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Immigration Penalties on Airlines Violate the Rule of Law

aircraft7It is a fundamental principle of law that criminal or quasi-criminal penalties must not be imposed without clear proof of wrongdoing. In one important case which made that point, an airline which was fined £4,000 after flying two illegal immigrants into Britain had the penalties overturned by a judge.

Under the Immigration and Asylum Act 1999, airlines can be fined where they fail to spot false passports or other documents prior to travellers presenting them at UK passport control. With each immigrant who makes it through the net costing airlines £2,000, millions of pounds had been paid in penalties since the law was introduced.

One budget airline, which estimated that the provision cost it more than £400,000 a year, objected after it was fined £4,000 in respect of two Albanian passengers who arrived at Edinburgh Airport carrying false Greek passports. The Home Office said that the forgeries were ‘reasonably apparent’ without the use of technological aids and that the airline had failed to take sufficient care.

In ruling on the airline’s appeal, the judge observed that the Home Office had in effect devolved part of its duty to protect the UK’s border from unlawful immigration onto private airlines. However, it remained the duty of the UK Border Force, not airlines, to permit or refuse entry to Britain. The passports in question had been inspected by Spanish police and the airline’s ground staff before the flight took off.

The penalties regime had caused widespread confusion, not least because there was in fact no proper statutory definition of what constitutes the offence. Home Office guidance did not fill that gap in that it did not make it reasonably apparent to airlines what they were required to do in order to avoid incurring a penalty.

Airline staff faced an enormous task in handling vast numbers of travel documents and their level of skill could not be equated to that of highly trained immigration officers. It was also clear that penalties had been imposed inconsistently across the country. In overturning the penalties, the judge found that their imposition offended against basic concepts of justice and, ultimately, the rule of law.