Case No: B2/2015/3324
Neutral Citation Number: [2017] EWCA Civ 16
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT OLDHAM
DISTRICT JUDGE FOX
[2015] EWHC 2990
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/01/2017
Before:

LADY JUSTICE ARDEN
LORD JUSTICE MCFARLANE
and
THE HON. MR JUSTICE CRANSTON

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Between:

	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Appellant	
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	MOHAMMED AKBAR	Respondent	

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Mr James Chegwidden (instructed by the Government Legal Department) for the Appellant
Mr Sohail Mohammed (instructed by Kingstons Solicitors) for the Respondent

Hearing date: 15 December 2016

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Judgment
Mr Justice Cranston: 
Introduction
1.	This is an appeal by the Secretary of State for the Home Department (“the Secretary of State”) against a decision of District Judge Fox of 21 September 2015.  Sitting in the Oldham County Court the judge allowed a statutory appeal by Mr Mohammed Akbar against a decision by the Secretary of State to impose a civil penalty on him under section 15 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”) for employing illegal workers.  The judge did this on the basis of what he said were serious procedural failings by the Secretary of State in the conduct of the appeal before him.
2.	In my view the judge was in error to allow the appeal without examining the nature of the Secretary of State's procedural failings and the reasons for them.  If there had been serious procedural failings – I do not think that there were - the judge should have considered whether other courses were open to him and whether allowing the appeal was a proportionate response when compared with the magnitude of the Secretary of State’s mistakes.
3.	I have some sympathy for the judge in light of the situation he faced on 21 September.  He had a heavy list and it soon became evident that Mr Akbar’s appeal would not proceed smoothly, if at all.  Despite the best efforts of counsel for the Secretary of State, the judge was misled as to the nature and extent of her procedural failings.
4.	At the outset of the hearing before us, the Secretary of State raised the question of the jurisdiction of the Court of Appeal to consider her appeal.  This was the first time she had appealed to this court from a judgment of the County Court after an employer had successfully challenged a civil penalty under the 2006 Act.  There had been appeals to this court by those on whom civil penalties were imposed, such as in Yadly Marketing Co Ltd v. Secretary of State for the Home Department [2016] EWCA Civ 1143.  Whether this court had jurisdiction to hear the appeal had not been considered in those cases.  The Secretary of State was neutral on the issue (as was Mr Akbar) but she wanted guidance for the future since there was uncertainty amongst those practicing in the area.
Jurisdiction of Court of Appeal
5.	As a preliminary matter the court decided that it has jurisdiction to hear appeals such as this from decisions of the County Court regarding civil penalties imposed under the 2006 Act.  A county court decision in that regard is made on appeal so a second appeal lies to the Court of Appeal.  In reaching this conclusion the court considered that the result is consistent with its earlier decisions on analogous statutory provisions, such as in Azimi v. Newham LBC (2001) 33 HLR 51 (appeal to this court from County Court: a person had appealed on a point of law under section 204 of the Housing Act 1996 to that court against a review decision by a local housing authority that his family was not homeless).
6.	Appeals against decisions of the Secretary of State to impose a civil penalty under the 2006 Act are addressed by section 17 of that Act.  It provides, in part:
“17. Appeal
(1) An employer to whom a penalty notice is given may appeal to the court on the ground that –
(a) he is not liable to the imposition of a penalty,
(b) he is excused payment by virtue of section 15(3), or
(c) the amount of the penalty is too high.
(2) The court may—
(a) allow the appeal and cancel the penalty,
(b) allow the appeal and reduce the penalty, or
(c) dismiss the appeal.
(3) An appeal shall be a re-hearing of the Secretary of State’s decision to impose a penalty and shall be determined having regard to –
(a) the code of practice under section 19 that has effect at the time of the appeal (in so far as the appeal relates to the amount of the penalty), and
(b) any other matters which the court thinks relevant (which may include matters of which the Secretary of State was unaware);
and this subsection has effect despite any provision of rules of court.”
7.	In broad terms section 17(4B) provides that an appeal must be brought within 28 days.  “Court” for the purposes of an appeal when the employer has its principal place of business in England and Wales is the County Court: s. 17(6)(a).  The ground referred to in section 17(1)(b), contained in section 15(3), is that:
“(3) An employer is excused from paying a penalty if he shows that he complied with any prescribed requirements in relation to the employment.”
8.	In passing there are a number of points to note about section 17(1).  First, it effectively limits the grounds of appeal and places the burden on an employer to demonstrate to the court that it is not liable, that it complied with the statutory requirements or that the penalty is too high.  Although the burden is not on the Secretary of State to uphold the penalty notice, we were informed that in practice she produces the bundles and proceeds first at an appeal hearing.  By setting out her case the first proceedings are more efficiently conducted.  Secondly, the penalty remains payable until an employer’s appeal is successful, although we were told that in practice the Secretary of State does not seek to enforce a penalty while an appeal is ongoing.
9.	Section 17(3) makes clear that appeals by employers are by way of a rehearing, not a review, and that the County Court can consider all relevant matters, even if the Secretary of State was not aware of them at the time.  In this regard the ordinary rules of court are disapplied.  An appeal by way of rehearing is a reconsideration of the matter, on the evidence the Secretary of State considered, but with the statutory power to consider new matters as well: cf. Re Chenell, Jones v. Chennell (1878) 8 Ch D 492, at 504-505, per Jessel MR.
10.	There is the limit to appeals posed by section 17(3)(a), that an appeal concerning the level of penalty must have regard to the relevant code made under section 19.  That is the Code of Practice, Prevention of Illegal Working, Civil Penalties for Employers, which spells out how penalties are to be determined.  There is no requirement that an employer must first obtain permission to appeal to the County Court.  No indication is given in the statute whether the appeal to the County Court should be heard by a district judge or a circuit judge.  Judicial allocation should take into account, however, that the next stop is the Court of Appeal.
11.	Appeals to the County Court under section 17 of the 2006 Act are thus not on all fours with ordinary appeals under Part 52 of the Civil Procedure Rules (“the CPR”).  Generally speaking these require permission to appeal; an application to appeal must be made within 21 days of the hearing; the appeal is by way of review, and oral evidence and evidence not before the lower court will not be considered: CPR 52.3(1), 52.4(2)(b), 52.11(1), 52.11(2).  In other respects CPR Part 52 applies to section 17 appeals since “lower court” is defined in CPR r.52.1(3)(c) to include not only a court or tribunal but also an “other person or body from whose decision an appeal is brought”.  Appeals from the decision of the Secretary of State to impose a penalty under the 2006 Act are within that definition.
12.	As a second appeal, appeals against a decision of the County Court on a section 17 appeal are to the Court of Appeal: Access to Justice Act 1999 (Destination of Appeals) Order 2016, 2016 SI No 917, article 6 (for appeals such as this before 3 October 2016, Access to Justice Act 1999 (Destination of Appeals) Order 2000, 2000 SI 1071, article 5).  This is the case even if, as here, the deciding judge is a district judge, not a circuit judge.  A second appeal from a district judge elsewhere, with the possibility of a further appeal to this court, would run counter to the purpose of section 55 of the Access to Justice Act 1999, that one level of appeal is the norm: see Henry Boot Construction (UK) Ltd v. Malmaison Hotel (Manchester) Ltd [2001] QB 388, 399E-400G, per Waller LJ.  Applications to this court to appeal a decision of the County Court regarding a penalty notice under the 2006 Act must obviously meet the stringent tests which ordinarily apply to second appeals.
The penalty notice in Mr Akbar’s case
13.	On 9 January 2015, the Secretary of State's Immigration Enforcement division  issued Mr Akbar with a civil penalty notice (“the penalty notice”) under section 15 of the 2006 Act for employing two persons who were not entitled to work in the United Kingdom, Babar Hussain and Aneel Saddique.  The penalty notice explained that in view of Mr Akbar’s cooperation the amount of the penalty had been reduced to £20,000, and would be discounted further to £14,000 if paid within 21 days.  Objections to the penalty notice, it said, should be sent to the Civil Penalty Compliance Team, PO Box 99, Manchester.
14.	The penalty notice followed a visit by immigration enforcement officers to the International Chippy, Rochdale, on 7 November 2014, when they encountered Mr Hussain and Mr Saddique.  When Mr Saddique was interviewed he conceded that he started working at the premises a month prior to the visit, from 08:30am to 10:00am, 6 days a week, his day off being Thursday.  He was paid £220 per week in cash and his role was cleaning.  He accepted that he did not have permission to work in the UK. The enforcement officer observed him to be standing in the kitchen at the time of the visit, wearing a black and grey apron.
15.	When Mr Hussain was interviewed he stated that he accepted working at the premises 3-4 weeks prior to the visit, Saturdays, Sundays, Tuesdays and Fridays from 5/6pm until 10pm.  He stated that he received food and phone cards in return for his work.  His job was to serve customers and to help clean the machines.  He accepted that he was working illegally. At the time of the visit he was observed to be cleaning a frying pan and frying oil.
16.	After the visit an Information Request was sent to Mr Akbar on 10 December 2014, as the employer at the International Chippy.  In the response form he asserted that Mr Hussain and Mr Saddique were not employed at the premises.  Rather, Mr Hussain was married in the UK, had been bored and wanted to do “some learning and passing time”.  Mr Saddique “came in for training” and had produced his Rochdale College student card.  Mr Akbar provided a photocopy of an expired passport and visa for Mr Saddique.
17.	The penalty notice was then issued.  It firmly rejected Mr Akbar’s explanation.  It stated that both Mr Saddique and Mr Hussain were of Pakistani nationality and neither had the right to work in the UK.  Yet the evidence gathered by the officers demonstrated that Mr Hussain and Mr Saddique were fulfilling a role salaried employees would normally occupy and were therefore employed in breach of section 15 of the 2006 Act.  The penalty notice stated that in light of all the evidence, Mr Akbar had not demonstrated and recorded that he had undertaken appropriate checks to determine whether Mr Hussain and Mr Saddique possessed the right to take employment in the UK.
18.	On 5 February 2015 Mr Akbar lodged a notice of objection to the penalty notice under section 16 of the 2006 Act.  At this point, Kingstons Solicitors (“Kingstons”) gave notice that they were acting on Mr Akbar’s behalf.  The section 16 notice claimed that Mr Akbar had undertaken appropriate checks on Mr Hussain and Mr Saddique and that if any of the relevant documents were forgeries this would not have been reasonably apparent.
19.	On 25 February 2015 the Secretary of State considered Mr Akbar’s objection and issued an “Objection Outcome Notice (Penalty Maintained)”.  The documents provided for Mr Saddique were illegible, and were not otherwise adequate to establish a statutory excuse.  As to Mr Hussain, there was no record of the date on which the checks of his current Pakistani passport and spouse/partner visa had been made.
20.	On 2 March 2015 Mr Sohail Mohammed, from Kingstons, sent the Civil Penalty Compliance Team an email containing a better copy of the visa for Mr Saddique.  The email also attached a witness statement from Mr Akbar which provided dates on which the documents were supposedly checked.
21.	The Civil Penalty Compliance Team responded by letter on 4 March 2015 stating that Mr Akbar had failed to keep a record of the dates the documents for the two persons were checked.
The County Court appeal
22.	Mr Akbar appealed to the County Court at Oldham in early March 2015 on the prescribed form for statutory appeals, an N161.  It was lodged by Kingstons.  It named the respondent as the Secretary of State, with an address “Civil Penalty Compliance Team, PO Box 99, Manchester”.  The form identified the Treasury Solicitor’s Department, now the Government Legal Department (“the GLD”), as the solicitors representing the Secretary of State.
23.	The detailed grounds of appeal lodged with the appeal notice advanced three arguments first, that Mr Hussain and Mr Saddique were both lawfully resident in the UK and allowed to work (copies of their passports were attached); secondly, that the Secretary of State had accepted that Mr Akbar had conducted document checks with the only issue being when this occurred; and thirdly, that the amount of the penalty was disproportionate.
24.	On 19 March 2015, District Judge Fox gave case management directions for the appeal.  His order provided amongst other things that the Secretary of State should serve her evidence exhibiting any documents relied on it by 4pm on 6 May 2015; she should file the agreed bundle no later than five days before the hearing; the hearing would be fixed for an hour on a day after 3 June 2015; and the hearing would “normally” proceed by way of written evidence but if a party intended to cross-examine a witness, notice had to be given to the other side no later than 20 May 2015.
25.	On 12 May 2015, Kingstons applied to the court for an unless order, that unless the Secretary of State filed and served her evidence by 20 May 2015 the appeal should be allowed with costs.  The application notice stated that this was because the Secretary of State had failed to comply with District Judge Fox’s order.  The application was accompanied by a letter dated 7 May 2015, addressed to the GLD, which put the Secretary of State on notice of the intention to file the application.  That letter was signed by Mr Mohammed of Kingstons.  It omitted the GLD’s reference number and was not received at its office.
26.	In response to the application, on 18 May 2015 District Judge Osborne ordered the Secretary of State to file the evidence on which she intended to rely by 28 May 2015.  The order was served on the Civil Penalty Compliance Team at the post box in Manchester on 21 May 2015.
27.	The order was referred to an executive officer with the GLD, who the same day contacted both Mr Mohammed of Kingstons and the court to remind them that the GLD were on record as acting on behalf of the Secretary of State and the GLD, not the Civil Penalty Compliance Team, should have been served.  The email to Mr Mohammed requested that all documentation which should have been served be sent before midday on 22 May 2015.  It added that an attempt would be made to meet the deadline in the court’s order but, in the event that this was not possible, an application would be made for an extension of time on the basis that the claim, as well as the subsequent documentation, had not been served correctly.
28.	The Secretary of State’s evidence was two days late and received by the court and Kingstons on 29 May 2015.  It was a statement of Patricia Sharples, an executive officer of the Civil Penalty Compliance Unit dated 27 May 2015.  There were 23 exhibits attached to the statement.  The statement set out the legal framework, the factual background and the Secretary of State’s evidence, including the witness statements of the enforcement officers and copies of their notes made after their visit to International Chippy.
29.	On 5 June 2015 a member of the GLD filed and served the Secretary of State’s skeleton argument.  On 8 June 2015, Mr Mohammed served his updated skeleton argument.  The same day the GLD wrote to Kingstons and the court requesting the attendance of Mr Akbar at the hearing for cross-examination.
30.	A hearing took place before District Judge Fox on 9 June 2015.  Apparently he had insufficient time – an hour – to hear the matter.  His order dated 15 June 2015 stated that the Secretary of State could rely on the evidence of Ms Sharples, that the hearing would take place on 13 July 2015 (with an estimated  length of three hours), that Mr Akbar should attend for cross-examination, and that the parties should file and serve any further evidence by 7 July.
31.	On 22 June 2015, Kingstons contacted the GLD to seek a further adjournment of the case because both Mr Mohammed and Mr Akbar would be fasting for the month of Ramadan.  Further, the email said, the final date for the filing of witness evidence of 7 July 2015 would allow only 4 days for its review before the day of the hearing.
32.	On 24 June 2015, the GLD agreed to the adjournment.  As a result by order of 7 July 2015 the court adjourned the hearing of 13 July 2015, with the case to be relisted having regard to the parties’ availability.  On 20 July 2015, the case was listed for a hearing on 21 September 2015.
33.	Meanwhile, on 23 June 2015 Kingstons sent the GLD a copy of a second witness statement of Mr Akbar in which he said that he had never seen the Information Request form previously and it had been submitted by Mazzafar Ali, his nephew.  Mr Ali’s witness statement was enclosed and it said that when Mr Akbar was away in London at a family funeral he had completed the Information Request so as not to bother him.  He did not have access to the records and had undertaken the task by guess work.  Having received the Secretary of State’s evidence he could see that he had completed the form with incorrect dates.
34.	On 25 June 2015 the GLD filed a second witness statement of Ms Sharples with the County Court.  It was served on Kingstons the following day, together with a request that Mr Ali attend the hearing for cross-examination. Ms Sharples’ second witness statement was in response to Mr Akbar’s further evidence and submissions.  It pointed out that Mr Akbar had provided three different dates on which the checks had been conducted, and different dates on which Mr Hussain and Mr Saddique were said to have commenced work.  Only late in the day had Mr Akbar produced the “International Chippy – Right to work check form”.  In effect the Secretary of State’s case was that Mr Akbar was manufacturing evidence well after the event to avoid liability.
35.	There is a file copy of a letter from Kingstons dated 26 June 2015 from Mr Mohammed to the GLD, giving notice that Ms Sharples would be required for cross-examination. The letter is addressed to the relevant executive officer in the GLD at its address in London, but without “Treasury Solicitor” or “Government Legal Department” in the address.  One of the reference numbers in the letter is incorrect, with one too many zeros.  A witness statement dated 30 November 2016 from an employee of Kingstons, assisting Mr Mohammed, is to the effect that she drafted and posted the letter to the GLD.
36.	On 16 September 2015, the GLD emailed Kingstons and invited them to agree the index to the appeal bundle.  No response was received so the GLD finalised the bundle and send it to the County Court at Oldham by mail and document exchange.  It was never received.
Appeal hearing at the County Court
37.	On 21 September 2015, the hearing took place in the County Court at Oldham before District Judge Fox.  There is no explanation before us as to why the appeal was not listed before a circuit judge.
38.	At the hearing Mr Mohammed raised two issues in his opening remarks, the absence of bundles and that, despite his request that Ms Sharples attend for cross-examination, she was not there. In his submission there was no evidence that Mr Hussain and Mr Saddique were, in fact, unable to take employment.  Mr Mohammed added:
“I would just highlight also that you have had conduct of this matter pretty much throughout and you will be aware that the same issue happened with regard to the appeal, the N161, they are saying they never received that either, and that is something that the court sent to them. There seems to be a bit of a theme going on of them not receiving things from the solicitor’s firm or from the court itself. It is extremely unsatisfactory.”
39.	The judge then said that he had only Mr Akbar’s, not Mr Ali’s, statement.  Mr Mohammed asserted that Mr Ali’s statement had been lodged with the court. The judge replied emphatically that the court had not received it.
40.	The judge turned to the issue of Ms Sharples.  Why was no request made for her to attend for cross-examination?  Why was it not raised before him on the previous occasion?  Mr Mohammed replied that he had sent a request to the GLD that she was needed for cross-examination.  It had been in relation to her second witness statement.  The judge said that Ms Sharples’s second witness statement was not on file either.  He did not have all the documentation needed even if Mr Mohammed were able to open Mr Akbar’s case.
41.	For the Secretary of State, Mr Chegwidden explained that the first time he had seen a letter requesting Ms Sharples’s attendance was that morning.  He had taken instructions and no request for her to attend was on file with the GLD, so his instructions were that no request had been received.  He was not in any position to deny that Mr Mohammed’s solicitors had sent the letter, but it had not been received and in no subsequent correspondence with the GLD was it mentioned.  As far as Ms Sharples was concerned, it would only be in relation to her second witness statement that she could be needed since, as at 9 June, when both he and Mr Mohammed were in front of the judge, the only person they had agreed was needed for cross-examination was Mr Akbar.
42.	Some discussion ensued about the issues in the case, whether Mr Akbar had satisfied himself that the two workers could work in the UK by checking the documents.  Mr Chegwidden said that Mr Saddique’s visa had expired in 2012 and he had been removed from the UK, and that Mr Hussain's spouse entry clearance visa did not permit employment.
43.	Mr Mohammed submitted that the case should be able to proceed and it was unfair on Mr Akbar.  It was the second time he had appeared for a hearing and another adjournment was in prospect.  The Secretary of State had been out of time with her evidence previously and had not filed the bundles for the current hearing.  Enough was enough.  The Secretary of State had been indulged on the previous occasion with the late service of her evidence.  The bundles were not available.  It was completely unfair to Mr Akbar.  Was the case to be adjourned a third time because the Secretary of State could not get her house in order?
44.	Mr Chegwidden replied that he had all the documents electronically on his laptop, they could be printed out within half an hour, and the case did not need to be adjourned.
45.	The judge disagreed.  There were two witnesses to be cross-examined, representations had to be made, and judgment given.  That could not be achieved in the remaining time.
46.	There was some discussion about the late service of the Secretary of State’s evidence and whether that was because material had been served on the Civil Penalty Compliance Team rather than the GLD.  Mr Mohammed said that there was a theme of the GLD not receiving anything, both from Mr Akbar’s side and the court.  On 9 June they had examined the N161 and it referred to the GLD.  His side had served on the GLD and the court.  The judge said that he recalled the discussion, since he had a note on the file: “Ensure that the [GLD] is on record”.
47.	Rather abruptly the judge dismissed the appeal at this point, saying:
“So they did not serve their evidence. They say that they did not have the evidence from the applicant. They have not filed the trial bundle. They have not supplied the witness who was requested to attend. So I am afraid that is it. This is the second time. The appeal is allowed.”
48.	Mr Chegwidden requested permission to appeal.  The correct decision was to adjourn, with the Secretary of State paying the costs of the day, or to require an explanation within seven days.  The appeal related to a very serious matter in which a fine of £20,000 had been imposed for someone who admitted, on the day, that he was an illegal worker.  The application was for permission to appeal on the basis that it had been disproportionate for the judge essentially to strike out the Secretary of State’s response to the appeal.
49.	The judge refused permission to appeal:
“Effectively, it is an application for relief from sanction. There is no explanation as to why the witness is not here. There has been a catalogue of failure on the part of the respondent in this case. To simply say on, now, the second occasion before me, “Well there is no record of documentation being received,” really is not good enough.”
50.	The order following the hearing dated 25 September recorded that the appeal was allowed with costs, with no reference to relief from sanctions or the striking out the Secretary of State’s case.
The present appeal
51.	The Secretary of State’s contention is that the decision of the district judge was wrong, not being based on evidence as to why the bundles and Ms Sharples were not at court.  Further, there was nothing before the judge as to the Secretary of State’s culpability for their absence.  Yet the judge blamed her for the situation, as well as for Ms Sharples’s further witness evidence not been before him, when he did not have Mr Ali’s statement either.  His allowing the appeal, as well as awarding costs to Mr Akbar, was manifestly inappropriate and unjust without considering the evidence and submissions by the Secretary of State’s counsel as to what might be done.
52.	In seeking to resist the Secretary of State’s appeal, Mr Mohammed submitted that she needed to demonstrate that she did not breach any of the court orders mentioned by the district judge in his short judgment.  In fact there were what he described as “multiple breaches of court orders”, which enabled the judge to strike out the Secretary of State’s grounds of resistance under his case management powers in CPR 3.4.  Once that occurred there was no evidence for the judge to uphold the penalty notice and his allowing of the appeal was inevitable.
53.	Mr Mohammed enumerated what he characterised as the Secretary of State’s multiple breaches of court orders as follows:
i)	The Secretary of State breached the case management order of District Judge Fox by failing to file and serve evidence relied upon by 6 May 2015.  This resulted in an application for an “unless” order as a result of which an order was made requiring her to file her evidence by 28 May 2015.
ii)	The Secretary of State failed to file her evidence as required by 28 May 2015.  This resulted in an application to strike out her statement of case and that the appeal be allowed on 9 June 2015.  “With significant latitude”, as Mr Mohammed described it, the court decided against striking out the Secretary of State’s case.
iii)	The Secretary of State failed to file and serve an agreed appeal bundle five working days before the second appeal hearing on 9 July 2015.
iv)	The Secretary of State failed to file and serve her evidence in the appeal by 7 July 2015.
v)	The Secretary of State failed to file and serve an agreed appeal bundle five working days before the second appeal hearing on 21 September 2015.
vi)	The Secretary of State failed to produce Ms Sharples for cross-examination at the appeal hearing on 21 September 2015 as requested some three months earlier.
54.	In my view these submissions are marred by the same exaggeration as is evident in the transcript of what Mr Mohammed told the district judge.  As to what are said to be breaches (i) to (iii), as Lady Justice Arden pointed out in argument these were “done and dusted” by the judge’s order following the 9 June hearing.  In any event I hardly regard them as egregious breaches.  There was an explanation as to why the Secretary of State had failed to file and serve her evidence by 20 May 2015.  The papers had been served on the Civil Penalty Compliance Team, not the GLD.  The judge’s note on the file from the 9 June hearing seemed to acknowledge an error in serving the GLD. When having discovered that material had been misdirected, the Secretary of State nonetheless filed Ms Sharples’s evidence only two days late.
55.	As to what Mr Mohammed contended was the Secretary of State’s failure to file Ms Sharples’s second witness statement by 7 July, the date set out in the judge’s order of 15 June for the filing and service of any further evidence, there is no doubt that the court did not have that statement on file.  But neither did it have Mr Ali’s statement, which was also caught by that order.  Yet in line with Mr Mohammed’s submissions only the Secretary of State was blamed in the judge’s reasons for allowing the appeal and in his remarks refusing permission to appeal.  While not on the court file, Ms Sharples’s second witness statement was clearly available and with Kingstons well before the 7 July date: it had led, after all, to the request made in the letter dated 26 June 2015 for her attendance for cross-examination.
56.	Thus Mr Mohammed’s “multiple breaches”, which so beguiled the judge and in his words became “a catalogue of failure”, reduced to the absence of the bundles on the day and Ms Sharples’s non-attendance at the hearing.  As to the bundles, the judge had no evidence as to why they were not available.  Fault may have lay with the Secretary of State, but equally it may have been with the post or the court registry.  Without inquiry, the judge adopted Mr Mohammed’s characterisation of the situation that it was because the bundles had never been filed.  There was no evidence for that factual conclusion and as a matter of law it was wrong.
57.	Similarly, the judge reached the conclusion, again without evidence, that Ms Sharples’s absence was attributable to a lapse on the part of the Secretary of State.  Yet this was against a background where his order of 19 March had stated that the hearing would normally be expected to proceed by written evidence, and his order of 15 June which required Mr Akbar to attend for cross-examination but not Ms Sharples.  All the judge had directly on the issue of Ms Sharples’s absence was Mr Chegwidden’s instructions that Kingstons’ (inadequately addressed) letter of the 25 June had never been received by the GLD, and that the request for Ms Sharples to attend was never mentioned in subsequent correspondence with the GLD.
58.	 Although the judge did not strike out the Secretary of State’s grounds of resistance, he proceeded as if he had and that the appeal was undefended.  What he could have done was to consider the evidence which was available.  His duty was to conduct a rehearing.  Ms Sharples’s first witness statement was unchallenged.  Mr Akbar and Mr Ali were there to be cross-examined.  The burden was on Mr Akbar to bring himself within one of the grounds of appeal in section 17(1) of the 2006 Act.  Specifically, under section 15(3) he had to show that he had conducted the immigration checks on Mr Hussain and Mr Saddique at the relevant times.
59.	Thus there was evidence which the judge could have considered before allowing Mr Akbar’s appeal.  It is clear that he had done pre-reading of the witness evidence which was available.  Without referring to any of that evidence, however, or considering the parties’ submissions, the judge allowed the appeal for procedural failures which he attributed to the Secretary of State.  That did not provide an adequate base for this course of action. If time was not adequate to proceed with the evidence which was available, the judge could have considered adjourning the hearing with the Secretary of State bearing the costs.
Conclusion
60.	I would allow the appeal and award the Secretary of State her costs. The matter is to be remitted to the County Court. The re-hearing of Mr Akbar’s appeal should be conducted by a circuit judge.
Lord Justice McFarlane:
61.	I agree.
Lady Justice Arden:
62.	I also agree.