International Transport Roth GmbH v Secretary of State for the Home Department: The Case of the Penalized Transporters

International Transport Roth GmbH v Secretary of State for the Home Department
[2002] H.R.L.R. 31
Court of Appeal (Civil Division)

22 February 2002

Brief Summary:

The respondents were four groups of lorry drivers and haulage companies. They sought judicial review of the penalty scheme enacted under Part II of the Immigration and Asylum Act 1999. Under the scheme owners, hirers, drivers or operators of vehicles were subject to a fixed penalty of £2,000 if they intentionally or negligently allowed a person to gain illicit entry into the United Kingdom by concealing him or herself in a vehicle of theirs. Furthermore, the scheme gave a senior immigration officer the power to detain a vehicle if he considered that there was a serious risk that the penalty would not be paid and satisfactory alternative security had not been given. The carrier could escape liability if he could show that he had been acting under duress ( section 34(2) of the Act) or that he had had neither actual nor constructive knowledge of the presence of the clandestine entrant, that an effective system for preventing the carriage of clandestine entrants had been in place and that that system had been operating properly at the relevant time ( section 34(3) of the Act).  

The court held that the statute should be regarded as criminal for Article 6 purposes because it was targeted at those seen as culpable and it imposed a high fixed penalty without the possibility of mitigation. Further, the statute was incompatible with Article 6 because the strict liability nature of the penalties meant that the penalty was not determined by an independent tribunal. Moreover, the statute also imposed an excessive burden on the carriers in breach of Protocol 1 Article 1.  The court therefore issued a declaration of incompatibility under section 4 of the Human Rights Act.

The Facts:

Part II of the Immigration and Asylum Act, 1999 was passed and a new penalty regime created to deter those intentionally or negligently allowing clandestine entrants into the U.K.
Under the statute, a clandestine entrant is someone who arrives illicitly in the United Kingdom by means of concealment in a vehicle, and those responsible, generally the owner, hirer or driver, are liable for each such entrant to a fixed penalty of £2,000 unless they can establish: (i) that they were acting under duress; or (ii)  (a) that they had neither actual nor constructive knowledge of the clandestine entrant; and (b) that there was an effective system for preventing the carriage of clandestine entrants, which (c) was operated properly on the occasion in question.

Moreover, once the Secretary of State has issued a penalty notice a senior immigration officer may detain the vehicle if he considers there is a serious risk that the penalty will not be paid and no satisfactory alternative security has been given. In that event the owner or driver may apply to the court which has power to release the transporter if: (a) satisfactory security has been tendered; (b) there is no real risk of the penalty not being paid; or (c) there is a real doubt as to whether the penalty is payable and the applicant has a compelling need to have the transporter released.

Respondents, who were four groups of lorry drivers and haulage companies (about 50 total), challenged the lawfulness of the scheme and the Home Secretary's decisions that they are liable for penalties under it.  These respondents had all had penalty notices and some of their vehicles had been impounded.  In these cases, the clandestine entrants were detected sometimes by immigration officers, sometimes by members of the public, and sometimes by the drivers themselves who then co-operated with the police in apprehending the culprits. In three of the cases before us, where the drivers only discovered that clandestine entrants were on board when already travelling up the motorway to London, they would never have been penalised had they not themselves alerted the police.

The Holding:

The court held that the statute's penalty scheme was criminal and not civil in nature because

it was focused on deterrence of dishonesty and carelessness.  Although the scheme also placed the burden of proof on the carriers to prove they were not dishonest or negligent, the reversed burden of proof was only to be taken into consideration under Article 6 - it was not an automatic violation of Article 6.  In fact, this reversed burden of proof when combined with the inflexible and substantial financial penalties required by the scheme, made the scheme unfair and in violation of Article 6.

 

More specifically, the court found that the penalty, which it was impossible to mitigate, far exceeded what any individual ought reasonably to be required to sacrifice in the interests of achieving improved immigration control.  Consequently, the scheme deprived respondents of the right to have their penalty determined by an independent tribunal.  The scheme's penalties also violated Protocol 1, Article 1 (right to one's possessions).

Villain?

 

The inflexibility of the scheme meant that it penalized even those who unintentionally transported illegal immigrants into the UK.  Even the most strident believers in strict border control would find that unfair.  No villains here.