ICS Car Srl v Secretary of State for the Home Department

For the purposes of section 32(1)(b) of the Immigration and Asylum Act 1999, a person concealed in a vehicle may simultaneously attempt to pass through and evade immigration control. A separate later act of evasion is unnecessary.

The statutory defence in section 34(3) requires an effective prevention system and its proper operation. A final vehicle-security check made over 100 kilometres before United Kingdom immigration control did not meet the Code’s requirement for checks immediately before arrival. The carrier and driver could therefore not establish the defence.

A Romanian freight company and its driver carried copper wire towards the United Kingdom. At the United Kingdom Immigration Control Centre in Calais, officers found three Afghan nationals concealed in the trailer after entry through a cut in its tarpaulin roof.

The Secretary of State imposed civil penalties under the Immigration and Asylum Act 1999. HH Judge Bailey in the Central London County Court dismissed the appellants’ statutory appeals. They appealed on the construction of “clandestine entrant”, whether Calais was immigration control in a prescribed control zone, and the section 34(3) statutory defence. They also sought to rely on fresh evidence. The Secretary of State sought to withdraw a mistaken concession concerning Calais’s prescribed status.

Appeal dismissed unanimously. Simon LJ, with whom King and Gloster LJJ agreed, rejected each ground of appeal.

1. Section 32(1)(b) of the Immigration and Asylum Act 1999 requires both attempted passage through immigration control while concealed and attempted evasion of immigration control. Those elements may be satisfied at the same time. Persons hidden behind the load in a trailer, making no attempt to reveal themselves when the vehicle stops, were attempting both to pass through and to evade control. No separate or subsequent act of evasion was required.

2. The court permitted the Secretary of State to withdraw the mistaken concession that Calais was not a prescribed control zone. The point was one of law, required no further evidence, and the concession had not founded an adverse judgment. Regulation 5(1) of the Carriers’ Liability Regulations 2002, read with Schedule 1 to the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003, established that the relevant events occurred at immigration control within a prescribed control zone.

3. The section 34(3) defence failed. Having regard to the 1999 Code, an effective system required an inspection of the roof immediately before arrival at United Kingdom immigration control. The driver’s last check occurred more than 100 kilometres from Calais and the contemplated final check was not completed. Such a system was not effective on that occasion, and the driver had not operated it properly.

4. The court also refused the proposed fresh evidence. The internet news reports did not materially illuminate the issues, added nothing to the accepted background, and were not strictly evidential material.

• Court of Appeal (Civil Division): appeal dismissed: [2016] EWCA Civ 394.
• Central London County Court: HH Judge Bailey dismissed the appellants’ statutory appeals against the civil penalties on 30 October 2014.