Link Spolka Z O.O. & Ors v Secretary of State for the Home Department

An effective system for preventing the carriage of clandestine entrants under the statutory defence is not an infallible system. The Prevention Code must be followed and considered, but is not prescriptive. Compliance is substantial evidence of effectiveness, while material non-compliance is relevant evidence only. The ultimate question depends on all relevant evidence.

Vehicle checklists are risk-control measures as well as evidence. Delayed production does not defeat the defence where a checklist was completed accurately and contemporaneously. The Code does not require a secured load to be opened at every stop or routinely immediately before embarkation. On a County Court rehearing, the court must decide the statutory defence, then whether to cancel a penalty, and finally whether to reduce it.

These conjoined appeals concerned civil penalties imposed on Polish road-haulier companies and drivers after clandestine entrants were found in vehicles seeking to enter the United Kingdom. The penalties were imposed under Part II of the Immigration and Asylum Act 1999.

Separate judges in the County Court at Nottingham had rejected, wholly or partly, the carriers’ statutory defences. The disputes concerned the effectiveness of their security systems, the significance of monitoring and vehicle-security checklists, whether a sealed load had to be opened for internal inspection, and the exercise of discretion as to penalties.

The central issue was how the statutory defence and the Prevention Code should be applied on a rehearing of the Secretary of State’s penalty decision.

Appeals allowed in part. Stuart-Smith LJ gave the judgment, with which Warby and King LJJ agreed.

1. The defence in section 34(3) requires proof of every limb. An effective system under limb (b) need not be infallible. The Prevention Code is not prescriptive. Compliance is usually substantial, but not conclusive, evidence of an effective system; material non-compliance is relevant but cannot itself decide the issue. Training, assessment and monitoring may be relevant, but a County Court must not invent a required level of monitoring without evidence and a properly identified case.

2. Checklists have a preventive function because they focus the driver on required security steps. A failure to produce a checklist may justify an adverse inference that it was not completed. Once the court finds that it was completed contemporaneously and accurately, late production alone neither makes the system ineffective nor shows that it was improperly operated.

3. Paragraph 1.2.5 of the Code does not require a driver routinely to open and inspect every secured load immediately before the effective border. The external checks in paragraphs 1.2.1 to 1.2.4 may be part of an effective system without such routine opening. The Court followed the temporal reading of the Code in [2016] EWCA Civ 394.

4. The County Court rehearing proceeds in three stages, as stated in [2016] EWCA Civ 783: decide whether the statutory defence succeeds; if not, decide whether discretion requires cancellation of the penalty; and only then decide whether it should be reduced. An appeal to this court is not a public-law or reasons challenge to the Secretary of State’s original decision.

5. Link’s first appeal succeeded because the checklist was contemporaneous and its monitoring system was adequate. In the Kosciecha case, Link’s system was effective, but the driver’s failure to secure the vehicle meant that limb (c) failed; Link’s penalty was reduced to £4,000 and the driver’s to £500. SKAT’s system was effective. The Owcarz appeal therefore succeeded, but the Kasinski appeal failed because the checklist and monitoring procedure had not been operated properly.

• Court of Appeal (Civil Division) Allowed the consolidated appeals in part and varied the County Court outcomes: [2021] EWCA Civ 1830.
• County Court at Nottingham Separate judges had upheld or partly upheld penalties imposed by the Secretary of State. Their decisions were set aside or varied to the extent stated by the Court of Appeal.