Amelia Williams recently represented the Secretary of State for the Home Department in a statutory appeal brought under section 17 of the Immigration, Nationality and Asylum Act 2006, challenging the imposition of a civil penalty notice. The appeal was heard by HHJ Marquand.
The employer had been given a penalty of £40,000 after it was found to have employed an individual when they did not have the right to work in the UK and the employer could not demonstrate that they had performed the requisite checks before the employment began. Shortly before the appeal hearing the employer abandoned any challenge to its liability for the fine but instead argued that they had made a genuine mistake (mistaking an Application Registration Card for an Immigration Status Document), which meant that although they had carried out checks, they had not carried out the right checks, and that s.17(3)(b) of the Immigration, Nationality and Asylum Act 2006 gave the court a general discretion to reduce the penalty for reasons outside of the mitigating factors applied under the code. The Appellant argued that this general discretion was such that it allowed the judge to do justice on the facts of the case and take into account other factors such as the degree of culpability of an employer.
Having considered oral and written submissions by both parties on the correct interpretation of s.17 of the Immigration, Nationality and Asylum Act 2006, HHJ Marquand found that the statute did not provide the court with an unfettered discretion to reduce the penalty by factors which are not set out within the Code, and the court had to look at the penalty imposed in accordance with the Code of Practice in force at the time of the appeal. He highlighted that there was no mechanism within the statute to determine if penalties are too high for factors other than those set out in the Code of Practice, and if the Appellant was right then it would result in arbitrary decision by judges. Further, there would be many more appeals if the Judge was able to simply alter penalties outside of the mitigating factors in the Code of Practice. As such, the appeal was dismissed and the Secretary of State for the Home Department recovered her costs of responding to the appeal.
Amelia was instructed by Paul Maddock and Shaun Johnson at DWF.
Amelia is ranked in the Legal 500 as a leading junior in immigration law. She has been instructed in a number of statutory appeals brought under s.17 of the Immigration, Nationality and Asylum Act 2006.
