Stowaway law tough but unfair, judge rules

The Government's policy of fining cross-Channel lorry drivers £2,000 for each stowaway found in their vehicles was condemned as "legislative overkill" by a High Court judge who ruled it illegal.

Mr Justice Sullivan, in a move predicted yesterday by The Independent, said the regime introduced by the 1999 Immigration and Asylum Act breached the drivers' right to a fair trial under Article Six of the European Convention on Human Rights. He also described the policy as "tough but not fair".

But ministers are to ask the Court of Appeal to overturn the ruling, which deals a serious blow to the Government's ability to deter lorry drivers from bringing illegal immigrants into the country.

Mr Justice Sullivan, allowing the claim of 50 lorry drivers and hauliers, ruled that the power to detain vehicles under the Act was not compatible with the protection of property under Article One in the First Protocol to the Convention. He said the policy also contravened European Union legislation because it acted as a restriction on the free movement of goods within the Community.

It was a "disproportionate" response to the acknowledged problem of clandestine entry and amounted to "legislative overkill", the judge said.

The Home Office said it was "disappointed" by the judgment and was seeking immediate leave to appeal. A spokeswoman said: "The civil penalty is an important element of the Government's strategy for dealing with the problem of clandestine entry into the UK.

"We believe requiring those who enter the country to indicate the goods or people they are carrying, and to carry responsibility for the goods and people they should not be carrying, is a fundamental right of any nation. We do not accept that it either infringes trade or human rights."

Mr Justice Sullivan said the "penalty regime" was tough but not fair to drivers who were often unaware that immigrants were hidden in their vehicles.

The judge also said that he was concerned that the policy discriminated against non-British lorry drivers who were being disproportionately fined. "German lorries are stopped more than twice as frequently as UK lorries, and penalty notices are issued almost twice as frequently," he said.

The court was told there were estimated to be 400 to 800 stowaways every month. Mr Justice Sullivan ruled that the Government may still issue penalty notices pending the appeal but may not enforce them. "The UK is not going to grind to a halt in the meantime – nor is the position likely to explode in a way which is uncontrollable," he said.

Jane Mulcahy, counsel for the Home Office, promised that any notices issued would make clear that the recipient was not obliged to pay anything until the Court of Appeal had decided the issue. So far, fines of £14m have been levied, with £2m paid.

The ruling was welcomed by the Road Haulage Association. The chief executive, Roger King, said: "I am delighted common sense has prevailed."

An appeal against the ruling is not expected to be heard until February or March.