HHJ Marquand, sitting at the Wandsworth County Court, dismissed an appeal against a Civil Penalty Notice, in the total amount of £90,000 issued to a sole trader following an unannounced immigration visit to the business premises, a garage in South London. As a first breach, the maximum penalty was £45,000 per worker. Two men were found working at the garage when the Home Office visited.
On appeal, the employer claimed that one of the men was his brother and that he was not working but simply visiting. The employer admitted that the second man was working but claimed that he was there working for another business operating from the same garage.
Tony Muman was instructed for the Secretary of State to defend the appeal.
Following trial, HHJ Marquand rejected the employer’s claim and found that the two men were employed under a contract of service and endorsed the civil penalty. He also ordered the employer to pay the Secretary of State’s costs.
Invalid appeal?
The legislative scheme works in the following way:
A Civil Penalty Notice is issued under s. 15(2) of the Immigration, Asylum and Nationality Act 2006. It must be in prescribed form: s. 15(6).
Section 16 applies where an employer to whom a penalty notice is given objects on grounds including that he is not liable to the imposition of a penalty. This is referred to a notice of objection: s. 16(2). A Civil Penalty is usually accompanied by a proforma form for an objection to be made. The objection does not, however, have to be made using the form but must be given in the prescribed manner: s. 16(3)(c). Provided all the information that is required to be given, is given; an employer can object by simply writing to the Home Office. It is sensible to ensure that the objection is signed (‘I confirm that the above information is correct to the best of my knowledge’).
Under s. 17(1), an employer to whom a penalty notice is given may appeal to the County Court. It is important to remember that the decision giving rise to the appeal is the penalty notice, and not the objection outcome notice. The latter is unappealable; the former is appealable.
An appeal is commenced by completing an Appellant’s Notice (Form N161), which must identify the correct date of the decision being appealed.
The appeal is a rehearing of the Secretary of State’s decision to impose a civil penalty. It is not a rehearing of the objection outcome notice.
The Secretary of State is then required to determine the objection: s. 16(4). She can cancel the penalty, reduce the penalty, increase the penalty, or decide to take no action (i.e., to maintain the penalty).
Under s. 17(4A), an appeal against the penalty notice may only be brought if the employer has given a notice of objection under section 16 and the Secretary of State has determined the objection.
Under s. 17(4B), an appeal must be brought within the period of 28 days beginning with the relevant date. The relevant date is the date specified in the objection outcome notice issued in accordance with s. 16(5)(b) as the date on which it was given: s. 17(4D). This date is important. It is a statutory time limit and one that Parliament has decided cannot be extended.
In this case, the employer filed the N161 within the 28-day limitation period, and it was issued by the court.
Under section 2 of the N161, the date of the decision appealed was said to be 5 March 2025. This was, in fact, the date of the objection outcome notice. There is no statutory right to appeal the objection outcome notice. Parliament has crafted a scheme allowing for the appeal against the penalty notice only: s.17(1).
This omission, which may have been fatal, was perhaps saved by section 5 of the N161, which confirmed that the appeal was against the civil penalty notice.
Section 6 of the N161 confirmed that the grounds of appeal were attached. Section 7 of N161, which relates to skeleton arguments, was left blank.
Section 9 of the N161, dealing with the order sought from the County Court, was completed.
Section 10 of the N161 deals with ‘other applications’.
Section 11 of the N161 is for reasons and evidence in support of any section 10 application. Both sections are mutual. In this appeal, because there was no application sought, sections 10 and 11 were left blank.
The form then proceeds to require a signature underneath a Statement of Truth. In express terms, the Statement of Truth must be completed in support of the evidence in section 11. Absent a section 10 application, the need for a section 11 Statement of Truth is redundant.
In this appeal, despite not making a section 10 application, the employer signed and dated the Statement of Truth.
Section 14 of the N161 is the operative part for an appellant’s signature. By signing the form at section 14, an appellant confirms that the form is complete and is no longer a draft. It is an important final procedural step in any appeal. The failure to sign the form is a serious omission.
In this appeal, section 14 was not signed. What appears to have happened is that the employer signed the Statement of Truth in the mistaken belief that this was the signature required by the form.
In Nathadwarawala v General Medical Council [2025] EWHC 459 (Admin), the GMC raised a jurisdictional objection to an appeal on grounds that the appeal had not been brought within the statutory 28-day period for appealing to the High Court. Whilst the N161 had been submitted and the fee paid a few days before the 28-day period expired, it was not signed, and the signature box was blank. The appellant sought to correct his mistake reasonably promptly after the error was pointed out to him by the court’s administrative staff, but by then the 28-day appeal period had already elapsed. The GMC argued that the court did not have the power to extend the time for bringing the appeal.
The High Court decided that (1) the appellant’s submission to the Administrative Court Office of an unsigned N161 did not suffice to constitute the bringing of an appeal within the 28-day period; (2) the absence of a signature was a serious omission, and (3) in the circumstances, the court had no power either to treat the appeal as having been brought within time or to extend time. As such, the court lacked jurisdiction to entertain the late-filed appeal, which fell to be dismissed regardless of its substantive merits.
In General Medical Council v Konathala [2025] EWHC 1550 (Admin), the N161 was filed on behalf of the GMC with sections 1 to 13 fully completed, including a signed and dated Statement of Truth prior to the expiry of the 28-day appeal period. The GMC had failed to sign the signature box at Section 14 of the N161 and made no attempts to correct this failure at any stage. Despite the lack of signature, the GMC’s N161 was sealed by the court office within the 28days. Following this, a hearing date was fixed, and hearing bundles and skeleton arguments were filed by both parties. During these procedural stages of the appeal, neither the court nor the parties raised the fact that section 14 of the N161 had not been signed.
Having realised the error, the respondent argued that, in line with Nathadwarawala, the lack of a signature meant that the GMC’s appeal was invalid and that the court had no jurisdiction to hear the appeal.
The GMC submitted that the factual position was vastly different to that in Nathadwarawala. The N161 was signed by the GMC solicitor, albeit at the statement of truth section, whereas in Nathadwarawala, there was no signature anywhere on the form. Therefore, the statement of truth signature was sufficient to indicate that the N161 was complete, as demonstrated by the fact that the court office issued the appeal.
The High Court held that because the court office had issued the GMC’s N161, the appeal proceedings had begun in accordance with CPR.r.7.2, and as such the court could, on application, exercise its discretion under CPR.r.3.10 to remedy the GMC’s omission to sign the box in section 14 of the form.
There appears to be some tension between the two decisions. In the end, given his findings on the substantive issue, the Secretary of State did not press HHJ Marquand to rule on validity as a preliminary issue and the point remains live for another case.
Tony Muman is an expert in civil penalty cases. For any booking enquiries, please contact the civil clerk at civil@halcyonchambers.com
The views stated in this article belong to the writer and no warranty is given, express or implied, in respect of the accuracy of the contents of this article. Nothing in this article is tendered as or is intended to be legal advice and the contents should not be construed or relied upon as legal advice. Specialist legal advice should always be taken in every case, noting that the application of the law may vary according to the individual facts of the case and the nature of the dispute.
