Statutory interpretation - Bogdanic -v- The Secretary of State for The Home Department; QBD 29-Aug-2014

The case concerns the operation of the carriers' liability regime in relation to the immigration control zones in France.

Mr Bogdanic, a lorry driver, had his vehicle searched in the immigration control zone at Dunkirk. Three stowaways (clandestine entrants) were found hiding in his vehicle. Mr Bogdanic and the owner of the transport company had fines imposed on them under Part II of the Immigration and Asylum Act 1999, as amended by the 2002 Act. The objective of the Act was to discourage lorry drivers from bringing clandestine entrant stowaways into the UK from abroad. Since the 1999 Act was brought into force in 2000 a number of UK border controls have been established outside of the United Kingdom territory in France including the immigration control zone at Dunkirk.

Bogdanic v The Secretary of State for The Home Department (2014) (QB) (British and Irish Legal Information)  concerns the operation of the carriers' liability regime in relation to the immigration control zones in France. The penalties were imposed on the basis that Part II of the 1999 Act had been effectively amended by the 2002 Act both in relation to the application of Part II in the territory of the United Kingdom and in relation to its application in the immigration control zones in France. In other words the fines could still be imposed although the immigration control zones were not in the UK.

Mr Bogdanic appealed and on appeal a point of law was identified and the case was transferred to the High Court so that the point of law could be determined.

The point of law in question related to the effect of the Commencement Order which brought the 2002 Act amendments to Part II of the 1999 Act into effect and which was agreed to be poorly drafted. The issue was whether the amendments related to immigration control zones in France as well as the territory of the UK. If the amendments did not apply to the control zones the fines could not be imposed.

The appeal raised the issue of whether the interpretative approach set out in Inco Europe Ltd v First Choice (2000) 1 WLR 586, HL, should be applied to the present case. Under the interpretative approach used in the Inco Europe case, a court may, in very limited instances, be able to adopt an interpretation of a legislative provision which had the practical effect of rectifying a defect in its drafting. The Secretary of State maintained that, pursuant to the guidance in Inco Europe the amendments to the 1999 Act related to immigration control zones in France as well as the UK.

Sales J in the High Court decided that the interpretative approach set out in Inco Europe should be applied to the Commencement Order, adding 'I think that implying words into the text of the Commencement Order in this way is somewhat clearer than substituting text for what already appears in that Order.'

The thinking behind this conclusion was that the true intention of the legislation was that it should apply equally in relation to immigration controls both on United Kingdom territory and in immigration control zones in France, and there was not a suggestion of any intention to draw a new distinction between them.

The present case was found to be an exceptional one in which it was appropriate to imply wording into the original legislative provision.

The Carriers' Liability Regulations 2002 – Legislation.gov.uk

Nationality, Immigration and Asylum Act 2002

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