A recent judgement by the Court of Appeal dismissed an attempt made by Irish airline, Ryanair, to avoid a £2,000 penalty imposed by the Home Office under section 40 of the Immigration and Asylum Act 1999, after a passenger arrived in the United Kingdom (UK) without valid immigration documentation.
On 30 January 2016 Ryanair flew Mr Alibegovic to the UK from Germany. Mr Alibegovic, a citizen of Bosnia and Herzegovina, was travelling with his son, an Austrian national and was in possession of a card issued by the Austrian authorities which stated ‘Daueraufenthalt-Familienangehoriger’ - translated as ‘Family member – permanent residency’. Upon viewing this document it was decided by ground-handling staff that Mr Alibegovic did not require a visa to travel to the UK and subsequently his boarding pass was stamped with ‘Visa Check OK’.
However, upon entering the UK, Mr Alibegovic was stopped by UK Border Force (UKBA) officials and refused leave to enter the United Kingdom because he could not produce a visa of the required kind. There were no compelling reasons provided in relation to Mr Alibegovich’s visit to the UK. He simply stated he was visiting as a tourist for one day and stated that a German official had confirmed he was ‘alright to travel’. Having refused Mr Alibegovic entry to the UK, UKBA ordered Ryanair to return him to Germany and he returned the next morning (ironically on the flight he was already booked to return on).
On 1 February 2016 the Home Office issued a “Notification of Potential Liability to a Charge” which warned Ryanair that it might be liable to a fine of £2,000 under section 40 of the Immigration and Asylum Act 1999 (IAA 1999).
Section 40, subsection (1) of the IAA 1999 states that ‘if an individual requiring leave to enter the United Kingdom arrives in the United Kingdom by ship or aircraft and, on being required to do so by an immigration officer fails to produce an immigration document which is in force and which satisfactorily establishes his identity and his nationality or citizenship and if the individual requires a visa, a visa of the required kind, the Secretary of State may charge the owner of the ship or aircraft in respect of the individual, the sum of £2,000.00’.
Following the initial warning, Ryanair received a Charge Notice from the Home Office, issued on 16 March 2016, which confirmed the penalty charge of £2,000.
Ryanair appealed against the charge pursuant to section 40B of the 1999 Act and the case went before Judge Wulwik on 29 November 2016 at the Central London County Court. Ryanair argued they were not liable under section 40 of the IAA 1999 stating that section 40 did not apply to Mr Alibegovic as he was a family member of an EU citizen and that section 40 was itself “an unlawful interference with EU law rights of free movement”. Judge Peter Wulwik found that liability did arise under section 40 if a passenger failed to produce proper documents. He further stated that, under EU Directive 2004/38 regarding the right to free movement, only a document bearing the words “Residence card of a family member of a Union citizen” was valid in cases where non-EU citizens travel without a visa. Ryanair’s challenge was therefore dismissed.
On appeal, Ryanair initially posed two grounds of appeal but expanded these to three grounds of appeal within their skeleton argument dated 21 November 2016. This change was noted by Mr Simon Colton QC, appearing for the Secretary of State, who argued that Ryanair had sought to expand the scope of the appeal. Regardless, the court of Appeal responded to each of the grounds as follows;
1) Whether Ryanair were liable to a section 40 charge:
This ground was dismissed on the basis that there was no question of the Secretary of State having had to prove that Mr Alibegovic did not have a right of free movement. Instead, it was decided that the Secretary of State must be entitled to impose a charge under section 40 of the 1999 Act wherever a passenger neither produces the documents required nor proves that he is covered by the right of free movement. The judgement went on to clarify that even if the Secretary of State bears the burden of proof regarding the right of free movement, they can be under no obligation to demonstrate that no evidence of a right to free movement was provided but further cannot be expected to prove that the individual lacked such a right.
2) If Ryanair were liable to a section 40 charge, whether it was appropriate for the charge to be imposed:
It was decided that where a passenger establishes that he has a right of free movement, section 40 will not apply. Section 40 is therefore not applicable where a passenger shows that he is entitled to enter the UK without a visa as he either has a valid residence card or ‘by other means’. In the circumstances, the court ruled that this ground of appeal could not assist Ryanair in the current case.
3) Whether section 40 is compatible with EU free movement law or should be dis-applied:
Ryanair argued that Judge Wulwik had erred in law by misinterpreting the UK and EU statutes. Ryanair argued that the requirement of the exact wording “Residence card of a family member of a Union citizen” is in direct conflict with the aim of the EU Directive 2004/38 which is to facilitate free movement of family members who are not nationals of a Member State. They went on to state as part of their argument that some Member States do not use this exact wording. Mr Colton, responding on behalf of the Home Office stated that this wording was required as set out under article 10 of the Directive and that the issue of some states failing to use such wording is seen as a problem for the European Commission. This argument was accepted by the Court of Appeal.
The court therefore concluded unanimously that Judge Wulwik correct in his judgement that the Home Office were entitled to fine Ryanair.
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