Corporate liability in respect of forged documents

Ryanair were in court this week to appeal two civil fines imposed  by the Home Office under a provision of the Immigration and Asylum Act 1999, which permits the Home Secretary to penalize airline and ship owners if individuals arrive at UK passport control barriers without correct identity documents.

The Act states:

The Secretary of State may charge the owner of the ship or aircraft, in respect of the individual, the sum of £2,000.

The Act then provides a defence:

No charge shall be payable in respect of any individual who is shown by the owner to have produced the required document or documents to the owner or his employee or agent when embarking on the ship or aircraft for the voyage or flight to the United Kingdom. An owner shall be entitled to regard a document as:

  • being what it purports to be unless its falsity is reasonably apparent, and
  • relating to the individual producing it unless it is reasonably apparent that it does not relate to him.

The company was fined when two Albanian nationals were detained with false passports in Edinburgh, after flying from Spain on Greek passports. The judge acknowledged that the two had passed through Spanish boarder control and Ryanair ground checks.

Ryanair appealed the charges on the basis that the false nature of the passports would not have been reasonably apparent to the company’s ground staff. The judge agreed that the definition of reasonably apparent did not require ground crew to be experts in identifying forged passports and quashed the fines.

The full extent to which airlines and shipping companies have been fined under the provisions is not known. However, the judge revealed that in a previous year, Ryanair had paid a total of £400,000 in such fines, which roughly equates to some 200 people travelling without correct documentation. It is perhaps indicative that the provision of the Immigration and Asylum Act has been tolerated for some time.

Although not a criminal offence, the fines imposed draw a parallel with the extent a corporate entity can be held criminally liable for the actions of its employees or agents. Recent legislation, specifically the Corporate Manslaughter and Corporate Homicide Act 2007, and Bribery Act 2010 have sought to increase the extent to which corporate entities can be held criminally liable. Other areas of corporate misconduct remain the remit of regulators and civil law.

The reaction of the Home Office to this decision will be revealing. The post-appeal position is likely to be challenged. One wonders if Ryanair will come to regret the appeal if it leads to potential criminal charges in the future.

Practical Law David Bacon

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