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. In Part 1 I considered the detention of transporters. Here, in Part 2 I consider the issues arising in relation to the sale of transporters.

The sale of a transporter detained in connection with civil penalties – first basis

As regards the sale of a transporter detained in connection with civil penalties (where a civil penalty notice has been issued), if the court has not ordered the release of the transporter, the Secretary of State may sell it if the penalty in question and any detention-connected reasonably incurred expenses are not paid before the end of the period of 84 days beginning with the date on which the detention began (s. 37(4)).

The power of sale may be exercised only when no appeal against the imposition of the penalty is pending or can be brought (s. 37(5)).

The power of sale lapses if not exercised within the prescribed period. That period is presently 80 days after the date upon which the power of sale could have first been exercised (i.e., the date at end of the 84-day period mentioned above), see Carriers’ Liability Regulations 2002, reg. 11. In calculating this period, no account is taken of any period during which the Secretary of State has applied to the County Court for leave to sell a transporter but the court has not determined that the transporter may be sold.

The sale of a transporter detained in default of payment – second basis

As regards the sale of a transporter detained in default of payment, if the court has not ordered the release of the transporter, the Secretary of State may sell it if the penalty in question and any detention-connected reasonably incurred expenses are not paid before the end of the period of 14 days as prescribed, see (s. 37(7) and the Carriers’ Liability Regulations 2002, reg. 12).

The power of sale may be exercised only when no appeal against the imposition of the penalty is pending or can be brought.

The power of sale lapses if not exercised within a prescribed period. That period is presently 80 days after the date upon which the power of sale could have first been exercised (i.e., the date at the end of the 14-day period mentioned above), see Carriers’ Liability Regulations 2002, reg. 11. In calculating this period, no account is taken of any period during which the Secretary of State has applied to the County Court for leave to sell a transporter but the Court has not determined that the transporter may be sold.

The sale of transporters – procedure  

As regards both the sale of transporters in connection with civil penalties and also in default of payment, further provision is made by Schedule 1 to the 1999 Act.

Leave (permission) of the Court

The sale of a transporter by the Secretary of State requires the leave (permission) of the County Court. That court may not give its leave except on proof that the penalty is or was due; that the person liable to pay it or any connected expenses has failed to do so; and that the transporter in respect of which the Secretary of State seeks leave to sell is liable to sale. Thus, while is respect of seeking release of a transporter from detention it is the person whose interests are affected who must apply to the court for release (see Part 1), as regards the sale of the vehicle, it is the Secretary of State who must apply to the court.

Notice

Before applying for leave to sell a transporter, the Secretary of State must take prescribed steps for bringing the proposed sale to the notice of persons whose interests may be affected by a decision of the court to grant leave; and for affording to any such person an opportunity of becoming a party to the proceedings if the Secretary of State applies for leave. This safeguard means that, where notified, any party whose interests may be affected may oppose the Secretary of State attempt to sell the transporter by becoming a party to the latter’s County Court application and resisting the sale.

Before applying to the County for leave to sell a transporter, the Secretary of State must take the following specified steps for bringing the proposed application to the notice of persons whose interests may be affected, see Carriers’ Liability Regulations 2002, reg. 9.

At least 21 days before applying to the court, the Secretary of State must publish a notice complying prescribed requirements in the London Gazette; in one or more newspapers circulating in the locality in which the transporter is detained; and where it is detained in Scotland in the Edinburgh Gazette and where it is detained in Northern Ireland in the Belfast Gazette.  
Further, at least 21 days before applying to the court the Secretary of State must, unless it is impracticable to do so, serve a notice which complies with prescribed requirements on any person to whom any “relevant penalty notice” was addressed.

For these purposes, a “relevant penalty notice” is a penalty notice in respect of which the transporter concerned is detained, together with any other penalty notice actually issued in respect of the same carriage of clandestine entrants.

Where any person who has been served with a notice informs the Secretary of State within 21 days of the service of the notice of their desire to become a party to the proceedings, the Secretary of State must make that person a defendant to the application. Thus, the obligation falls on the Secretary of State to ensure that the person whose interests are affected is joined to the proceedings. Given the draconian nature of what is proposed, authorisation under statutory warrant to dispose of a person’s property, this is an essential safeguard.

A notice must  (where reasonably possible) state the country of registration and registration number of the transporter; state the type of transporter and give any distinguishing features or markings that may serve to identify it;  state that, on the date specified in the notice, the transporter was detained under (as the case may be):  section 36(1) of the Act as security for the payment of one or more penalties due of the Act or section 36A of the Act in default of payment of one or more penalties due; and, that, unless payment of the sum due and any detention-connected reasonably incurred expenses is made within 21 days of the date of publication or (as the case may be) service of the notice, the Secretary of State shall, without further notice, apply to the court for leave to sell the transporter; and invite: (i) where the notice is published, any person who considers his interests may be affected by any sale of the transporter; or  (ii) where the notice is served on a person, that person, to inform the Secretary of State in writing within 21 days of the date of publication or (as the case may be) service of the notice if he wishes to become a party to the proceedings on the application. .

Making an application for sale

As already noted, the Secretary of State may make a claim in the County Court for leave to sell a detained transporter (under Part II of and Schedule 1 to the 1999 Act). It has been the practice of the Secretary of State to issue a CPR Part 8 Claim, together with an Application Notice when seeking such leave. A defendant served with such a claim must respond with an Acknowledgment of Service.

Service out of the jurisdiction

Given that the transporters in question are engaged in moving in and out of the UK, it is very common for prospective parties and/or defendants to be based outside the UK. Where a defendant is not present in the UK, the question arises as to whether the Secretary of State is entitled to serve the claim out of the jurisdiction without the court’s permission under CPR 6.33(3)?

In Secretary of State for the Home Department v Sedico Logistics SP. Z O. O.  [2026] EWHC 222 (KB) (a case concerning unpaid civil penalties), the High Court (Soole J) held that the Secretary of State did not need such permission.

CPR 6.33(3) provides:

‘The claimant may serve the claim form on the defendant out of the United Kingdom where each claim made against the defendant to be served and included in the claim form is a claim which the court has power to determine other than under the 2005 Hague Convention, notwithstanding that –

(a) the person against whom the claim is made is not within the jurisdiction; or

(b) the facts giving rise to the claim did not occur within the jurisdiction.’

Where proceedings arise under provision made by statute, as is the case here where the statutory foundation is the 1999 Act, the question arises as to whether service outside the jurisdiction is contemplated by that statutory provision such that CPR 6.33(3) applies and service may proceed without the court’s permission.

In re Harrods (Buenos Aires) Ltd [1992] Ch 72 at 116C Dillon LJ considered the equivalent to CPR 6.33(3) under the former Rules of the Supreme Court. His Lordship stated that:

‘…to be within Ord.11, r.1(2)(b) an enactment must, if it does not use the precise wording in the rule, at least indicate on its face that it is expressly contemplating proceedings against persons who are not within the jurisdiction of the court or where the wrongful act, neglect or default giving rise to the claim did not take place within the jurisdiction.’

As material, s. 35 of the 1999 Act, which makes provision for procedure, states as follows:

“(10) Any sum payable to the Secretary of State as a penalty under section 31A or 32 may be recovered by the Secretary of State as a debt due to him.”

and

“(12) A document which is to be issued to or served on a person outside the United Kingdom for the purpose of subsection (1) or (7) or in the course of proceedings under subsection (10) may be issued or served—

(a) in person,

(b) by post,

(c) by facsimile transmission, 

(ca) by electronic mail, or

(d) in another prescribed manner.”

Further in this regard, by way of legislation subordinate to the 1999 Act, regulation 14(2) of the Carriers’ Liability Regulations 2002 makes provision for a document issued or served on a person outside the UK for the purposes of section 35(1) or (7) of the 1999 Act, or in the course of proceedings under section 35(10) of that Act, or for the purposes of section 36A of that Act, so that it is to be taken to have been received by that person in prescribed circumstances. 

In Sedico, considering the matter under CPR 6.33(3) and having regard to the carriers’ liability scheme in the 1999 Act, Soole J at §§52-54 was satisfied that that the Secretary of State’s claim met the Harrods (Buenos Aires) test, such that permission was not needed to serve the claim on a defendant out of the jurisdiction.

Factors to be considered by the County Court on an application for sale

Where the owner of a transporter (note, not others whose interests are affected who may be parties to the proceedings) is a party to an application by the Secretary of State for leave to sell it, in determining whether to give leave the court must consider the extent of any hardship likely to be caused by sale; 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).

By such means the County Court is directed to what it must consider where the transporter’s owner is party to the proceedings. This does not prevent the court considering such matters such as the hardship caused in its discretion when the owner is not a party to the sale but another person whose interests are affected (e.g., the hirer or driver) is a party. That said, a person who is not the owner may face a harder struggle than the owner in seeking to persuade the court not to grant the Secretary of State permission to sell the transporter.

If leave for sale is given, the Secretary of State must secure that the transporter is sold for the best price that can reasonably be obtained.

Failure to comply with any requirement to give the prescribed notice or to secure the best price that can reasonably be obtained respect of any sale is actionable against the Secretary of State at the suit of any person suffering loss in consequence of the sale; but, after the sale has taken place, does not affect the validity of the sale. Thus, a civil action (founded on a statutory tort) may be brought against the Secretary of State where she acts in default of these obligations upon her. Any such action might be accompanied by a claim for a violation of Article 1, Protocol 1, ECHR (protection of property) rights under the Human Rights Act 1998.

Proceeds of sale

Any proceeds of sale arising from a sale must be applied in making prescribed payments; and

in accordance with such provision as to the prescribed priority of payments. Such prescription is made by regulations which may, in particular, provide for proceeds of sale to be applied in payment of customs or excise duty; of value added tax; of expenses incurred by the Secretary of State; of any penalty which the court has found to be due; in the case of the sale of an aircraft, of charges due as a result of regulations made under section 73 of the Civil Aviation Act 1982, or of any surplus to or among the person or persons whose interests in the transporter have been divested as a result of the sale, but not necessarily in that order of priority.

At present, the proceeds of any sale must be applied as follows, and in the following order:

• in payment of any expenses reasonably incurred by the Secretary of State in connection with the detention and sale of the transporter, including the Secretary of State’s expenses in connection with the application to the court;
• in payment of the penalties or (as the case may be) charges which the court has found to be due;
•  in payment of any duty (whether of customs or excise) chargeable on imported goods or value added tax which is due in consequence of the transporter having been brought into the UK;
• where the transporter is an aircraft, in payment of any charge in respect of the aircraft which is due by virtue of regulations under section 73 of the Civil Aviation Act 1982;
• and the surplus, if any, must be paid to or among the person or persons whose interests in the transporter have, to the knowledge of the Secretary of State, been divested by reason of the sale, see Carriers’ Liability Regulations 2002, reg. 13.

Conclusion

To an even greater extent that the Secretary of State’s power to detain a transporter, the power to sell a transporter is a draconian interference with property handed to the Secretary of State by Parliament. It is not just the owner of the transporter who may be affected but also the hirer, driver, or even the person whose goods are inside the vehicle.

Notably, 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. The use of such a broad and strong power could cause significant damage to a person’s work or to the conduct of a business.

Where the Secretary of State seeks the court’s leave to sell a transporter, a person whose interests are affected may oppose the sale in the proceedings. In addition, where the Secretary of State fails to comply with any requirement to give the prescribed notice or to secure the best price that can reasonably be obtained respect of any sale, a civil claim may be brought against the Secretary of State at the suit of any person suffering loss in consequence of the sale. As with court proceedings to release vehicles from detention, in an appropriate case, the Secretary of State’s 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.