Secretary of State for the Home Department v Ouedrani

Factual and Procedural Background

Immigration officers visited a pizza shop in The City on 12 October 2019 and found two individuals working illegally for the Defendant. One individual presented a counterfeit French identity card, and the Defendant was unable to produce records of right-to-work checks. The Secretary of State issued a civil penalty notice to the Defendant on 7 November 2019, requiring payment of £20,000, with a 30% discount available if paid within 21 days. The Defendant objected, but the Secretary of State maintained the penalty on 7 January 2020. The Defendant appealed to the county court, which reduced the penalty by £5,000 due to the deceptive yet convincing fake document but dismissed other grounds of appeal. The court ordered the Secretary of State to issue a fresh penalty notice reflecting the reduced amount and specifying a new date for payment under the fast payment option. The Secretary of State appealed that part of the order, challenging the court’s power to require issuance of a fresh penalty notice.

Legal Issues Presented

1. Whether the county court has the power under section 17(2) of the Immigration, Asylum and Nationality Act 2006 to order the Secretary of State to issue a fresh civil penalty notice following an appeal that reduces the penalty amount.

Arguments of the Parties

Appellant's Arguments

• The statutory powers of the county court on appeal under section 17(2) are limited to allowing the appeal and cancelling the penalty, allowing the appeal and reducing the penalty, or dismissing the appeal; the court has no power to order issuance of a fresh penalty notice.
• Ordering a fresh penalty notice would improperly enable the Defendant to make a fresh objection and appeal, contrary to the legislative scheme.
• Parliament expressly provided for issuance of fresh penalty notices only in the Secretary of State’s consideration of objections under section 16, not in court appeals under section 17.
• The fast payment discount scheme does not apply after an appeal to the court, so the court’s order to enable fast payment by issuing a fresh notice was misconceived.
• The Secretary of State should be permitted to withdraw the mistaken concession made by counsel below agreeing to the order requiring issuance of a fresh notice, relying on precedent allowing correction of such errors on appeal.

The opinion does not contain a detailed account of the Respondent’s legal arguments as the Respondent did not appear or make representations.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory framework under the Immigration, Asylum and Nationality Act 2006, focusing on section 17 which governs appeals against civil penalty notices. Section 17(2) explicitly limits the court’s powers to allowing the appeal and cancelling the penalty, allowing the appeal and reducing the penalty, or dismissing the appeal. The court found no statutory authority for ordering the Secretary of State to issue a fresh penalty notice upon allowing an appeal and reducing the penalty.

By contrast, section 16(5) expressly empowers the Secretary of State to issue a fresh penalty notice when considering objections, illustrating Parliament’s clear intent to restrict such powers to the Secretary of State and not the courts. The court noted that the fast payment option, which offers a 30% discount if payment is made within 21 days of the notice, applies only to the initial notice or the Secretary of State’s decision on objection, not to payments following a court appeal.

The judge’s order requiring the issuance of a fresh penalty notice to enable the Defendant to benefit from the fast payment discount after appeal was therefore inconsistent with the statutory scheme and the Code of Practice. The court accepted that the mistaken concession by counsel below had influenced the order but held that the Secretary of State was entitled to correct this error on appeal, consistent with established case law permitting withdrawal of mistaken concessions regarding points of law.

Holding and Implications

The court held that a county court has no power under section 17(2) of the Immigration, Asylum and Nationality Act 2006 to order the Secretary of State to issue a fresh civil penalty notice following an appeal that reduces the penalty amount. Accordingly, the appeal was allowed and paragraph 3 of the order requiring issuance of a fresh penalty notice was set aside.

The direct effect of this decision is to prevent courts from mandating re-issuance of penalty notices, thereby preserving the statutory scheme’s allocation of powers and limiting the availability of the fast payment discount to the initial penalty notice stage or Secretary of State’s objection decisions. No new precedent beyond the interpretation of the relevant statutory provisions was established.