Secretary of State for the Home Department v Akbar

An appeal against a civil penalty under the Immigration, Asylum and Nationality Act 2006 is a rehearing, not an ordinary CPR review. The employer bears the burden of establishing a statutory ground of appeal. A County Court decision on such an appeal is itself a decision on appeal, so a second appeal lies to the Court of Appeal, subject to the stringent tests applicable to second appeals. Procedural defaults do not justify allowing the statutory appeal without considering the merits. The court must establish the nature and reasons for any default, consider the evidence available and assess whether alternatives, such as an adjournment with costs, provide a proportionate response.

The Secretary of State appealed against a decision of District Judge Fox in the County Court at Oldham, identified as [2015] EWHC 2990. The judge had allowed Mohammed Akbar’s statutory appeal against a civil penalty imposed under section 15 of the Immigration, Asylum and Nationality Act 2006 for employing two workers who were not entitled to work in the United Kingdom.

The Court of Appeal first considered whether it had jurisdiction to hear an appeal from the County Court. It then considered whether the judge was entitled to allow the statutory appeal because the Secretary of State’s evidence bundle and witness were not available at the hearing, without examining the reasons for those matters or the evidence otherwise available. The central issues were the route of appeal and the proper proportionate response to alleged procedural failures.

Appeal allowed. The matter was remitted to the County Court for rehearing by a circuit judge.

1. Under section 17 of the Immigration, Asylum and Nationality Act 2006, the County Court appeal is a rehearing rather than a review. The court may reconsider the matter on the evidence considered by the Secretary of State and may consider new relevant matters. This was consistent with the approach to a rehearing identified in Re Chenell, Jones v. Chennell (1878) 8 Ch D 492.
2. A County Court decision on a section 17 appeal is itself a decision made on appeal. Accordingly, a second appeal lies to the Court of Appeal, including where the County Court decision was made by a district judge. The appeal remains subject to the stringent tests ordinarily applicable to second appeals. The court’s conclusion was consistent with Azimi v. Newham LBC (2001) 33 HLR 51 and the principle concerning one level of appeal as the norm in Henry Boot Construction (UK) Ltd v. Malmaison Hotel (Manchester) Ltd [2001] QB 388.
3. The district judge erred by treating the case as undefended and allowing the appeal without examining the evidence. The earlier alleged defaults had largely been dealt with, the evidence had been served only two days late, and there was no evidential basis for concluding that the missing bundle or witness resulted from culpable conduct by the Secretary of State. The judge also failed to account for the absence of evidence from Mr Akbar’s side.
4. The employer bore the burden of showing that he came within a statutory ground of appeal, including the statutory excuse under section 15(3). The judge should have considered the available witness evidence and cross-examination. If the hearing could not be completed, an adjournment with costs was available. Allowing the appeal was not a proportionate response to the alleged procedural failures.

The appeal was allowed, with costs awarded to the Secretary of State. The appeal was remitted for rehearing by a circuit judge.

• Court of Appeal (Civil Division): appeal allowed, costs awarded to the Secretary of State, and the matter remitted for rehearing by a circuit judge: [2017] EWCA Civ 16.
• County Court at Oldham: District Judge Fox allowed the statutory appeal against the civil penalty, with costs: [2015] EWHC 2990.