Bogdanic v The Secretary of State for the Home Department

A court may correct an obvious drafting error in legislation only where it is abundantly sure of the provision’s intended purpose, the draftsman’s inadvertent failure to achieve it and the substance of the correction required. The same principle applies to subordinate legislation.

Penal legislation attracts strict construction and especially clear evidence of objective legislative intention is required. That principle is weighty but not absolute. A correcting interpretation remains permissible where the publicly accessible statutory context makes the error and the intended meaning sufficiently clear to give fair warning.

Accordingly, a commencement order introducing amendments to the carriers’ liability regime extended to clandestine entrants arriving at prescribed immigration control zones outside the United Kingdom, despite referring literally only to arrival in the United Kingdom.

The Secretary of State imposed civil penalties on a lorry driver and the vehicle’s owner after three clandestine entrants were allegedly found in the lorry at the United Kingdom immigration control zone in Dunkirk. The driver appealed to the County Court. An important point of law was transferred to the High Court, where Green J ordered the trial of a preliminary issue.

The issue was whether the amendments made to Part II of the Immigration and Asylum Act 1999 by section 125 of and Schedule 8 to the Nationality, Immigration and Asylum Act 2002 had been commenced in respect of prescribed immigration control zones in France. The relevant commencement order referred literally to clandestine entrants arriving in the United Kingdom.

The court had to determine whether the correcting interpretative approach in Inco Europe Ltd v First Choice, [2000] 1 WLR 586, applied despite the penal character of the carriers’ liability regime and the requirements of legal certainty and foreseeability under article 1 of Protocol 1 to the European Convention on Human Rights.

1. The preliminary issue was determined in favour of the Secretary of State. The commencement order was to be construed as bringing section 125 of and Schedule 8 to the Nationality, Immigration and Asylum Act 2002 into force on 8 December 2002 for clandestine entrants arriving either in the United Kingdom or in a prescribed immigration control zone while concealed in a vehicle or rail freight wagon.

2. The approach in Inco Europe Ltd v First Choice, [2000] 1 WLR 586, is an exercise in objective interpretation rather than judicial amendment. It is confined to plain drafting mistakes. The court must be abundantly sure of the provision’s intended purpose, the inadvertent failure to achieve it and the substance of the provision that would have been made had the error been noticed. The countervailing objective indications must be especially strong because legislative language ordinarily has primacy.

3. The same approach applies to subordinate legislation. Only publicly accessible material of clear potential relevance may inform the objective construction. The subjective policy intentions of ministers or officials are irrelevant. Government press releases will very rarely provide a legitimate interpretative aid and the releases relied upon here were neither sufficiently formal nor sufficiently clear.

4. Part II of the Immigration and Asylum Act 1999 was penal legislation, notwithstanding its domestic classification as a civil regime. The principle of strict construction therefore carried great weight and required especially clear external indications of legislative meaning. It was not absolute, however, and did not exclude a correcting interpretation where the statutory context supplied fair warning and made both the drafting error and intended meaning clear.

5. Those demanding conditions were satisfied. Section 32 had always defined immigration control to include control operated in a prescribed zone outside the United Kingdom. The amendments were principally designed to improve carriers’ Convention protection, not to remove the pre-existing application of the regime at Coquelles. The regulations and codes of practice introduced or continued on 8 December 2002 objectively confirmed that continuing application. In particular, the renewed designation of Coquelles would otherwise have had no function.

6. The resulting law met the accessibility, precision and foreseeability required by article 1 of Protocol 1. Before and after 8 December 2002, a carrier had fair warning that the carriers’ liability regime applied upon entry into a United Kingdom immigration control zone in France.

1. High Court (Queen’s Bench Division): determined the transferred preliminary issue in favour of the Secretary of State and construed the commencement order as extending the 2002 amendments to prescribed immigration control zones in France: [2014] EWHC 2872 (QB).

2. County Court: the appellant appealed against the civil penalties. The case was transferred to the High Court for determination of an important point of law.

3. High Court: by an order dated 13 March 2014, Green J directed the trial of that point as a preliminary issue.