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Haulier Succeeds On Strict Interpretation Of Section 32 (IAA 1999) For Clandestine Entrants

Haulier Succeeds on Strict Interpretation of Section 32 (IAA 1999) for Clandestine Entrants

Matthew Howarth, instructed by the specialist team at JMW Solicitors, recently represented an Appellant haulier in a significant civil penalty appeal that clarified the evidential standards required for establishing liability under section 32 of the Immigration & Asylum Act 1999.

The case, heard at Manchester County Court before HHJ Ransom, concerned a challenge to a civil penalty imposed following the discovery of nine individuals in a vehicle after it had passed through immigration control.

Section 32 Legal Framework and Evidential Burden

The case examined the fundamental requirements for establishing that individuals are “clandestine entrants” under section 32 of the Immigration & Asylum Act 1999. The statutory definition requires proof that a person:

  • Arrived in the UK concealed in a vehicle
  • Intended to seek asylum or evade immigration control
  • Was transported by someone liable under the Act

Burden of Proof: The judgment confirmed that the burden rests firmly on the Secretary of State to establish liability on the balance of probabilities, even in appeal proceedings
where the appellant challenges the penalty.

Evidential Challenges in Post-Immigration Control Discoveries

The case highlighted particular difficulties that arise when alleged clandestine entrants are discovered after a vehicle has passed through immigration control. HHJ Ransom noted that such circumstances create competing theories about how individuals came to be in the vehicle and their immigration status.

Key Evidential Issues Identified:

  • Limited Direct Evidence: The primary evidence came from a Police Constable, who described finding the individuals via hearsay evidence and provided minimal detail about
    their circumstances or immigration status.
  • Reliance on Inference: The Home Office’s case largely depended on drawing inferences from circumstantial evidence, including the presence of sleeping bags and immigration papers (with no indication what these papers were).
  • Insufficient Investigation: The court observed that the Home Office, having received the individuals at an immigration centre, should have gathered more comprehensive evidence given they were subsequently detained by the Border Force.

Judicial Analysis of Evidential Standards

HHJ Ransom’s judgment provided important guidance on the standards required in civil penalty cases under section 32:

On the Role of Inference: The judge emphasised that “it is not the court’s job to speculate” and that liability must be established on proper evidence rather than inference alone. The court noted it was “surprising that the SSHD relies on these inferences” when more direct evidence would have been available when the individuals were detained and interviewed.

Competing Theories: The judgment recognised that where individuals are found after immigration control, there are “competing theories” about their presence, including the possibility that they were “passing immigration control rip it up and claim asylum” rather than seeking to evade control. However, the starting point was that the Court must be satisfied that Section 32 is made out.

Evidence Gathering: The court observed that the Home Office, having received the individuals at an immigration centre, was in a position to gather comprehensive evidence about their status and intentions, but had failed to do so.

Legal Precedent and Standards

The case reinforced principles established in earlier authorities, including the requirement for a high level of evidence in clandestine entrant cases. The judge referenced the BMT case before Sephton KC, noting that each case turns on its specific facts but agreeing that “high level of evidence needed.”

Statutory Requirements: The judgment confirmed that all elements of the section 32 definition must be proven:

  • Physical concealment in the vehicle
  • Arrival in the UK in that concealed state
  • Intent to seek asylum or evade immigration control

Practical Implications for Future Cases

The decision establishes several important principles for civil penalty cases:

Investigation Standards: The Home Office must conduct thorough investigations and gather direct evidence rather than relying on circumstantial inference, particularly when individuals are in their custody.

Post-Control Discoveries: Cases involving discovery after immigration control require careful analysis of competing explanations for the individuals’ presence and status.

Evidential Burden: The statutory burden on the Secretary of State cannot be discharged through speculation or insufficient investigation.

Outcome and Significance

The appeal was allowed in full, with the court finding that the appellant hauliers were not liable under section 32 of the Immigration & Asylum Act 1999. The decision provides important clarification on evidential standards in civil penalty cases and emphasises the need for proper investigation and evidence gathering by the Home Office.

The case demonstrates the importance of rigorous legal analysis in challenging civil penalty decisions and the courts’ willingness to scrutinise the quality of evidence presented by the Secretary of State.

KLG Trucking SRL v Secretary of State for the Home Department [2024] EWCA Civ 737 can be read on National Archive, Baili and Westlaw:
https://caselaw.nationalarchives.gov.uk/ewca/civ/2024/737