2013. It says this,

"A passport or other immigration document which is forged or counterfeit. Where a person presents a false document, the carrier is liable to a charge only if the falsity is reasonably apparent. The falsity of a document is reasonably apparent, (there are quotation marks surrounding the next passage but there is no indication whatsoever from where this is a quote) "if it is of a standard which a trained representative of the carrying company examining it carefully but briefly and without the use of technological aids could reasonably be expected to detect. A trained representative would be expected to have a level of basic knowledge of how to identify false documents but not to be expert nor to have the resources for a highly-detailed examination".

This particular section goes on, but I do not think the rest of it is relevant.

23. That is a passage of guidance upon which the Secretary of State relies for the interpretation of the question of what is reasonably apparent and, as I have said, for better or worse, the Appellant accepts that that guidance has some direct relevance to this determination.

24. There is, however, in the bundle a further piece of guidance and that appears at p.627ff. It is once again produced by the Home Office, it is headed "Charging Procedure: a Guide for Carriers" and it refers directly to s.40 of the Immigration and Asylum Act 1999. All the points I have made about the other guidance seems to me apply also to this. There is no indication of the authority for it, its author or the basis for the assertions made. Nonetheless, and in the circumstances somewhat unhelpfully, it deals with the question of false documents at p.636 in the bundle, internal p.10 of that guidance. It says this:

"As a carrier you may be liable to a charge if a passenger presents a false passport or other document. However, you will not be liable where the falsity is not reasonably apparent."

Pausing there, it is, of course, somewhat unhelpful that the matter is put in a double negative, but, nonetheless, it goes on:

"The UK Border Force will consider a falsity as reasonably apparent 'if it were of a standard which a trained representative of the carrying company examining it carefully but briefly and without the use of technological aids could reasonably be expected to detect.'"

So far, apparently, compliant with the other guidance to which I have just referred. However, this guidance goes on to say,

"This means that you must be able to see the forgery with the naked eye without the use of any aids such as magnifying glasses, lights or other technical equipment. A trained representative means a check-in agent or other staff member working for you or your handling agents, who is expected to have a basic knowledge of how to identify false documents but not to be experts nor to have the resources for a highly-detailed examination."

25. Looking at just those guidance documents, it is I think immediately obvious that the apparent clarification contained in the second document simply adds to the level of confusion and difficulty which must be presented to those expected to implement this guidance on the ground, in particular, I have to say, given that many of them may well not have English as a first language or, indeed, any language at all. There is no clarification, for example, as to what is meant by magnifying glasses or lights and, certainly, on one interpretation, one might be expected to raise an eyebrow at the prospect that any shortsighted ground handling agent might feel expected to take his or her glasses off before examining a document of this kind. There is also some reference specifically to the use of lights not being expected which, of course, has some direct relevance to the suggestion that the falsity of these passports should have been detected by the Greek flag issue which, of course, is only observable, albeit with some difficulty, when light or a light is used to do so. In any event, those are the two specific pieces of guidance to which I have had my attention drawn and, as I have said, putting aside all the difficulties which it seem to me apply to their general status, they do not necessarily help much with an interpretation of what is meant by "reasonably apparent". There is, for example, no attempted definition for the assistance of those expected to implement this guidance on the ground as to what a basic level of knowledge of how to identify false documents actually means.

26. The mischief which it seems to me is easily discernible in this level of confusion is that s.40 of the Immigration and Asylum Act 1999, potentially, imposes a very significant penalty on individual citizens and there is, in fact, no proper statutory definition of what constitutes the offence, which, subsequently, raises the possibility of a penalty against the citizen. The suggestion provided by the legislators, without further definition, is that the penalty is to be applied where the falsity of the document is reasonably apparent. It is the State's function, ultimately, to protect the borders of this country and to regulate immigration and emigration. It is one of the fundamental functions of the State and one in respect of which, of course, there has been an enormous amount of legislation over the years.

27. There is inherently nothing remotely offensive, of course, in the State devolving to a certain extent to the individual citizen and corporate entities the functions which the legislature determines are appropriate for the regulation of emigration and immigration. In this case it seems that, in an effort to encourage compliance in what one would otherwise hope is primarily a collaborative effort to secure the borders, Parliament has taken the view that the stick is more appropriate than the carrot. Nonetheless, there does seem to be a general principle which ought to be applied and provide the background to consideration of statutory provisions such as this. It must be, if the State is to impose a penalty on a citizen, it is incumbent upon the legislators to define with some clarity the circumstances in which that penalty will be imposed in order that the averagely competent citizen may, without necessarily incurring significant legal expenses, readily understand the obligations and importantly what he or she should or should not do to avoid incurring such a penalty.

28. This is thrown in this case into fairly stark relief because there are, in fact, huge sums of money involved. It is apparent from the evidence I have heard that this applicant alone, Ryanair, has paid over some £400,000 odd in one year to the UK Treasury in respect of this particular provision. Allowing, of course, that the financial robustness of an airline like Ryanair cannot be compared necessarily to the impact of such legislation on an individual citizen, one must, of course, remember that, in theory at least, these charges might well apply to an individual citizen who transports another into the country by some means and fails to identify the falsity of travel documents which might otherwise be considered to be reasonably apparent. It seems to me there must be some relatively objective standard to be applied and, as I have said, that the State must make it reasonably apparent, at least to the averagely competent citizen, what must be done to avoid incurring such a penalty.

29. Ma ny thousands of travel documents are used by perfectly legitimate travellers the world over to move across the borders of a huge number of countries. The travel documents are not only extremely numerous, they fall into a huge variety of categories. The two basic types are identity cards and passports, but there are numerous other types of travel documents which are available legitimately to authorise cross-border travel, and within the sub-categories of passport documents there are wide variations. Indeed, the specific important security element identified in this particular case of the optical variable ink, I am told, appears in a number of different forms in 4,000 plus travel documents around the world, and those 4,000 documents, of course, form only a proportion of the number of otherwise legitimate travel documents. Accordingly, whilst optical variable ink appears in many thousands of legitimate documents in different forms, it also does not appear in many other entirely legitimate documents.

30. One has also to consider that there is a huge variety of individuals and agencies of various nationalities who are expected to implement this legislation with the prospect, at least, of some significant penalty insofar as they fail. When considering the basis upon which the guidance and/or the statutory authority to raise such charges is applied, one must have an eye to the fact that the command of English, and perhaps more importantly English law, may well be highly variable in those individuals and agencies.

31. The inspections required to identify the types of documents which fall foul of this piece of legislation must, of course, be carried out, inevitably, in a huge variety of environments; political, legal, geographical and, indeed, physical environments.

32. In all of these difficult circumstances, clearly, these individuals and organisations are expected to perform the devolved functions of the British State as imposed by the British Parliamentary authorities.

33. In all these circumstances, it seems to me, it is incumbent upon the UK Government to provide specific guidance as far as possible as to what the basic level of knowledge referred to in the current guidance actually is and what is expected of those implementing it. It is clear from the evidence that the UK Border Force (the UK Government) clearly does put significant resources into training foreign staff and providing monthly bulletins of frequently encountered problems. In the circumstances, as I think we canvased to some extent in the course of submissions, it is a little difficult to understand why it would be problematic for the British Border authorities, with some relatively specific reference to what is considered reasonably apparent for the purposes of this punitive legislation, to identify in those training sessions and bulletin documents what are regarded as common problems and the most frequently encountered irregularities. I am not sure what languages they are published in, but, nonetheless, they are issued by the Border Force and it seems to me that it would not be difficult for the publishing authority to indicate, in those documents at least, what it currently regards as being frequently encountered problems, so as to raise the presumption of reasonably apparent irregularities for the information of those responsible for training ground handling staff around the planet.

34. In the circumstances, too, it does not seem to me that it would be beyond any particularly sensible or reasonable regime to suggest that the Border Force might create a database accessible on the internet as to what is regarded as being reasonably apparent, which could be readily and quickly checked, perhaps, by ground handling staff who have access to the internet. Given, as I have said, the huge variety of documents which use OVI, it would not seem to me to be particularly onerous for the border authorities around the world, perhaps, to collaborate to create an online database of documents which have OVI as an apparently easily detectible security measure and, importantly, where to find it.

35. One must I think again remember that it is the Secretary of State and her officers in this case who are the experts and it is their primary responsibility, as assisted by this legislation, to protect the borders and regulate immigration and emigration. It seems to me that this surely must be regarded as the primary function of this particular piece of legislation and not a revenue raising exercise.

36. All I have already said is thrown into even greater difficulty, for the purposes of the implementation on the ground of the standards to be expected under the legislation, by the particular problem that the information and, indeed the standards expected, appear to change without apparent notification or emphasis. The evidence in this case shows that there were signs of irregularities in documents which were previously not treated as reasonably apparent, but subsequently so treated without any apparent notification to the relevant carriers or their ground handling staff of the change of mind.

37. In those circumstances, of course, it is extremely difficult for those responsible for the training and instruction of the ground handling staff to notify the staff agents that particular characteristics of forged documents, which they were not expected reasonably to identify in the past, were now regarded as being reasonably apparent.

38. All of that, it seems to me, does make the task of sensible implementation of the UK's requirements so as to avoid these penalties extraordinarily difficult for the staff on the ground.

39. Accepting, given the enormity of the task and the huge variety of documents and irregularities under consideration, it is not going to be possible for the UK Border Force to provide a definitive list of what irregularities may be regarded as reasonably apparent, however, if the purpose of the process is to collaborate with the relevant carriers in the most efficient way possible to ensure, as far as possible, those not entitled to enter the United Kingdom do not reach these shores, it seems both practical and sensible for the UK Border Force to provide the most specific and explicit guidance it reasonably can as to what is reasonably apparent and not to dance around the subject and leave the carriers to work it out for themselves.

40. The point I think ultimately must be, and it is to some extent accepted by the Secretary of State through Dr. Staker, that it is inevitable that there must be some consistent standard applied around the globe and it cannot be correct to suggest that "reasonably apparent" to the basically trained and knowledgeable staff in Spain, for example, is a different standard to that applied to similar staff, for example, in the United States, Germany, South Africa or wherever else.

41. Another feature of this case is the evidence produced, largely, I think, on behalf of the Secretary of State, of statistics which it is suggested support the suggestion that the problems, particularly with Greek passports, should have been reasonably apparent to the Appellant's ground handling staff.

42. Dr. Staker has with some considerable tenacity and great eloquence attempted to support the statistical evidence produced by the Secretary of State. I made it plain in the course of argument, and I make it plain again now, whilst I am not disputing the possible veracity of the conclusions Dr. Staker seeks to draw from the statistical evidence, it seems to me very clear that the statistical evidence produced does not go anywhere near supporting those conclusions before me.

44. Despite the eloquence and tenacity of Dr. Staker in advancing these arguments, it seems to me once again that we find ourselves confronted by the danger of the use of statistics to support such arguments, particularly when they are relatively poorly presented and analysed.

45. I turn then to the question of the elements of what is reasonably apparent, or might be concluded to be reasonably apparent to the trained ground handling staff with a basic knowledge of how to identify false documents without the use of technological aids. To begin with the standard to be applied is explicitly, if one accepts the applicability of the guidance, what is reasonably apparent to the trained representative with the basic knowledge, that is the actual ground handling staff.

46. In those circumstances, there is a heavy question mark, it seems to me, over the relevance of the conclusion reached by a highly-trained immigration Border Force officer as to what might be reasonably apparent to him or her. What is reasonably apparent to a highly-trained Border Force officer is clearly unlikely to be the same as what is reasonably apparent to a trained representative of a ground handling company with basic knowledge, etc. etc.

47. Accordingly, the conclusion of a trained border officer as to what is reasonably apparent, without more, seems to me, to begin with, somewhat less than satisfactory as a benchmark. Neither of the Border Force officers makes the point in the reports that he or she considers on analysis, on whatever basis, that the identified issues with these travel documents should have been reasonably apparent to the trained representative of the ground handling staff etc etc. What they simply say is that, applying their own understanding of the way in which documents are forged, they consider them to be reasonably apparent. That, in a sense, I am afraid, is initially a flawed analysis for the purpose of applying the legislation with the relevant guidance.

48. The issue of training has been raised at some length in the context of what may or may not be reasonably apparent. The guidance to which I have been directed, of course, provides no expectation of training at all, save that there is a reference to a trained representative. It does not say what that trained representative has to be trained in. It simply requires a trained representative who has a basic knowledge of how to identify false documents. As I have already pointed out, there is no indication in the guidance or anywhere else, as far as I am aware, of what it is that is suggested is a basic knowledge of how to identify false documents or, indeed, and perhaps importantly, what training it is expected would teach that.

49. The Respondent, the Secretary of State, suggests that, because training of some kind has been provided to the relevant ground handling staff in this case, the conclusion can be drawn that they must be expected to identify these defects as being reasonably apparent. However, there is clearly no consistent standard applied as to what that training might be or what is expected. There is no specific training, for example, suggested on the question of OVI. Indeed, Louisa Cliff, who gave evidence, who is a trained Border Force officer, accepted that she would not necessarily know where to look for OVI in any number of documents. She says from her own training that would not have been apparent. She knows where to look for OVI in some documents borne of her own personal experience of the examination of documents with a particular eye, it seems, to OVI.

50. The evidence before me includes the recounting of three sets of presentations given by Border Force training officers to the relevant ground handling staff. The statement of Miss Elliott-Cullen at p.275 and following in the bundle identifies those particular training sessions. She talks in May 2015 of having delivered three training sessions to the employee of Lesma, the ground handling agents employed in Palma de Mallorca by the Appellant airline. She says the two presentations were of a generalised nature to check-in and boarding gate agents and a more specialised session in advance passenger profiling was given to experienced supervisors. She says in relation to the two presentations to the check-in and boarding gate agents, each lasted between one and a half to two hours and she did distribute printed copies of a PowerPoint presentation to those trainees.

51. She says that the PowerPoint presentation focused on the section dealing with security safeguards and selective anti-counterfeiting measures which are frequently presented in genuine documents, including, among others, optical variable ink. She says that she discussed the collection of security safeguards in generic terms without reference to any specific documents and she allowed the trainees to examine examples of fraudulent Greek and Italian identity cards, but did not have at her disposal a genuine or forged Greek passport.

52. In the two basic sessions she conducted with check-in and boarding agents, there is a section dealing with passenger profiling, she says, and she said that during the presentation

"I made specific reference to the propensity of Albanian nationals to present fraudulent Greek and Italian passports and national identity cards and suggested that they should exercise greater caution when such documents are presented to them at check-in or at the boarding gate."

53. She goes on to describe the third and final session delivered to four experienced Lesma supervisors and in that, she says, there was a slide which referred specifically to Greek and Italian passports and ID cards as known high-risk documents.

54. It is apparent that the border agencies and, indeed, the immigration departments of the various carriers, do carry out a measure of passenger profiling in an effort to flag up the potential for problems in advance of passengers presenting themselves at the check-in desk. That is clearly the focus of the profiling lecture given to the experienced supervisors.

55. The Secretary of State suggests that the ground handling agents of Ryanair at Palma de Mallorca should have understood that Greek passports were a high risk and should have exercised greater caution with them. Pausing there, whether that is true or not seems to me is at least moot as I have said, but, in any event, it seems to me that, for the purposes of applying the test of what is reasonably apparent, the unadorned proposition that forgeries are frequently encountered does not necessarily have any specific relevance.

56. Moreover, on closer examination of the PowerPoint presentation which is contained within the bundles before me, Mr. Davidson, rightly I think, raises the question as to whether or not the assertion that Greek passports were somehow singled out in an important way is at least dubious. For example, at p.402 in the bundle, which is a translation of the Spanish presentation which is produced in its proper form at p.311, it is apparent that the slide referred to is entitled "The document presented, is it high risk?" and it does, indeed, identify Albanians with Greek and Italian passports and ID cards, but it goes on to suggest Chinese, passports from Taiwan, Hong Kong, Japan, Korea, Malaysia, Macau, Singapore, Ukrainian, Polish passports and ID cards and Iranian, European collectively, and Israeli passports. Mr. Davidson, it seems to me fairly, further makes the point that, among a not insignificant number of other passports which are identified as being potential high risk, including all European passports whatever that may mean, it is unclear in the context of this piece of training and guidance how a check-in handling agent should be expected to identify with any clarity at all whether or not the individual presenting a potentially forged passport is, in fact, an Albanian or, indeed, a Chinese or a Ukrainian; the point I think being not unreasonably made by Mr. Davidson is that the apparent ethnicity of the carrier of the document would not by any means necessarily indicate his nationality, particularly in this diverse and multi-cultural world.

57. The assertion, as I have said, that somehow the training identified very clearly and specifically Greek passports, in particular carried by Albanians, as being something upon which to focus with greater clarity than any others does seem to be watered down significantly by an examination of the training itself.

58. Mr. Ward, who gave evidence, did speak of the frequency of the use of forged Greek passports, but he was only able to speak about the experiences of his observations from the airport in Barcelona. The suggestion that somehow the ground handling staff from this training should be expected particularly to have concerns about Greek passports carried by Albanian citizens does not, in my judgment, necessarily bear very close scrutiny. Indeed, the UK Border Force agents who identified these particular individuals did not purport to identify them on the basis that they saw them initially as being potentially Albanian individuals carrying Greek passports. They clearly and explicitly, as I have already pointed out, identified the problems with these travel documents on the basis of the apparent failure to satisfy the security requirements in the documents themselves.

59. Pu tting aside the relevance of training delivered differently in different places to any objective or consistent standard to be applied to all carriers, the evidence does not, in my judgment, support the suggestion that the training provided comes close to supporting the Secretary of State's contention that the optical variable ink in respect of the word "HELLAS" or, indeed, the Greek flag issue, were identified in the course of training as being obvious or reasonably apparent irregularities. The training shows that OVI was clearly flagged as being a common security element, but it is also clear that the evidence shows that not all documents have it, and those that do have it have it in different places. The only thing it seems to me that can be concluded from that evidence is that OVI is, indeed, reasonably apparent if you know where to look for it. There is no evidence, as I have said, that the presence of OVI, in particular in Greek passports, was an issue covered in the training.

60. As I have said, there is also some evidence about the frequent bulletins issued by the British Border Force in relation to frequently encountered problems with travel documents, but, once again, there is no suggestion in the Secretary of State's guidance as to the expected standard of basic exposure of ground handling agents to such bulletins which in order for the application of the reasonably apparent standard to be triggered in respect of any problems highlighted.

61. It seems that these bulletins are produced monthly, but there is some significant doubt as to whether or not they are sent to the correct people and, as I have said, it is not entirely clear to me what language issues there may or may not be. Assuming that they are, in fact, produced in the language of the relevant recipient ground handling agents, it seems at least that the evidence shows, certainly on some occasions and quite possibly all, the bulletins are sent directly to the ground handling agents rather than to the persons responsible in the carriers themselves, that is in Ryanair's case Mr. Pastor and his colleagues, who might be expected to be informed of these issues in order to be able to ensure that their training is compliant with the reasonably apparent standard applied by the Secretary of State. It is apparent that certainly not in all cases are the bulletins sent to the important relevant individuals.

62. As I have already pointed out in a more general context, the bulletins do not appear to direct themselves specifically to issues which might be regarded as raising the presumption in respect of reasonably apparent particular issues and that, it seems to me, is something which could very easily and simply be addressed by those preparing these documents.

63. There is, moreover, no suggestion by the Secretary of State that simply because an issue is mentioned in a bulletin it falls into the reasonably apparent category. Indeed, it seems to me, such a contention would inevitably be unsustainable because, as I have said, the bulletins themselves are not apparently focused upon the issue of what is reasonably apparent. They simply highlight either frequent or interesting falsifications of documents which have passed across the radar of the British Border Force. Accordingly, whether or not the specific issues identified in this particular case may or may not have been mentioned in a bulletin - and there is evidence only that they were, in fact, mentioned in a bulletin in a very general context - clearly does not inevitably lead to the conclusion that the presumption of a forgery being reasonably apparent would thereby be raised.

64. Given all that, that there must also be a question mark over the relevance of the content of the bulletins in supporting the Secretary of State's case.

65. Dr. Staker suggests in his arguments that somehow the question of what is reasonably apparent may be determined from some assessment of what might be expected to be gathered knowledge in some form by the ground handling staff. I think that the way he put it was that they should be expected to be aware of the changing situation and to keep abreast of developments. It is a general submission which again, with the greatest respect to Dr. Staker, on closer analysis, seems to me to fall apart. First of all, it is difficult to know what is to be expected in that context from the ground handling staff, particularly if the issues which it is suggested give rise to a reasonably apparent forgery are not referred to in training or indeed in the bulletins. Are they expected somehow to absorb this information from anecdotal evidence or from their own experience? In which case we fall further and further, of course, from any objectively applicable standard. As I have said, even if such issues are referred to in training or in the bulletins, it is not suggested, and could not be suggested, that such a mention in either training or the bulletins, inevitably, leads to the conclusion of even the raising of the presumption of what is reasonably apparent. In those circumstances, it seems to me, there is a fundamental fallacy in the argument that somehow the standard to be applied can be influenced by this suggestion that there is some general duty to be aware of changing situations or to keep abreast of developments.

66. Indeed, further it is a somewhat surprising submission to make given, as I have said, the absence of any authoritative detail on what is expected of the ground handling staff in satisfying the requirements of the legislation. It is again a particularly difficult submission to sustain where, as here, the evidence shows inconsistent application of inconsistent standards. How, one might reasonably ask, is the averagely competent ground handling staff trained in the basic knowledge of how to spot irregular documents supposed to be aware of the changing situation and keep abreast of developments if he or she is not actually told about them? It must, in that sense, depend upon whether or not the absorption of this undefined material in undefined circumstances could or should be expected to fall into the presumed knowledge base of a trained representative with a basic knowledge of how to identify false documents. I think that the problems with applying such a test will be apparent when it is put in those terms.

67. It is easy, in my judgment, to see that such a proposition is completely incompatible with a set of reasonably objective criteria consistent with the obligations imposed by the legislation. For such a proposition to be sustainable, it seems, it would not be enough to show that such developments were within the knowledge base of the UK Border Force or even the police. Working on the basis of standards set out in the guidance, it is clear that the standard expected of a trained representative, etc., must be lower than those professionals and it would be necessary, in those circumstances, to show that the evidence supports a conclusion that many other such representatives in similar situations, with similar basic training, did regard such an irregularity as reasonably apparent or at least were in the habit of picking it up. Ultimately, of course, it is a question of fact in each individual case, but where the question is raised on reasonable grounds as to whether or not a particular issue rendered the forgery reasonably apparent, the absence of such comparative evidence in relation to other ground handling staff or agents of whom the same standard is expected must clearly support any challenge to the charge raised by the Secretary of State.

68. Indeed, such evidence as there is seems to the contrary of the proposition put by the Secretary of State, insofar as this issue, in particular, was clearly not confined to Ryanair and its agents. It is an issue which has been flagged up in relation to multiple carriers and their ground handling agents. There are numerous examples in the PowerPoint presentations, which are in the bundle - and I flag up pp.257 and 258 in the documentation and pp.188, 198 and 203, all of which give examples of similar issues arising which were detected up by the immigration authorities - they have all passed through the hands of other agents and it is not at all clear from those examples that they gave rise to s.40 charges when they were identified.

69. Another issue of some relevance which is raised is the question of whether or not the prior inspection by a putatively competent national police force is of relevance to the determination of whether or not a ground handler subsequently handling the same document could be expected to regard as reasonably apparent issues which were not picked up by the national police force.

70. Dr. Staker, in his submissions, suggests that there are a number of reasons why prior inspection by the national police forces might not be regarded as entirely exculpatory from the point of view of any ground handling staff who subsequently failed to spot issues which, as I have said, were apparently not identified by the national police force. First of all, he says that it may well be that the relevant national police force does not regard the identification of false travel documents, when an individual is exiting the country, as an organisational priority. There is the most shadowy possible evidence to support that suggestion. Mr. Ward suggested, without identifying I think any proper evidential basis for it, that his own personal impression of the attitude of the Spanish border police in Barcelona Airport was that they did not always necessarily regard the close inspection of documents on exit as being an organisational priority.

71. Mr. Davidson helpfully took me to the European Community guidance to border officers contained in a document which was in the bundle, in which it is at least clear that the guidance issued for the purposes of the operation of the Schengen arrangement is for the national police carefully to inspect documents both on exit and arrival. In this case it is accepted, I think, that the relevant individuals did pass through Spanish emigration control, whether or not presenting the same documents is a different issue, and there were no problems raised at that stage. It seems to me that, absent some proper evidence, which might relate to a specific geographical location or indeed country wide, to support the contention that the policy is taken by a national border force that exit controls are not an organisational priority, I find no cogent evidence here to support Dr Staker's submission.

72. Furthermore, Dr. Staker suggests that there may, of course, be a question of negligence or corruption. That, of course, is entirely possible. There may well be elements of negligence or corruption involved in any such organisation. That does not necessarily mean that it applies in any individual case and there is, of course, no evidence of either negligence or corruption that is relevant to this particular incident or the officers of the Spanish border police who examined whatever document was presented by either of these people when passing through their control. That raises, of course, the further question as to whether or not these individuals did indeed present the same documents to the emigration control as they did to the ground handling staff. It is entirely possible, and not beyond the experience, I understand, of those responsible for these matters, that an individual determined to travel on fake documentation presents legitimate documentation to the emigration authorities and then substitutes it for fake documentation when dealing with the lower standards, clearly, expected to be applied by ground handling staff at the gate.

73. All these issues highlight the need for vigilance. Clearly, the presence or, indeed, absence of local police checks cannot under the legislation absolve ground handling agents from the responsibility to detect falsity which is reasonably apparent, but neither, it seems to me, is it fair, justified or, indeed, very diplomatic to insist that ground handling staff, who, of course, frequently will be of the same nationality as the relevant border force officers, should work on the assumption that their local police are incompetent, corrupt or negligent. The question of vigilance does not, it seems to me, necessarily imply that they must work on the basis, as I have said, that there are those problems present in their compatriots. Conversely it does seems to me, where there has been a local police check and there is no evidence that the ground handling staff were aware of any of those particular issues directly affecting the subject transaction, the fact that both the local police and the trained representative with the basic knowledge, etc. etc, failed to spot the irregularity complained of must be evidence relevant to the determination as to whether or not such an irregularity could be regarded as being reasonably apparent.

74. This conclusion, it seems to me, is given some support on the evidence by a letter which appears at p.126 of the bundle. It is a letter dated 29 ^th October 2015 from Simon Gordon, a chief immigration officer, to Mr. Pastor of the Immigration Affairs and Authority Liaison Department at Ryanair. In dealing with an entirely different case, Mr. Gordon says this,

"I have now had the opportunity to examine the case papers and consider your objections. I would like to remind you that we do not expect Ryanair's ground handling agents to detect deficiencies with travel documents that go undetected by a national police border force. We do expect your staff to identify forgeries that are reasonably apparent".

75. There may, of course, be said to be some potential contradiction between the last two sentences, nonetheless, the point is made, and is reasonably made, that there is clearly no general expectation in the application of these standards by the Secretary of State and her officers that ground handling staff are expected to detect deficiencies that go undetected by the national police border force. As I have said, there are a number of reasons why vigilance, of course, is required and the simple fact that an otherwise reasonably apparent deficiency in a document is not identified by the national border force does not, obviously, exculpate the subsequent ground handling staff from spotting a reasonably apparent irregularity in a document. Nonetheless, if they both fail to spot it, it does seems to me, without further evidence of corruption, negligence, etc., that must at least be admissible evidence against the suggestion that such an irregularity was objectively reasonably apparent. One must, in the context, remind oneself that it is not the job of the carriers to permit or refuse entry or exit. That duty under UK law lies with the Border Force. The carrier's duty under the law is to look for reasonably apparent irregularities and, if so discovered, to alert the relevant border authorities who will then make the decision as to whether or not to refuse or permit entry or exit.

76. Against that background, one, obviously, has to look at these irregularities in these documents. Has the Secretary of State satisfied the burden that shows that it should have been reasonably apparent to the trained representative, etc etc, that these documents were not what they purported to be? As I have said, we have only seen one of these documents and no issue was taken by the Appellant on that. It is accepted that the deficiencies in the documents were effectively the same in both.

77. The suggestion by the examining immigration officers in Edinburgh was that the reasonably apparent irregularities in this document were two: the Greek flag issue and the "HELLAS" issue. As I have already pointed out, there is a problem, when applying the test of a reasonably apparent irregularity in this case, that the opinions relied upon suggest that it was reasonably apparent to a trained Border Force officer. None of the investigating officers, either those at the coalface, as it were, or under review, indicates that the conclusion which may be drawn from the examination of the document itself was that it should have been reasonably apparent to a trained ground handling representative with a basic knowledge of the identification of false documents etc etc.

78. The Greek flag issue, if I may call it that, is clearly by far the less apparent of the two and I make the point again that it was not specifically identified by Miss Drum as being as an issue supporting the conclusion that the falsification was reasonably apparent in her review document at p.26 in the bundle. Beyond that there is very little, if any, evidence that it has been identified in training, by anecdote, by experience, or howsoever, as a common issue with Greek or other passports (compared to the "HELLAS issue" and the OVI issues which were flagged up in the training and the bulletins). Dr. Staker in his skeleton argument at p.48 says that the two halves of the Greek flag did not align correctly to show a complete and accurate representation of the Greek flag, and even if this might not have been noticed on an initial look at the passport, it would have been if suspicions arising from other matters he has referred to had led the Appellant's agent to take a closer look. Even on the Secretary of State's own submissions, it seems to me that there is at least some doubt raised as to whether or not the Greek flag issue in these particular documents can be said to have been reasonably apparent on a brief examination without the assistance of technological aids (acknowledging the somewhat curious suggestion in one passage in the guidance that use of light is excluded from the reasonable expectations during such an examination).

79. The suggestion then is made that the absence of OVI in the word "HELLAS" marks this out as being a reasonably apparent forgery. There is obviously a challenge to that by the Appellant and there is a number of examples of documents, Greek documents containing both this OVI issue and other problems, passing through the handling ground agents and being picked up by the Border Force without necessarily raising a charge under s.40.

80. In the bundle before me, for example, in July 2014, at p.216, there is an example of a Greek passport (this is part of a training PowerPoint). One of the problems identified with this Greek passport is that there is no colour shift in the word "HELLAS". That was a document which passed through Ryanair's hands, among others, travelling from Valentia in July 2014 and, despite the presence of other, perhaps rather more obvious, signs of tampering with the document including a cut mark where the biodata page had been attached and hand-cut corners, the conclusion taken by the Border Force, on that occasion, was that it was not regarded as being reasonably apparent that this document was false.

81. Furthermore, really barely days before the events under consideration in this appeal, on 10 ^th May, once again - this is at p.780 in the bundle - there is an example of another Greek passport. The immigration officer examining the passport at Stansted Airport, Michelle Middleton, said,

"I immediately recognised this document as false because of the following: the blue and white Greek flag symbol did not change, as it should have done, the green metallic writing, 'HELLAS' at the top of the passport did not change colour as we would have expected".

She goes on to say, "I consider that the falsity of the Greek passport is not reasonably apparent". That again is obviously to her, as a trained border police officer, rather than by reference to the standards to be applied to the trained representative etc etc. Her view was confirmed by L. Payne, the inspector, on p.779, when the decision was taken that no action would be taken in respect of that passport under s.40. That, as Mr. Davidson points out, seems to me was almost exactly on all fours with these documents which were regarded in a somewhat different light barely two or three weeks later.

82. In addition, in September 2015, there are documents which appear in the bundle, this time at p.728 and following, which relate to a child; again an Albanian travelling on a fake Greek passport. The immigration officer named only as S. Wilmer says, "I immediately recognised that this document was false because of the following: dull and incorrect vibrancy of the optical visible data features on the biodata page and a mismatch of GR see through the register and incorrect font used for personal details".

83. He or she concludes, "I consider the falsity of the Greek passport is reasonably apparent", once again not obviously applying the standard of the trained representative as opposed to the examining trained officer. However, on review, L. Payne, on p.728, decided that no further action would be taken despite that conclusion by that border officer. That, of course, is an example occurring after the ones under consideration, but it is an example of a situation where the officer on the ground appeared to conclude that he or she regarded a similar problem as being reasonably apparent, and that is contradicted by the officer then responsible for imposing the penalty.

84. It is very clear from all of this that there has been a very inconsistent approach and inconsistent standards being applied. Of course, an inconsistent approach and inconsistent standards do not necessarily mean that it is not reasonably apparent in an individual case that the falsity of the document was evident, but the burden is on the Secretary of State in individual circumstances to establish, on the balance of probabilities, that the issues complained of were indeed reasonably apparent. In those circumstances, evidence, as there is clearly here, that the Secretary of State and her officers have taken a different view on almost identical facts two weeks earlier, and subsequently, seems to me to be powerful evidence against the conclusion that it is appropriate for the Secretary of State to impose a penalty on the relevant standard in this particular instance.

85. There are, as I have said, substantial sums of money involved in the operation of this legislation and it seems to me, in the circumstances, that the Secretary of State must be able to satisfy the test that Parliament has laid down and, where there are uncertainties as to the interpretation and application of that test, inevitably, in my judgment, they must be resolved in favour of the citizen otherwise subject to the substantial penalties. Parliament, for better or worse, did not see fit to define in the legislation itself with any clarity what is meant by "reasonably apparent in the circumstances" and the guidance I have referred to, insofar as it has any force, is of limited assistance, indeed, in certain circumstances might be said to make the answer rather less discernible than otherwise might be the case.

86. It is accepted on both sides, importantly by the Secretary of State, that there must be some level of objectivity identifiable and there must be some level of consistent standards which the carriers are expected to maintain. Indeed, that must be the case, inevitably, otherwise, of course, the absence of any concession as to some reasonably objective standards consistently applied would leave those potentially at risk in respect of these provisions entirely at the whim of the Secretary of State and her officers as to what may or may not be relevant to the decision to levy the charge at any particular time or in relation to any particular document. It might uncharitably be said, indeed, that there is some evidence here to support that suggestion in the incidents considered in evidence.

87. Having said that, of course, each event has to be considered on its own circumstances. There may be some situations where the defect is so obvious that it stands alone as reasonably apparent, quite irrespective of the surrounding circumstances. There may be other defects which, individually, may not satisfy the test, but when apparent together in one document collectively create an irregularity that is reasonably apparent. There may indeed be other circumstances where behaviour, for example, or language problems create a situation in which suspicion is raised inviting closer examination, where more subtle irregularities might be said to become reasonably apparent, where absent such circumstances they may not be. None of those considerations, it seems to me, apply in this case. It cannot, conversely, reasonably be said that the test of what is reasonably apparent is necessarily satisfied where an issue is demonstrated as being reasonably apparent only once it is pointed out to you in a document by somebody more expert who knows what he is looking for.

88. Dr. Staker suggests, in his skeleton argument at para.47 for example, that there were other issues with these passports which further identified these documents as being false. Those are the items which he advances in support of his suggestion that the Greek flag issue should have been identified because of the concerns raised by other problems with the passport. Those are not matters relied upon by the officers of the Secretary of State in the determination to apply the charge in the first place.

89. In order to establish that the falsity of this document was reasonably apparent for our purposes, the Secretary of State must establish not only that such identified irregularities in the abstract should have been reasonably apparent to a trained representative with the basic knowledge of how to identify falsified documents, etc etc, but also that it was reasonable to expect such a person to know and how where to look for them in this document in the prevailing circumstances. Otherwise, it seems to me, it cannot be said that it is "reasonably apparent" simply by showing that, on close examination, when pointed out by somebody who knows what he is looking for, one might conclude that this particular issue in this particular document becomes reasonably apparent.

90. Much of what I have said might be considered obiter to the decision I have to make, but, clearly, in my judgment, it all feeds into the analysis of the evidence as it reflects upon the case which the Secretary of State has to make. I am quite satisfied on the evidence that the Secretary of State has not discharged the burden in respect of either of these documents. The evidence, in my judgment, falls well short of establishing that a trained representative with a basic knowledge of identification of false documents, etc etc, should have been expected to pick up these irregularities.

91. I have, as I have said, considerable doubt about the relevance of training, or the information provided, in individual circumstances to the determination and application of a largely objective set of standards, but, insofar as such might be relevant, the evidence here, in my judgment, provides little or no assistance to the Secretary of State in proving her case in respect of these documents. The evidence of a double failure to spot the irregularities, both the ground handling staff and the local police, whilst not determinative necessarily one way or the other, further undermines the case, in my judgment, which the Secretary of State seeks to advance.

92. Finally, the addition of the evidence of different interpretations of the standards in other similar, and indeed almost identical, cases by the Secretary of State and her officers settles, in my judgment, the issue relatively conclusively. The suggestion that a citizen should be subject to a significant penalty for failing on his own to work out, without any clear or even apparent guidance, that the Secretary of State has changed her approach and made subject to penalty that which on other occasions she had excused from culpability, offends, in my judgment, fairly basic concepts of justice and indeed the rule of law.

93. In those circumstances, I will allow the appeal and dismiss the charges.