On 26 May 2015, two passengers aboard a Ryanair flight from Palma de Mallorca arrived at Edinburgh Airport. The two were travelling on Greek passports which had been inspected at least twice, including once by Spanish officials, before boarding the flight with no apparent problems. In Edinburgh, the two were stopped by UK Border Force officers who identified irregularities with the passengers’ documents. The passports were determined to be forgeries and the two passengers identified as Albanian nationals and detained. As a result of its failure to pick up on the false documents, Ryanair was charged GBP 2,000 for each passenger, totalling GBP 4,000, under long-standing UK regulations.

These charges and the policy behind them have been opposed by carriers since their inception, with little promise of repeal or satisfactory recourse. Carriers now consider the majority of individual charges not worth the cost of challenging, and are mostly resigned to living with this hefty cost of doing business (for instance, Ryanair offered evidence that these charges amount to over GBP 400,000 per year for the airline).

Choosing to challenge these particular charges rather than accept them as business as usual, Ryanair appealed the decision of the Home Office to the Court; and with the comprehensive and at times highly critical ruling in Ryanair v Secretary of State for the Home Department, the Central London County Court may have provided an opportunity to shake up the current state of affairs.

History of regulation

Immigration (Carriers’ Liability) Act 1987 (“ICLA”) The ICLA first imposed financial sanctions on carriers bringing passengers to the UK who lack the necessary entry documents; the underlying policy being to prevent those wishing to enter the UK illegally from doing so. The ICLA imposed fines of GBP 1,000 for each illegal entrant brought to the United Kingdom. This fine was doubled to GBP 2,000 in August 1991 and two years later was extended to cover passengers without transit visas where these were required.

The ICLA provided a defence whereby a carrier is not liable for the falsity of a document if such falsity is not “reasonably apparent”, but the legislation provided no definition or guidance as to under what circumstances irregularities in a travel document may be “reasonably apparent”.

The ICLA was met with strong opposition from the air transport industry, which argued that it was inappropriate for private carriers to assume the public role of immigration officers. The ICLA was implemented in the face of this opposition – and very strictly implemented from the very start. Charges of several million pounds began to be levied and by the mid-1990s reached an average of GBP 12 million per year.

Following implementation of the ICLA, a major complaint arose that carriers were being fined for passengers who did not possess the proper travel documents, but who had been reviewed and had their documents approved for entry by national border and immigration officials, including UK authorities. Further, these passengers included legitimate business travellers and tourists, rather than those individuals targeted by the legislation.

In response, the Approved Gate Check Status (“AGC”) scheme was introduced in which charges are waived in respect of passengers arriving from approved AGC airports with improper documentation. An appeals process was also adopted in which carriers’ could appeal to the enforcement 

authorities for the review of individual cases and guidelines were issued allowing the authorities to use discretion in particular circumstances.

Notwithstanding these moderating measures, the fines and responsibilities placed on carriers continued to prove significant.

Immigration and Asylum Act 1999 – Section 40 (“1999 Act”)

Section 40 of the 1999 Act replaced the ICLA (which has now been repealed). However, the liability of carriers for charges incurred in respect of the transport of persons arriving in the UK without proper documentation remains.

The 1999 Act maintains the GBP 2,000 charge per individual. Likewise, the carrier has a defence if it is able to show that the falsity of the document is not “reasonably apparent”; however, the Home Office has produced greater guidance in determining what standard of falsity amounts to “reasonably apparent”. Additionally, the legislation provides a more robust and clear-cut appeals process.

According to the official guidance, the falsity of a document is “reasonably apparent” “if it is of a standard which a trained representative of the carrying company, examining it carefully but briefly and without the use of technological aids, could reasonably be expected to detect”. Further, “a ‘trained representative’ would be expected to have a level of basic knowledge of how to identify false documents, but not to be expert nor to have the resources for a highly detailed examination”. As will be seen below, this guidance fails to provide much clarity.

Carriers are also afforded a more structured appeals process that includes judicial review. On receiving a Notification of Charge, carriers have 30 days in which to make representations and provide accompanying evidence explaining why the carrier believes it is not liable to the charge. Representations are usually made in writing; however, large carriers with a large number of charges hold regular meetings with officials to present their representations verbally.

Following review of the representations, officials may choose to waive the charge or issue a Charge Notice advising the carrier that it has 30 days to pay the charge. If the carrier continues to believe that a charge should not have been imposed, it may make a written objection to the Home Secretary or appeal directly to the Court.

A written objection must provide reasons for the objection and be delivered within 28 days of the Charge Notice. An appeal must be filed within 28 days of the Charge Notice or, if the carrier has made a written objection, within 28 days of service of the Home Office decision responding to the objection.

Ryanair v Secretary of State for the Home Department

The case concerns two Albanian nationals (a man and woman) traveling on forged Greek passports. It is unclear how the two made it to Spain, but it was not contested that the falsified passports were reviewed by the Spanish police at border control in Palma de Mallorca before reaching Ryanair’s ground control staff and that the Spanish police did not identify them as suspicious.

UK immigration officials determined the passports were forged based upon two specific issues: (i) there was no green to blue colour shift in the ink spelling the word ‘HELLAS’ when holding the passports in light and slightly tipping them; and (ii) the Greek flag concealed in the top left-hand corner of the biodata page was slightly cut off. Ryanair was charged under s.40 of the 1999 Act for both individuals.

Ryanair made a representation to UK Border Force officials that the falsities of the documents in question were not “reasonably apparent”. Upon brief review, the officials disagreed. Ryanair chose to appeal this decision to the Central London County Court. On 21 January 2016, the Court issued its opinion in favour of Ryanair and requiring the Home Office to adopt a clearer, reasonable and objective standard.

In determining the applicable standard to which a carrier should be held, the Court turned to the guidance produced by the Home Office discussed above, and the direction that a falsity is reasonably apparent “if it is of a standard which a trained representative of the carrying company, examining it carefully but briefly and without the use of technological aids, could reasonably be expected to detect”. The Court found this guidance to be confusing and difficult to interpret; and that this lack of clarity results in carriers not being able to fully understand their obligations.

The Court also determined that the official guidance is frequently changed without adequate notification or emphasis on its importance. The result, as the Court stated, is an “inconsistent application of inconsistent standards” and a more reasonable objective standard must be adopted.

The Court’s criticism of the manner in which the charges are currently levied, and the seemingly out-of-hand way they were handled in the matter at issue, went so far as to explicitly instruct the Home Office that it must not regard the charges as a “revenue raising exercise”.

The Court sought to establish what elements may go toward a proper standard. First, “it is clear that the standard expected of a trained representative...must be lower” than the professionals at the UK Border Force. Second, where national immigration authorities and trained carrier representatives with basic knowledge both fail to identify any irregularities, this must be evidence that goes toward determining whether or not such irregularities can be regarded as being reasonably apparent.

The Court stated that there should be no general expectation on the part of the Home Office that trained carrier representatives with basic knowledge be expected to detect irregularities that go undetected by national border control authorities. That said, irregularities that go undetected by national authorities would not automatically exculpate a carrier from identifying reasonably apparent problems in a document. However, if both fail to spot the issue, it seemed to the Court that, without further evidence of negligence or corruption or similar intervening events, this amounts to evidence against any suggestions that such an irregularity was reasonably apparent. The Court stated “it is not the job of the carriers to permit or refuse entry or exit; that duty under UK law lies with the Border Force”, whereas the carrier’s duty is to look for reasonably apparent irregularities and alert the relevant authorities of the same.

The Court concluded that the burden is on the Home Office to establish on a balance of the probabilities that the issues complained of were indeed reasonably apparent based upon a reasonable and objective standard and that each event must be considered on its own circumstances. In this particular instance there was “powerful evidence” against finding the irregularities were reasonably apparent.

Future Issues and potential future regulation

It is difficult to imagine that the charges against carriers in this area will be radically revisited as the result of a single, non-precedential County Court ruling. And while it is unclear whether the Home Office will appeal the ruling, it seems much more likely that the UK authorities will continue to levy the charges when falsities are reasonably apparent depending upon the circumstances - and carriers will continue to pay the charges.

In fact, rather than scaling back current carrier charges, new, additional carrier charges are being proposed. The Immigration Bill 2015/2016 presently being considered by Parliament includes provisions allowing for new civil penalties for carriers who fail to properly direct passengers to immigration control at the UK border.

It will be interesting to see if further challenges are made by carriers to future changes; or if the decision in Ryanair is to be regarded as a one-off happy result while the unhappy status quo continues.