Introduction

Home Office immigration powers extend to the detention and sale of transporters.  Under statutory warrant there is both civil and criminal jurisdiction in relation to the liability of carriers of persons subject to immigration control who lack the necessary authorisation to lawfully enter the United Kingdom on arrival. Where a civil penalty is imposed and remains unpaid, the Secretary of State has swinging powers to detain a transporter (even one other than the one used that gave rise to the penalty) and, where the penalty remains unpaid, to sell it. The use of those powers may operate even against persons not within the UK territorial jurisdiction.

The way in which these powers operate and some of the issues to which they give rise are considered in two parts. Part 1 below considers the detention of transporters. Part 2 will consider the issues arising in relation to the sale of transporters

Civil Penalties and Carriers’ Liability – the basic regime

As regards civil jurisdiction, the civil penalty regime under Part II of the Immigration and Asylum Act 1999 (‘1999 Act’) permits the Secretary of State to impose civil penalties for the failure to secure a goods vehicle on a responsible person: if the goods vehicle is a detached trailer, the owner, hirer and operator of the trailer; and if it is not, the owner, hirer and driver of the vehicle (s. 31A).

Part II also permits the Secretary of State to impose civil penalties for arriving in the UK with clandestine entrants (concealed and claiming asylum or evading immigration control) on a responsible person, including if the transporter is a ship or aircraft, the owner and captain; if it is a vehicle – but not a detached trailer- the owner, hirer anddriver of the vehicle; and if it is a detached trailer, the owner, hirer andoperator of the trailer (s. 32). NB there is further provision to extend who is a responsible person in relation to rail freight wagons. As regards s. 32 penalties, provision is made for certain defences to be available (s. 34).

For a penalty to be imposed, there must be liability on the person responsible (NB the driver of a vehicle as well as the company may be separately liable), and a determination of the amount of the penalty, having regard to the actions taken by that person. There are codes of practice in relation to the level of penalty (s. 32A) and also in relation to those persons operating a system for preventing the carriage of clandestine entrants (s. 33). Thereafter, the procedure for notifying a person of their liability to a civil penalty is prescribed (s. 35). As regards the amount of a civil penalty, the maximum aggregate amount per clandestine entrant is presently £20,000. Thus, if ten clandestine entrants were detected in the same vehicle on the same occasion, the maximum aggregate would be £200,000; a sum that is a lot of money for any business. 

Within the statutory procedure, provision is made for a person to give the Secretary of State a notice of objection. On receipt of such notice, the Secretary of State must consider whether to cancel, reduce, or increase the amount of the penalty, or determine whether to take no action. (s. 35(4)-(6).  The objection outcome must be notified to the objector (s. 35(7)). The Secretary of State may recover any sum owing to her a civil debt (s. 35(10)). The notification procedure includes provision for a document to be issued to or served on a person out the UK (s. 35(12); see also the Carriers’ Liability Regulations 2002 reg 14(2) in respect of the presumption as to document service).

By way of legal remedy, a person may appeal to the County Court against the imposition of a penalty imposed on them (s. 35A), on the basis that they are not so liable or that the amount of the penalty is too high. On appeal, the Court may cancel or reduce the penalty, or it may dismiss the appeal. An appeal is a rehearing of the penalty imposition decision, having regard to the codes of practice and any other matters that the court thinks relevant, even if the Secretary of State were unaware of them.

The detention of vehicles in connection with penalties – first basis for detention

The civil penalty regime goes further than providing for the substance and procedure in relation to penalties. It provides also for the detention (and the sale thereafter) of certain transporters.

Where a penalty notice has been issued, a senior officer (not below the rank of chief immigration officer) may detain a relevant vehicle (includes a trailer, semi-trailer, caravan or other thing which is designed or adapted to be towed by another vehicle), small ship (gross tonnage of less than 500 tonnes), small aircraft (operating weight of less than 5,700 kilogrammes), or rail freight wagon, until the penalty and any detention-connected reasonably incurred expenses have been paid (s. 36).

This power to detain may be exercised only if, in the opinion of the senior officer concerned, there is a significant risk that the penalty, or one or more of the penalties, will not be paid before the end of the prescribed period if the transporter is not detained; and may not be exercised if alternative security which the Secretary of State considers is satisfactory, has been given.

A vehicle may be detained only if the driver of the vehicle drives the vehicle pursuant to a contract – whether or not a contract of employment –  with the owner or hirer of the vehicle; the driver of the vehicle is its owner or hirer; or a penalty notice is issued to the owner or hirer of the vehicle.

Further, detention may be imposed also pending a decision whether to issue a penalty notice or whether to detain, or pending the issue of a penalty notice. This power may not be exercised in any case for longer than is necessary in the circumstances of the case, or after the expiry of the period of 24 hours beginning with the conclusion of the first search of the vehicle, ship, aircraft or wagon by an immigration officer after it arrived in the UK.

While the Secretary of State’s detention of a transporter is to be treated as lawful even though it is subsequently established that the penalty notice on which the detention was based was ill-founded in respect of all or any of the penalties to which it related, her act of detention enjoys no such protection if she was acting unreasonably in issuing the penalty notice. Thus, in an appropriate case, the particular use of this power may need to be assessed to see if it is compatible with Article 1, Protocol 1, ECHR (protection of property), as applied by the Human Rights Act 1998.

The detention procedure includes provision for a document to be issued to or served on a person out the UK (s. 36(6)).

The effect of detention in connection with civil penalties

As regards a ‘transporter’, being a vehicle (including a goods vehicle), ship, aircraft or rail freight wagon, together its equipment any stores for use in connection with its operation: where detention is in connection with civil penalties (s. 36), the person to whom the penalty notice was addressed, or the owner, or any other person whoseinterests may be affected by detention of the transporter, may apply to the County Court for the transporter to be released (s. 37).

The use of a hybrid procedure under CPR Part 8 may be appropriate for such an application, notwithstanding that there may be to some degree a dispute of fact. If the claim turns out to involve significant issues of fact, the Court may decide to treat it as a Part 7 claim or adapt its procedure as necessary. It is of particular note that any other person whose interests are affected has standing to bring a claim. Thus, a person whose work or business is impaired by the detention of the transporter may seek relief. Specialist advice will be required when seeking to make such an application.

Court ordered release – first basis

The County Court may release the transporter if it considers that satisfactory security has been tendered in place of the transporter for the payment of the penalty alleged to be due and the Secretary of State’s detention-connected reasonably incurred expenses; there is no significant risk that the penalty (or one or more of the penalties) and any detention-connected reasonably incurred expenses will not be paid; or there is a significant doubt as to whether the penalty is payable and the applicant has a compelling need to have the transporter released.

Court ordered release – second basis

The County Court may also release the transporter on the application of the owner of the transporter if a penalty notice was not issued to the owner or an employee of his (so say, for example, to the hirer), and it considers it right to release the transporter. In determining whether to release a transporter on this basis, the court shall consider the extent of any hardship caused by detention, the extent, if any, to which the owner is responsible for the matters in respect of which the penalty notice was issued, and any other matter which appears to the court to be relevant, whether specific to the circumstances of the case or of a general nature.

The detention of vehicles in default of payment – second basis for detention

Where a person to whom a penalty notice has been issued fails to pay the penalty by the specified date, the Secretary of State may make arrangements for the detention of any vehicle, small ship, small aircraft or rail freight wagon which the person to whom the penalty notice was issued uses in the course of a business (s. 36A).

This is a very broad and strong power, the exercise of which potentially strongly interferes with property rights: any such vehicle, etc., and on the basis merely that the person to whom the penalty notice is issued uses the carrier in the course of business. The exercise of this power in an individual case could cause significant damage to a person’s work or to the conduct of a  business.

A transporter may be detained whether or not the person to whom the penalty notice was issued owns it. However, as regards a vehicle, it may be detained only if the person to whom the penalty notice was issued is the owner or hirer of the vehicle, or drove the vehicle pursuant to a contract – whether or not a contract of employment-  with the owner or hirer of the vehicle when the penalty notice was issued.

This power to detain may not be exercised while a civil penalty appeal to the County Court is pending or could be brought. Further, the Secretary of State must arrange for the release of a vehicle, ship, aircraft or if the person to whom the penalty notice was issued pays the penalty, and the Secretary of State’s detention-connected reasonably incurred expenses.

Where a transporter is detained, the owner, consignor or any other person who has an interest in any freight or other thing carried in or on the transporter may remove it, or arrange for it to be removed, at such time and in such way as is reasonable. This allows for goods, including perishable goods, to be removed from the transporter.

Once again, while the Secretary of State’s detention of a transporter is lawful even though it is subsequently established that the penalty notice on which the detention was based was ill-founded in respect of all or any of the penalties to which it related, her act of detention enjoys no such protection if she was acting unreasonably in issuing the penalty notice. Thus, in an appropriate case, the particular use of this power may need to be assessed to see if it is compatible with Article 1, Protocol 1, ECHR (protection of property), as applied by the Human Rights Act 1998.

The procedure includes provision for a document to be issued to or served on a person out the UK (s. 36A10)).

The effect of detention in default of payment

As regards a transporter, as regards detention in default of payment (s. 36A), the person to whom the penalty notice was addressed, or the owner, or any other person whoseinterests may be affected by detention of the transporter, may apply to the County Court for the transporter to be released (s. 37).

Once again, the use of a hybrid procedure under CPR Part 8 may be appropriate for such an application, notwithstanding that there may be to some degree a dispute of fact. If the claim turns out to involve significant issues of fact, the Court may decide to treat it as a Part 7 claim or adapt its procedure as necessary. It is of particular note that any other person whose interests are affected has standing to bring a claim. Thus, a person whose work or business is impaired by the detention of the transporter may seek relief. Specialist advice will be required when seeking to make such an application.

Court ordered release – sole basis

The County Court may also release the transporter on the application of the owner of the transporter (i) if the detention was unlawful or (ii) ifa penalty notice was not issued to the owner or an employee of his, and it considers it right to release the transporter (s. 37(7)). In determining whether to release a transporter on this basis, the court shall consider the extent of any hardship caused by detention, the extent, if any, to which the owner is responsible for the matters in respect of which the penalty notice was issued, and any other matter which appears to the court to be relevant, whether specific to the circumstances of the case or of a general nature.

Conclusion

As can be seen, where a carriers’ liability civil penalty may be imposed, has been imposed, or has not been paid, the Secretary of State and her Immigration Officers have wide powers to detain vehicles, ships, aircraft, and rail freight wagons. Nonetheless, there is a court procedure to obtain the release of such transporters. On occasion, the particular use of a power may need to be assessed to see if it is compatible with Article 1, Protocol 1, ECHR (protection of property), as applied by the Human Rights Act 1998. Having considered the powers of detention in respect of transporters in Part 1, in Part 2 I will consider the issues arising as regards the Secretary of State’s power to sell them thereafter.