Bolle Transport BV v Secretary of State for the Home Department

A carrier relying on the statutory defence to a civil penalty for carrying clandestine entrants must prove every element of the defence. If the defence succeeds, no penalty may be imposed. If it fails, the court must separately exercise the discretion to impose, cancel or reduce a penalty on a rehearing.

An effective preventive system may be operated by a third party, but the carrier must prove that the system was effective and properly operated. Under the Immigration and Asylum Act 1999, a carrier cannot ordinarily avoid a penalty merely because it chose not to obtain assurances or confirmations from a consignor about loading-stage checks.

The appellant Dutch haulier transported a sealed trailer from Frankfurt Airport to the United Kingdom. Six clandestine entrants were found when the trailer was unloaded at a Royal Mail depot. It was common ground that they had probably entered the trailer before it was sealed at Frankfurt.

The Secretary of State imposed a penalty of £7,200 under the Immigration and Asylum Act 1999. Cambridge County Court rejected the carrier’s statutory defence, but reduced the penalty to £6,000 because it had wrongly been treated as having previous penalties.

The appeal concerned whether the defence in section 34(3) had been established and, if not, whether the county court had failed to exercise its discretion afresh to cancel or reduce the penalty.

1. Appeal dismissed. The carrier had not established the defence in section 34(3) of the Immigration and Asylum Act 1999. The defence is determined at a distinct first stage. The carrier must prove all its elements, and the court has no discretion to treat it as satisfied if it is not proved. If it is proved, no liability to a penalty arises.

2. The relevant effective system need not necessarily be operated by the responsible carrier itself. Paragraph 1.1.2 of the Operating Code contemplated checks and written confirmation from reputable third parties where the driver was absent at final loading. However, there was no evidence that DHL had an effective airside system for preventing clandestine entry, that any such system was properly operated, or that the appellant had a system for checking the loading process. The county court was entitled to find that the defence failed.

3. The county court had erred by failing to address separately whether, after rejection of the defence, it should exercise its discretion on the statutory rehearing to cancel the penalty. The Court of Appeal could re-exercise that discretion on the available evidence.

4. It declined to cancel or further reduce the penalty. A carrier could not, on the evidence in this case, be excused merely because it did not seek assurances, confirmations or an indemnity from its consignor. That approach accorded with the statutory policy of placing the burden of combating clandestine entry on carriers, reflected in [2003] QB 728 and [2014] EWHC 2872 (QB). The £6,000 penalty was appropriate.

• Court of Appeal (Civil Division) — dismissed the carrier’s appeal and upheld the £6,000 penalty: [2016] EWCA Civ 783.
• Cambridge County Court — on 29 May 2014, rejected the statutory defence, upheld liability, and reduced the penalty from £7,200 to £6,000.