Key Facts
- •Eight clandestine entrants were found in a KLG Trucking SRL-owned vehicle in Calais.
- •The driver had a partially completed security checklist.
- •KLG initially received a £36,000 penalty under section 32 of the Immigration and Asylum Act 1999.
- •KLG appealed the penalty, arguing non-compliance with the Carriers' Liability Regulations 2002 was not proven.
- •The County Court upheld the penalty.
- •KLG appealed to the Court of Appeal.
Legal Principles
The 1999 Act aims to encourage carriers to prevent the transport of clandestine entrants.
Immigration and Asylum Act 1999
Section 32 of the 1999 Act allows penalties for 'responsible persons' when clandestine entrants are found in a vehicle.
Immigration and Asylum Act 1999
The Secretary of State must state reasons for imposing penalties.
Immigration and Asylum Act 1999
Appeals are re-hearings, allowing the court to consider matters the Secretary of State may not have known.
Immigration and Asylum Act 1999
Regulation 2E of the 2002 Regulations requires written records of checks to be made as soon as practicable after relevant actions.
Carriers' Liability Regulations 2002
The proper completion of checklists focuses the driver's mind on security measures, reducing risk of omission; this goes beyond the mere evidential value.
Link Spolka v Home Secretary
The Secretary of State and the Court have discretion on whether and what penalty to impose.
Immigration and Asylum Act 1999, Section 32(2)
Outcomes
The Court of Appeal allowed the appeal in part.
The Court found the Judge's conclusion that KLG breached regulation 2E(2) was mistaken. The evidence did not definitively show that a record complying with regulation 2E(2) was not made. The Court re-exercised its discretion, considering the Penalty Code and other relevant matters.
The penalty was reduced from £36,000 to £18,000.
The Court applied a 25% reduction for KLG being a medium-sized enterprise and a 50% discount for acting to ensure compliance with Regulations (as KLG did not breach them as initially assumed).