Cracks Appearing In The Civil Penalty Regime?

As published on Lexis Nexis

Immigration analysis: To what extent can check-in staff be expected to spot false documents? Meghan Vozila, solicitor in the immigration department at Healys, explains the background to Ryanair Ltd v Secretary of State for the Home Department and considers the wider implications of Judge Lochrane’s decision.

What is the background to the case?

Ryanair Ltd v Secretary of State for the Home Department is a case arising out of a set of civil penalties issued to a carrier for allowing passengers to travel to the UK using false documents.

The case concerns two Albanian nationals (a man and woman) traveling from Palma de Mallorca to Edinburgh via a Ryanair flight using forged Greek passports. Ryanair check-in staff did not identify the documents as forged and the pair boarded the plane. It was only on arrival in Edinburgh that UK Border Force discovered the forgeries (the crucial elements to identifying the forgeries appears to have been that the word HELLAS did not shift from green to blue when holding the passports to light and slightly tipping them and that the Greek flag at the top left side of the biodata page was slightly cut off).

It is unclear how the two made it to Spain (possibly also using the forged documents) but what was not contested was that the forged passports were viewed by the Spanish police at border control in Palma de Mallorca before reaching Ryanair’s ground control staff and that the Spanish police did not flag them as suspect.

The Home Office issued two civil penalties to Ryanair (£2,000 each) under section 40 of the Immigration and Asylum Act 1999 for allowing the pair to travel to the UK. Ryanair was unsuccessful in making objections to the Home Office regarding the issuance of the civil penalties and therefore appeal was brought, heard by Judge Lochrane in the Central London County Court.

 

What key issue did the case raise?

Judge Lochrane, apparently only recently indoctrinated into the world of immigration rule challenges, frequently expressed amazement as to the disparity between what he sees as a rather straightforward legal test to apply and the ‘relatively significant volume of Home Office policy guidance produced to support the operation’ of the test and the inconsistent application by the Home Office of that test. He also criticised the frequency of changes to the policy guidance and standards and that the changes are often made without notice.

The applicable legal test was that the Secretary of State had to satisfy the court to the civil standard of proof (on a balance of probabilities) that Ryanair check-in staff failed to identify forgeries which should have been reasonably apparent to trained check-in staff, and which policy guidance and training manuals interpreted as tampering that should be identifiable to the naked eye.

 

What did the Central London County Court decide?

The judge found that the evidence provided ‘falls well short of establishing that a trained representative with a basic knowledge of identification of false documents, etc  etc, should have been expected to pick up these irregularities.’ Furthermore, the judge found that the Home Office incorrectly applied a much higher test; that of what might be concluded to be a forgery by a highly-trained professional Border Force agent.

There is also a stunning criticism (at paragraph 35 of the judgment) of what the judge really suspects the civil penalty regime to be—a revenue-raising exercise—rather than what should be its primary function, to enable the UK Border Force to protect the borders and regulate immigration.

 

Why is this case of interest to immigration lawyers?

It should be of interest to immigration practitioners more widely as a well-reasoned, comprehensive criticism of immigration rule challenges on the basis that inconsistent voluminous policy guidance, often inconsistently applied by Home Office staff themselves, leads to a derogation from the appropriate legal tests and therefore the ability of the Secretary of State to discharge her burden of proof when reaching her decisions.

 

What are the wider implications?

This case is important not only for immigration practitioners assisting passenger carriers, but also those who represent individuals and organisations charged with performing devolved functions (such as employers and landlords) because there is clear inference here of the flaws in the civil penalty regime. How can employers and landlords who perform right-to-work and right-to-rent checks be expected to spot ‘reasonably apparent’ forgeries when trained airline staff do not?

 

Interviewed by Jenny Rayner. https://www.lexisnexis.com/uk/lexispsl/immigration/document/412012/5JC7-CV21-DYW7-W1JK-00000-00/Checking-in-with-the-civil-penalty-regime-for-carriers 

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.