Bolle Transport BV v Secretary of State for the Home Department

Factual and Procedural Background

The appellant, Company A, a haulage business incorporated in the Netherlands, operated large goods vehicles transporting trailers between the Netherlands and the United Kingdom. On 16 October 2013, a driver employed by Company A was instructed to deliver and collect trailers at an airport in The State. The driver was not present during the loading of one trailer, which was left unattended while loading was completed and sealed by airport staff under security supervision.

After the trailer was sealed and transported to a Royal Mail depot in The City, six clandestine entrants were discovered hidden in the trailer. The Secretary of State for the Home Department imposed a civil penalty on Company A under the Immigration and Asylum Act 1999 ("the 1999 Act"). Company A appealed the penalty, arguing it had a statutory defence under section 34 of the 1999 Act, and that the penalty amount was excessive.

The appeal was heard by His Honour Judge Yelton at the Cambridge County Court on 29 May 2014, who dismissed the appeal but reduced the penalty from £7,200 to £6,000 due to an error in the respondent's assumption about previous penalties. Permission to appeal was later granted on the basis that important legal questions arose regarding the operation of penalties under the 1999 Act.

Legal Issues Presented

1. Whether the appellant was liable to pay a penalty under the 1999 Act for carrying clandestine entrants.
2. Whether the appellant established a statutory defence under section 34(3) of the 1999 Act by demonstrating an effective system to prevent clandestine entrants.
3. Whether the court erred by failing to exercise its discretion in deciding whether to impose a penalty, notwithstanding the appellant's failure to establish the statutory defence.
4. Whether the penalty imposed was excessive and should be reduced further.

Arguments of the Parties

Appellant's Arguments

• The judge incorrectly treated liability as strict, preventing proper exercise of discretion on whether to impose a penalty.
• The judge failed to re-exercise the discretion conferred on the Secretary of State when determining the appeal by way of re-hearing under section 35A.
• Given the appellant's inability to control the airside loading process and to perform required checks, the discretion should have been exercised to cancel the penalty.
• The judge was wrong to find the statutory defence under section 34(3) was not made out, as it was impossible for the driver to perform the checks required by the Operating Code.
• The penalty was excessive because the judge did not properly consider factors in the Level of Penalty Code.

Respondent's Arguments

• The judge correctly understood the nature of the exercise, including its discretionary element, and did not err.
• The appeal below was solely based on the statutory defence under section 34(3), so the judge was not asked to address discretion explicitly.
• The judge's decision on penalty was appropriate and consistent with the Level of Penalty Code.
• If this court finds the judge failed to exercise discretion, the respondent would not oppose the court re-exercising it on the evidence.
• The appellant did not have an effective system to prevent clandestine entrants during the loading process at the airport.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed whether the appellant established the statutory defence under section 34(3) of the 1999 Act, which requires showing an effective system for preventing clandestine entrants was in operation and properly operated on the occasion in question. The court upheld the lower judge’s finding that the appellant did not have such a system in place, nor evidence that the third-party loader (DHL) operated such a system or provided assurances or written confirmation that checks had been properly conducted.

The court rejected arguments that the appellant’s inability to control or check the loading process excused liability, emphasizing that the Operating Code envisages the possibility of obtaining written confirmation from the loader when the driver is not present. The absence of evidence that the appellant sought or obtained such confirmation was critical.

Regarding the judge’s use of the term "strict liability," the court clarified that this did not undermine the decision on the defence. It acknowledged that liability is strict but subject to the statutory defence.

The court found that the lower judge failed to explicitly exercise the discretion under section 35A(2)(a) to consider whether, despite the failure of the statutory defence, the penalty should be cancelled in the exercise of discretion. The court held that this discretion should be re-exercised on the existing evidence.

In exercising the discretion, the court rejected the appellant’s submission that the penalty should be cancelled due to inability to control the loading process. It emphasized that carriers must seek appropriate assurances from consignors and that failing to do so does not justify excusing liability. This approach aligns with the legislative policy to combat illegal entry effectively.

Finally, the court considered whether the penalty was excessive and found no error in the judge’s discretionary reduction of the penalty from £7,200 to £6,000. The judge had regard to the Level of Penalty Code and the appellant’s operational measures, such as electronic tracking, but found the penalty appropriate in all the circumstances.

Holding and Implications

The court DISMISSED the appeal, upholding the decision that the appellant was liable to pay a penalty under the 1999 Act, and that the statutory defence under section 34(3) was not established. The court exercised its discretion to uphold the reduced penalty of £6,000.

The decision confirms that carriers are strictly liable for clandestine entrants found in their vehicles unless they can establish an effective system to prevent such carriage, including obtaining assurances or confirmations where the driver cannot be present during loading. The ruling reinforces the legislative intent to place responsibility on carriers to prevent illegal entry, and clarifies that inability to control third-party loading operations does not absolve liability absent proactive measures to secure assurances.

No new precedent was set beyond clarifying the exercise of discretion and the application of the statutory defence in the context of third-party loading arrangements.