ICS Car Srl v Secretary of State for the Home Department

Factual and Procedural Background

On 14 May 2013, a heavy goods vehicle operated by the First Appellant ("the Owner") and driven by the Second Appellant ("the Driver") was searched by Authorised Search Officers at the UK Immigration Control Centre in Calais. Three Afghan nationals were found concealed in the trailer. Following this discovery, the Respondent ("the Secretary of State") imposed civil penalties on the Owner (£900) and the Driver (£600) under the Immigration and Asylum Act 1999 ("the 1999 Act"). The Appellants challenged this decision by appeal to the Central London County Court, where His Honour Judge Bailey dismissed the appeals on 30 October 2014. The Appellants subsequently appealed that decision.

The Owner is a Romanian-incorporated freight company, and the Driver is its employee. The Owner agreed to transport copper wire from Osnabrück, Germany, to a UK destination. The Driver collected the consignment on 13 May 2013, stopping overnight in Belgium before proceeding to Calais the following morning. The vehicle arrived at the UK Control Zone at Calais at 9:50 am and was searched, revealing three concealed individuals who had entered through a cut in the trailer's canvas roof.

Legal Issues Presented

1. Whether the definition of "clandestine entrant" under section 32(1) of the 1999 Act requires proof of two distinct elements: (i) an attempt to pass through immigration control while concealed in a vehicle, and (ii) an attempt to evade immigration control.
2. Whether the place where the clandestine entrants were found constituted an area of "Immigration Control" within the meaning of section 32(10) of the 1999 Act.
3. Whether the Appellants could rely on the statutory defence under section 34(3) of the 1999 Act by showing lack of knowledge or suspicion of clandestine entrants, operation of an effective prevention system, and proper operation of that system on the occasion in question.
4. Whether the Secretary of State could withdraw a concession made below regarding the status of the Port of Calais as a prescribed control zone.
5. Whether fresh evidence relating to current conditions faced by hauliers and drivers when transporting goods through Calais should be admitted on appeal.

Arguments of the Parties

Appellants' Arguments

• The definition of "clandestine entrant" requires two separate elements; both must be proven distinctly.
• The Secretary of State failed to prove that the location where the clandestine entrants were found was an area of "Immigration Control" as defined by the statute.
• The statutory defence under section 34(3) applies because the Driver had no knowledge or reasonable suspicion of clandestine entrants, the Owner maintained an effective system to prevent clandestine carriage, and the Driver properly operated that system.
• The withdrawal of the concession regarding the prescribed control zone status of the Port of Calais was objected to.
• Fresh evidence about current conditions at Calais should be admitted to inform the Court of present-day realities.

Respondent's Arguments

• The two elements defining a clandestine entrant are satisfied simultaneously by concealment during passage through immigration control.
• The location at the Port of Calais is indeed a prescribed control zone under relevant regulations, and the earlier concession to the contrary was mistaken.
• The Appellants’ statutory defence fails because the final vehicle check was not carried out immediately before entering the UK Immigration Control zone, contrary to the requirements of the 1999 Code and the Owner's own vehicle security checklist.
• The Court should not admit the Appellants' fresh evidence as it does not materially affect the legal issues and is not in proper evidential form.
• The Court should permit withdrawal of the mistaken concession in light of the correct regulatory framework and relevant case law on withdrawing concessions on appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ladd v. Marshall [1954] 1 WLR 1489	Criteria for admitting fresh evidence on appeal.	The Court applied the principles to refuse admission of fresh evidence, finding it irrelevant to the legal issues and not in proper evidential form.
Jones v MBNA [2000] EWCA Civ 514	Extreme caution required before permitting withdrawal of concessions made in lower courts.	The Court acknowledged the principle but allowed withdrawal of the mistaken concession as it did not prejudice the parties or require new evidence.
Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40	Similar principle on withdrawal of concessions and appellate fairness.	Reinforced the Court’s approach in allowing withdrawal of the mistaken concession.
Paramount Export Ltd (in Liquidation) v New Zealand Meat Board [2004] UKPC 45	Public interest considerations in allowing new points on appeal without new evidence.	The Court considered public interest in permitting correction of the concession.
Crane (t/a Indigital Satellite Services) v Sky In-Home Limited [2008] EWCA Civ 978	Principles on raising new points on appeal and the circumstances under which permission is granted.	The Court applied these principles in assessing the withdrawal of concession and new points raised.
Pittalis v Grant [1989] QB 605	Limitation on raising new points on appeal involving new evidence.	Referenced in the context of caution in allowing new points that do not involve new evidence.

Court's Reasoning and Analysis

The Court analysed the statutory framework under the Immigration and Asylum Act 1999, focusing on the definition of "clandestine entrant" in section 32(1), the statutory defences in section 34, and the regulatory codes of practice issued under sections 32A and 33. The Court rejected the Appellants’ contention that the two elements of the definition must be proven as separate sequential acts, holding instead that concealment during passage through immigration control simultaneously satisfies both elements.

Regarding the status of the Port of Calais, the Court accepted the Secretary of State's correction that the Port is a prescribed control zone under the Carriers' Liability Regulations 2002 and the 2003 Order, despite the earlier mistaken concession. The Court considered relevant authorities emphasizing caution in withdrawing concessions but found withdrawal appropriate here as it did not prejudice the parties or require new evidence.

On the statutory defence, the Court closely examined the evidence of vehicle checks, including the Owner's "vehicle security checklist" and GPS data. It found that the final check was carried out over 100 kilometres from the UK Immigration Control zone and not immediately prior to entry as required by the 1999 Code and the checklist. Consequently, the Court held that the system was not effective under section 34(3)(b), and the Driver did not properly operate it on the occasion, rejecting the Appellants' defence.

The Court also refused to admit the Appellants’ fresh evidence concerning current conditions at Calais, reasoning that it did not materially illuminate the legal issues and was not in proper evidential form.

Holding and Implications

The Court's final decision was to DISMISS THE APPEAL.

This means the penalties imposed by the Secretary of State on the Owner and the Driver under the Immigration and Asylum Act 1999 are upheld. The Court confirmed that concealment in a vehicle during passage through immigration control satisfies the statutory definition of a clandestine entrant. It also clarified that the Port of Calais is a prescribed control zone for the purposes of the Act. The statutory defence was rejected due to failure to conduct a final vehicle check immediately before entering immigration control. The decision affirms the application of the statutory scheme and associated codes of practice without setting new precedent beyond the facts of this case.