Akbars Restaurant (Middlesbrough) Limited v The Secretary of State for the Home Department

Section 15(6)(a) requires a civil penalty notice to state why the Secretary of State considers the employer liable, but the requirement is general and non-prescriptive. Read as a whole, a notice may identify that an employee had no right to work and provide the supporting facts and evidence. It need not identify the precise ground in section 15(1) or state the reasons in a particular place. An appeal under section 17(3) is a rehearing of the decision to impose a penalty. The court may consider relevant matters, including matters unknown when the notice was issued, and is not confined to the statutory ground initially relied upon. A different basis may be advanced on appeal where the employer suffers no actual procedural prejudice.

The Secretary of State issued a civil penalty notice to Akbars Restaurant (Middlesbrough) Limited under the Immigration Asylum and Nationality Act 2006, alleging that an employee had no right to work. The notice referred generally to the statutory circumstances in which employment is prohibited and gave the penalty reason as no right to work.

The County Court at Middlesbrough rejected Akbars’ challenge and held that the notice was sufficient. Akbars appealed, arguing that the notice had to identify the precise ground under section 15(1), and that the Secretary of State could not rely at the appeal hearing on a different ground from that suggested in earlier correspondence. Permission to appeal was granted only on the latter substantive issue and the related notice-validity issue.

1. Disposition. The Court of Appeal dismissed the appeal. Lord Justice Zacaroli gave the judgment, with which Lord Justice Coulson and Lord Justice Lewison agreed.
2. Validity of the notice. Compliance with section 15(6)(a) required the notice to be read as a whole. The notice contained references to the reason for the penalty, including the penalty-reason box and the attached statement of case. The Act imposed no requirement that the reasons appear in a particular part of the notice.
3. The word why in section 15(6)(a) was general and non-prescriptive. A notice stating that an identified employee had no right to work, together with the facts and evidence relied upon to establish employment and the absence of that right, stated why the Secretary of State considered the employer liable. The subsection did not require the notice to identify the particular ground in section 15(1), nor every reason leading to the conclusion. Greater specificity would have been required if Parliament had intended that result.
4. Statutory scheme and rehearing. The purpose of Part 2 of the Immigration Asylum and Nationality Act 2006 was to discourage illegal employment. Section 15(3) placed the responsibility for carrying out the prescribed right-to-work checks on the employer. Under sections 17(1) and 17(3), an appeal was a rehearing of the Secretary of State’s decision to impose a penalty. The court could take account of relevant matters beyond those in the notice, including matters of which the Secretary of State had been unaware. The rehearing was not confined to the particular section 15(1) ground initially identified.
5. Although correspondence from the Government Legal Department confusingly referred to section 15(1)(b)(iii), the evidence and submissions made clear that the operative case was that the employee was an overstayer under section 15(1)(b)(ii). Even if the original decision had proceeded on the former basis, the Secretary of State could rely on the latter basis on appeal. Akbars had identified no actual prejudice and could deal with that case at the hearing. The County Court’s conclusion that there was no procedural unfairness was therefore unimpeachable.

• Court of Appeal (Civil Division): On 11 November 2024, dismissed the appeal.
• County Court at Middlesbrough: HHJ Gargan’s order of 21 August 2023 rejected the challenge to the civil penalty and granted the Secretary of State relief from sanctions. Permission to appeal against the relief decision was refused. Permission to the Court of Appeal was granted only on the notice-validity and change-of-basis issues.