Jen and Jamie Limited v Secretary of State for the Home Department [2025] EWCC 41

[2025] EWCC 41Case No L00MB724
IN THE COUNTY COURT AT MIDDLESBROUGH
Date 14 July 2025
Teesside Combined Court Centre
Centre Square
Middlesbrough
TS1 2AE
IN THE MATTER OF AN APPEAL AGAINST THE IMPOSITION OF A CIVIL PENALTY NOTICE UNDER SECTION 15 OF THE IMMIGRATION, ASYLUM AND NATIONALITY ACT 2006 (AS AMENDED)
Before
His Honour Judge Robinson BEM
Between
JEN & JAMIE LIMITEDAppellantSECRETARY OF STATERespondentFOR THE HOME DEPARTMENTRespondent
Ms Efurhievwe, Counsel, instructed by Stachiw Bashir Green Solicitors for AppellantMr. Connolly, Counsel, instruct by the Government Legal Department for RespondentHearing Hearing dates: 1 and 2 July 2025
JUDGMENTThis judgment was handed down at a remote hearing on 14 July 2025.
[1]This judgment concerns a statutory appeal in respect of a civil penalty notice (“CPN”) issued by the Respondent against the Appellant pursuant to section 15 of the Immigration, Asylum and Nationality Act 2006 (hereafter referred to as “the Act”). The said appeal proceeds pursuant to section 17 of the Act.[2]There appear to be few reported first appeals concerning sections 15 and 17 of the Act, as was referenced in submissions to me, and I have therefore provided this as a written judgment to improve open justice and transparency. B. BACKGROUND[3]The Appellant is a registered limited company with a trading name of “Somerset Convenience Store” and which is also known as “Premier Somerset Convenience Stores”, such names evidently arising from its location on Somerset Road in Stockton on Tees.[4]On 11 July 2024 the Respondent’s officers visited the Appellant’s premises on Somerset Road (which I will simply refer to it as “the Store”), and thereafter issued an information request to the Appellant dated 24 July 2024 in relation to a suspected breach of section 15 of the Act, namely by allegedly employing illegally a person (and in this case 2 persons) subject to immigration control (and I will set the specifics of section 15 of the Act below).[5]The information requested included whether the Appellant had employed Pattiyage Kaveesha Koumini Gomes and Panditha Mudiyanselage Chalani Nethmini Senevirathna. A response to the request was sought by 2 August 2024. A response was sent on the Appellant’s behalf, albeit there is some confusion in that the documents are dated in August 2024 but were in fact received by the Respondent in July 2024 (and there is no dispute in relation to this). The response to the information request was completed on behalf of the Appellant by Shamika Ayupala in her capacity as a manager at the Store. There was also an unsigned letter from Jeneesan Arockyanathan, the Appellant’s Managing Director, granting permission for Ms Ayupala to sign documents on his behalf.[6]On 9 August 2024 the Respondent then issued the Appellant with a CPN pursuant to section 15 of the Act. The said CPN provided a breakdown stating that there were 2 individuals for which there was an alleged breach of work restrictions (Ms Gomes and Ms Senevirathna as set out within the information request), and a penalty value of £40,000 per individual was issued. The CPN detailed that if the penalty was paid within 21 days a 30% reduction would be applied, thus reducing the total penalty to £56,000.[7]The Appellant completed an objection form dated 29 August 2024 which asserted that the Appellant was not liable to pay the penalty.[8]In addition to the objection form and response to the information request, a letter by the Appellant to the Respondent dated the same date provided further information. These documents were emailed to the Respondent by the Appellant’s solicitor on 3 September 2024.[9]The response to the information request said: “[Ms Gomes and Ms Senevirathna] visited our shop on 5th of July at 4.30pm not as employees but as volunteers … their my friends niece and her friend” [sic].[10]The said letter of 29 August 2024 provided further information: “[Ms Gomes and Ms Senevirathna] visited our shop on 5th of July at 4.30pm not as employees (At that time my Manager at work) but as volunteers. They were looking for constructive ways to spend their time, as they found it challenging to stay inactive at home. I knew their uncle [redacted] personally and ask from me his niece and her friend bored at home is it okay to send to my shop to get experience and learn more English accent when they talking with customers. We wanted to help them by providing a non-work-related environment where they cold observe and gain a basic understanding of retail operations. To clarify, the activities performed by [Ms Gomes and Ms Senevirathna] were entirely voluntary, unpaid and no given any food. They mainly observed daily operations, such as customer interactions and stock arrangements. Any assistance provided was purely supportive, such as organizing shelves or light administrative tasks, and was part of voluntary experience rather than formal work. No financial compensation or material benefits, such as food or transportation, were provided to them an opportunity to be engaged in a constructive way, rather than have them perform any skilled work”.[11]In written representations dated 2 September 2024 which accompanied the objection form, the Appellant submitted that Ms Gomes and Ms Senevirathna were not directly employed by the Appellant and that their volunteering did not amount to voluntary work defined by the Act. It was also noted in such written representations that the Respondent’s officers did not interview Ms Gomes and Ms Senevirathna in their native languages.[12]The Respondent issued an objection outcome notice on 9 September 2024 in which the penalty was maintained, but with the previous 21 day period to pay the discounted sum extended (i.e. a period of 21 days from the date of the objection outcome notice as opposed from the original CPN).[13]The Appellant then duly filed an Appellant’s Notice dated 8 October 2024 to which a skeleton argument was attached setting out the grounds of the appeal, namely that:a. Ms Gomes and Ms Senevirathna have not, at any time, been employed by the Appellant, andb. The Respondent has failed to produce sufficient evidence to support the assertion that Ms Gomes and Ms Senevirathna have been engaged by the Appellant under a contract of employment.[14]The case came before me on 5 December 2024 where I provided directions to progress this matter to this final statutory appeal hearing.[15]By a skeleton argument dated 14 February 2025, the grounds of the appeal crystalised and were detailed as follows:a. The Respondent has failed to prove that Ms Gomes and Ms Senevirathna had been employed by the Appellant (Ground 1).b. The Appellant is not liable for the CPN, as neither Ms Gomes nor Ms Senevirathna had been employed by the Appellant (Ground 2).c. The penalty is too high and should be reduced (Ground 3).[16]The Appellant also sought oral evidence of 4 witnesses by email dated 28 March 2025, and I granted permission of oral evidence of them by Order dated 2 April 2025.[17]Following an application by the Respondent, District Judge Cook then granted permission for the Respondent’s witness, Ms Langley, to provide her evidence remotely by Order dated 11 April 2025.[18]On 15 April 2025, the Respondent made an application for relief from sanctions to be able to rely upon documentation which it had discovered of an interview which the Appellant’s director had undertaken with Stockton on Tees Borough Council in September 2024. I delivered an extempore judgment at the outset of what should have been the hearing of this appeal on 16 April 2025, and I granted permission for the same. On application by the Appellant, I granted permission for Arockyanathan Jeneesan to be assisted by way of an interpreter, and I provided further directions in relation to translation of his witness evidence. At that hearing I also determined the issue as to the burden of proof, finding that the burden rests upon the Appellant. Whilst I provided an ex tempore judgment in relation to that on 16 April 2025, I will address the position briefly below for completeness of this judgment.[19]In view of the direction for a translator and Mr. Jeneesan’s evidence having not been taken in his own language and duly translated, I adjourned the hearing until 29 April 2025 to enable that particular issue to be remedied. Due to some very sad and unexpected personal circumstances of one of the Respondent’s witnesses and subsequent unavailability for the hearing on 29 April 2025, I adjourned the hearing further by Order dated 29 April 2025 and listed the matter to be heard on 1 July 2025.[20]Following applications made by the Appellant and Respondent, and following a further Order which I made when I reviewed the proceedings administratively on 13 June 2025, the matter came before me on 25 June 2025 when I granted the Appellant relief from sanctions in relation to the late filing of witness evidence, and I granted the Respondent permission to rely upon witness evidence of Mr Beevers from Stockton on Tees Borough Council. At that hearing I also extended the time estimate of the hearing.[21]The above provides an overview of how the case has come before me for this statutory appeal. I will proceed to summarise the evidence which I have heard, and thereafter in my analysis below I will also summarise the documentary evidence before me. I do issue a caveat that the purpose of this judgment is not to provide a verbatim account of evidence, and simply because I have not referenced a particular piece of oral evidence or documentary evidence, or indeed a particular submission, it does not mean I have not taken it into account. For the assurance of the parties, I have carefully considered everything that has been placed before the court. C. WITNESS EVIDENCE Arockyanathan Jeneesan[22]The first oral evidence which I heard was from Arockyanathan Jeneesan, the sole director of the Appellant.[23]Mr Jeneesan relies upon 2 statements which are dated 18 June 2025. Within his first statement Mr Jeneesan states he is the owner of Somerset Convenience Store on Somerset Road in Stockton on Tees. He says he has a friend and fellow retailer, Samudra, who owns a smaller convenience store in Hartlepool. Mr Jeneesan said that Samudra had told him at the end of June 2024 that he had 2 of his nieces staying with him from Sri Lanka (Ms Gomes and Ms Senevirathna) who had “been working in the care sector down South but both had been made redundant”. He said he had been told by Samudra that they had work permits. He said he had agreed to “try them out on a voluntary basis for a few days to give them some experience of working in the retail industry”.[24]Mr Jeneesan set out in his first statement that had Ms Gomes and Ms Senevirathna been coming to him to work he would have checked their ID and work permits. He said that Ms Gomes looked “quite young” and so he did check both IDs “to make sure that they would be old enough to be involved in the sale of alcohol”.[25]His first witness statement further set out that: “From Friday 5 July 2024 onwards they both did some shifts, which lasted about 4 hours each, at the store over several days for which they were not paid nor indeed provided with any food and nor was any promise made by me for employment to them. This continued until the following Thursday, 11 July 2024, when the store was raided by Officials from The Home Office”.[26]Mr Jeneesan further said that Ms Gomes and Ms Senevirathna “could come and go, as they wished”.[27]Within his second statement, Mr Jeneesan clarified matters in respect of his interview with Stockton on Tees Borough Council.[28]In his oral evidence he said that he is not fluent in English, notwithstanding having referred to himself as being fluent in his first witness statement, albeit within his second witness statement he wrote that he considers himself “as being a good English speaker, sometimes especially in stressful situations as being interviewed by the council I do not express myself in the best possible way”.[29]In his oral evidence he referenced that during his interview with Stockton on Tees Borough Council he was shouted at by Mr Beevers, and Mr Jeneesan said he was shaking in response to this. When being taken to the transcript of that interview and it being put to him that there was no mention of his friend, Samudra, he said he was just “blank” during the interview and did not say anything about his friend.[30]He said he had asked for an interpreter on the telephone when speaking with Mr Beevers, and that Mr Beevers said he would try and find one but that a couple of days later Mr Beevers told him he had been unable to find one and asked him if he could manage, and Mr Jeneesan said he would try his best and then proceeded to the interview in September 2024. When clarifying further, Mr Jeneesan said he cannot recall whether that was before the interview in September 2024 but that he did ask for an interpreter in advance of the licensing hearing in December 2024.[31]He was asked if he accepted to giving a different version of events to Mr Beevers, notably that Ms Senevirathna and Ms Gomes were just friends of his partner. He did not accept that, and his response was that he was not asked during the interview who had introduced him to Ms Senevirathna and Ms Gomes.[32]He said that Samudra brought Ms Senevirathna and Ms Gomes to the Store in the car, and Mr Jeneesan brought them into the store from outside. He said that he spoke to them in English, albeit only a few words, but that they could both read, speak and understand English. He said he had no other conversations with Ms Senevirathna and Ms Gomes.[33]Mr Jeneesan said that Ms Senevirathna and Ms Gomes were just volunteering. He said that he did not need them to run the Store.[34]When being asked about when Ms Senevirathna and Ms Gomes attended the Store, and how often and how long for, Mr Jeneesan said he could not remember but that they did not have set times, but he referenced to them coming “late”. When clarifying this, as to how they could be late if they had no set times, he said that sometimes they would be “late” in terms of working later in the day, and sometimes they would work earlier in the day. Gamage Donna Florencia Shamika Ayupala[35]I next heard oral evidence from Ms Ayupala, and she relies upon statements dated 20 February 2025 and 25 April 2025, and within her statements she sets out that she is the manager of the Store.[36]Within her first witness statement she said: “On Friday 5 July 2024, Jeneesan introduced me to two young women who he had brought to the store. He told me that he had agreed with their uncle Samudra to provide them with voluntary work at the store so that they could gain some experience in working in the retail industry”.[37]She described Ms Senevirathna and Ms Gomes had “very limited English” and that for the next few days following 5 July 2024, Ms Senevirathna and Ms Gomes came each day for 3 or 4 hours a day.[38]In her second statement she said: “I was introduced to the two girls by Samudra direct. Samudra is a family friend of mine”.[39]Ms Ayupala clarified further in that second statement that she is not Mr Jeneesan’s partner in any way, and that Mr Jeneesan reference to her as a partner is presumed to mean “work colleague”.[40]In her oral evidence she said Samudra brought Ms Senevirathna and Ms Gomes to the store. She said she “forgot” to originally mention that Samudra was her friend. She said the first time she met Ms Senevirathna and Ms Gomes was the day on which they were brought to the store. She confirmed that from 5 July 2024, Ms Senevirathna and Ms Gomes came to the store each day. She said that Samudra brought them to the store and collected them from the store every day.[41]Ms Ayupala said that customers had asked “how old is she?” in respect of Ms Gomes, as she was quite short. She said Ms Senevirathna and Ms Gomes were selling alcohol to customers in the Store, and so after 2 days she asked them to bring their ID card so she could check their ages and have that documentation to show the Home Office if required.[42]Ms Ayupala said that it was her best guess that Ms Senevirathna and Ms Gomes were in the Store between 3 to 4 hours on each occasion, but she could not recall specific details.[43]She said Ms Senevirathna and Ms Gomes could understand English well, but not in respect of long conversations.[44]She said that in September 2024, Mr Beevers had asked her if she was the interpreter when she accompanied Mr Jeneesan to an interview with Stockton on Tees Borough Council. Steven Martin[45]Mr Martin provided evidence next on behalf of the Respondent, and he relies upon a statement dated 2 February 2025. He is the Chief Immigration Officer of the North East Yorkshire and Humber Immigration Compliance and Enforcement.[46]In the said witness statement Mr Martin sets out that he took part in an enforcement visit at the Store on 11 July 2024 and his statement detailed the questions asked of Ms Ayupala. He outlined that following the attendance at the store on 11 July 2024, he then attended the home of Ms Senevirathna and Ms Gomes to undertake a search. Thereafter, he said that he took no further part in the investigation.[47]In his oral evidence, Mr Martin said that when interviewing Ms Ayupala on 11 July 2024 there was a “start/stop” interview, meaning that when serving customers the interview was stopped and then restarted when Ms Ayupala was available again. Mr Martin said he was standing behind the till when doing this. He said that he does not have power to shut the store to conduct the interview unless there was a risk to those present.[48]Mr Martin accepted he said he has not seen evidence of any payment by the Appellant to Ms Senevirathna and Ms Gomes.[49]Following the interview with Ms Ayupala, he said that he showed her his electronic notebook and she signed it electronically to confirm that she understood all the questions and that the details recorded were true and correct. He said that there was no rush to the interview, and he referenced that interview starting at 18:21 hours and Ms Ayupala signed it at 18:49 hours (and that 17 questions were asked, some of which were answered in seconds), such timings being logged within the electronic record produced.[50]He explained that Immigration Officer Joanna Henderson was in charge of the investigation and she gathered the evidence which is alleged to demonstrate that Ms Senevirathna and Ms Gomes were employed by the Appellant.[51]Mr Martin said that from his experience there would usually be some form of evidence of employment, whether that is by cash being found or evidence of other payment in kind such as food, accommodation and such like. He said that he and his colleagues had found Ms Senevirathna and Ms Gomes providing a service to the Appellant, and that Ms Ayupala had referenced giving Ms Senevirathna and Ms Gomes drinks when doing so. Elliott Beevers[52]Mr. Beevers is a Licensing Officer with Stockton on Tees Borough Council, and he relies upon a statement dated 21 May 2025. His statement details that he has met Mr Jeneesan on at least 5 occasions, and that during the interview he conducted on 12 September 2024 he had no concerns as to Mr Jeneesan understanding of his questions.[53]In his oral evidence he accepted he is aware that English is not Mr Jeneesan’s first language, but that no interpreter was required when interviewing him on 12 September 2024. He said that he carried out the interview under caution which was compliant with the Police and Criminal Evidence Act 1984 (“PACE”), but that the transcript has been slimmed down and only part of it is before the court today. He said the first part of the interview related to an alleged underage sale following a test purchase which is alleged to have taken place at a different premises. He said he was not aggressive or oppressive in the interview with Mr Jeneesan.[54]He said that Mr Jeneesan had the right to an interpreter for the interview on 12 September 2024. He said that Mr Jeneesan did not inform him that he needed a Tamil interpreter before the interview on 12 September 2024 or before the licence review hearing on 9 December 2024. He said there is no formal guidance provided by Stockton on Tees Borough Council as to when an interpreter should be arranged. He said that when writing out ahead of the interview on 12 September 2024 the letter usually references the right to an interpreter, but he cannot confirm whether the letter did as sometimes “things can get missed off”.[55]He said that Mr Jeneesan had broken English, but that he and Mr Jeneesan could understand each other during the interview on 12 September 2024. He referenced words being missed by Mr Jeneesan and words being in wrong places, but that again he could understand him such that he considered it was fair to proceed with the interview. He accepted there was confusion over the use of the word “partner” during the interview. Jacqui Cooper[56]Miss Cooper provided oral evidence to the court and she relies upon a statement dated 11 February 2025. Miss Cooper is an Immigration Officer.[57]Her statement sets out she was on duty on 11 July 2024 when she attended an enforcement visit at the Store. She detailed observing Ms Senevirathna working behind the counter in the Store, and that in engaging with her she said that Ms Senevirathna “conversed fully in English with me and confirmed she was happy to be spoken to in English. It was also evident from our communication that she had a good understanding of English, therefore an interpreter was not required”.[58]Miss Cooper’s statement set out the questions which she asked of Ms Senevirathna and the answers provided. She said that following the interview (and in fact there were 3 separate interviews undertaken, the initial questions, an ‘illegal working interview’ and a ‘mitigating circumstances interview’), she arrested Ms Senevirathna on suspicion of working in breach of her visa conditions.[59]In her oral evidence she said that she was aware Ms Senevirathna was in the UK on a healthcare visa, which required a prerequisite level of English. Miss Cooper said that she had no concerns at all that Ms Senevirathna did not understand what she was saying. She described Ms Senevirathna being very evasive initially, but that prompting led to further information being received.[60]Miss Cooper said that Ms Senevirathna did not provide any evidence that she was being paid by the Store, for pay or benefit, but that there were control elements present from the manager of the Store towards her. Mark Bryden[61]The next oral evidence which I heard was from Mr Bryden who is an Immigration Officer, and he relies upon a statement dated 10 February 2025. Within that statement he sets out that he attended an enforcement visit at the Store on 11 July 2025. When entering the Store, he states that he saw who he now knows as Ms Gomes stacking shelves towards the rear of the Store, and he set out the questions which he asked. He said that he subsequently arrested Ms Gomes on suspicion of working in breach of her visa conditions.[62]In his oral evidence he said that he interviewed Ms Gomes whilst she was working. He said that he found the quietest place on the Store floor, but the space was tight. He said he is aware of the Home Office Guidance on interviewing, as well as the Home Office policy on enforcement visits.[63]Mr Bryden said that he considered Ms Gomes could speak English fluently. He said that he had introduced himself and that it is a standard question to ask if an interviewee requires an interpreter, and he said he asks it to everyone he interviews. He said that he did not consider Ms Gomes required an interpreter given the fluency of her English. He said it is the first question on his Pronto electronic notebook. He referenced the level of English which Ms Gomes had achieved as set out in her visa application, and that it was “advanced intermediate”.[64]Having interviewed Ms Gomes, Mr Bryden said that there are a couple of words which Ms Gomes corrected when he had read back her answers, and then she signed the form and it was then saved on his said electronic notebook. He said once it is saved there is no means of altering it. He said he did not think it was important to mention this information in his statement.[65]Mr Bryden said that he considered Ms Gomes was being exploited given that her answer she was being expected to work for 7 days without pay. He said that to his knowledge there was no proceedings being brought for modern day slavery. He accepted that there was no evidence of remuneration provided to Ms Gomes save that she expected to receive £5.50 per hour following being trained. He also explained he had asked questions about where Ms Gomes was living and how she got to the Store, because it was part of evidence-gathering about possible remuneration in the form of benefits which may have been received. Amy Langley[66]The final witness to provide oral evidence was Ms Langley, who relies upon a statement dated 21 March 2025. Ms Langley is an Executive Officer working within the Civil Penalty Compliance Team (“CPCT”). Her statement sets out the framework in which CPNs operate, including referencing the Code of Practice on Preventing Illegal Working (February 2024) (“the Code”), which has been updated a various times.[67]Ms Langley’s statement also sets out how the civil penalty has been calculated. She sets out there is a starting point of £45,000.00 per worker. Ms Langley then sets out mitigating factors under the Code, including: “(a) Mitigating Factor 1 – evidence of reporting suspected illegal workers. The CPCT noted that the Appellant had failed to report any suspicions … the Appellant could not benefit from a reduction under Mitigation Factor 1. (b) Mitigating Factor 2 – evidence of “active cooperation” … The CPCT noted that the Appellant had demonstrated that they had actively cooperated with the Home Office and concluded that a reduction of £5,000 (per worker) in the penalty amount was applicable under Mitigating Factor 2. (c) Mitigating Factor 3 – evidence of the effective document practices in place. The Code makes it clear that this factor is only available where both Mitigating Factors 1 and 2 have been satisfied …”.[68]Ms Langley then concludes in respect of the penalty that: “The final penalty was therefore correctly calculated at £80,000 as one of the Mitigating Factors applied to the calculation of the penalty”.[69]In her oral evidence Ms Langley said that she and her team looked at matters of remuneration, but it is not just pay but can be about receiving “something in relation to work”. She described that Ms Senevirathna and Ms Gomes were receiving training and skills, which she said is a benefit, and further that there was the expectation of pay forthcoming at £5.50 per hour.[70]When being asked about whether the primary thought-process for pursuing the CPN was that Ms Senevirathna and Ms Gomes were working in breach of their work restrictions, Ms Langley said she could not comment on a colleague’s thought-processes, but she accepted in having summarised the breach of work restrictions that it would have formed part of the Objection Outcome Notice.[71]Ms Langley said that she was satisfied that there was evidence of control and mutuality of obligations, including being given tasks by Mr Jeneesan and having to turn up for shifts at set times. She said that both Ms Senevirathna and Ms Gomes were considered separately as individuals.[72]She confirmed that the decision as to whether a CPN is issued falls upon her team and is not a decision taken by Immigration Officers. D. CLOSING SUBMISSIONS[73]I heard detailed submissions by Counsel. I do not intend to set out those submissions in verbatim form, but I have carefully considered all that has been said to me along with the helpful skeleton arguments, and I am grateful to Counsel for their assistance.[74]On behalf of the Appellant, it was submitted that Mr Jeneesan’s need to use an interpreter has been demonstrated on the balance of probabilities, such that any criticism of him in respect of his credibility around raising language difficulties should be dismissed. It was submitted that these matters feed into substantive issues in the case, notably Mr Jeneesan attending the interview with Stockton on Tees Borough Council without an interpreter on 12 September 2024. In respect of that interview, it was noted that only part of the interview had been disclosed and furthermore it was an interview conducted under the Police and Criminal Evidence Act 1984 which increased the significance of the interview. As a result of the language issue and inconsistencies caused, it was submitted that the interview record should not be relied upon. It was submitted further that Ms Ayupala provided largely consistent accounts.[75]It was said that assumptions have been made by Immigration Officers, which is based on “zero evidence”. It was submitted that Ms Gomes and Ms Senevirathna were not employed by the Appellant. I was taken to the definition of employment in section 230 of the Employment Rights Act 1996 in this regard, and the evidence before the Respondent at the time the CPN was issued needs careful scrutiny. Other than the referred to assumptions, it was submitted there was no evidence on which to frame the CPN. It was specifically submitted that receiving training is insufficient to meet the definition of employment. It was said that there is consistency in the evidence that there was no employment of Ms Gomes and Ms Senevirathna, and that it was training. At its highest, it was submitted that one of the 2 individuals had an expectation of employment following training. In view of the absence of evidence to support there being any employment of Ms Gomes and Ms Senevirathna, it was submitted the Appellant is not liable for the CPN and that the Appellant has been able to prove on the balance of probabilities that no mutality of obligation existed between the Appellant and either Ms Gomes or Ms Senevirathna.[76]As to matters of the final ground of appeal, that being the level of the penalty, I was referred to the skeleton argument in this regard on behalf of the Appellant, which I will address in my analysis below.[77]On behalf of the Respondent, it was submitted that the burden of proof rests entirely on the Appellant, and the Appellant needs to show that it is not the employer. It was submitted that the Appellant has not met the burden.[78]It was submitted that Ms Gomes and Ms Senevirathna were able to speak and understand English, notably by their own visa applications, as both had been in the UK for over 9 months and had spent time working in a care home, both were able to interact with customers in the Store and that neither individual raised concern when Immigration Officers attended on 11 July 2024.[79]It was further submitted that Mr Jeneesan had lied to this court and/or to Mr Beevers, notably around his knowledge of Ms Gomes and Ms Senevirathna and how he came to be introduced to them. Inconsistency with Ms Ayupala’s evidence was also raised.[80]Regularity of shift patterns and the requirement to produce identification documents to verify ages was submitted to evidence matters of control by the Appellant. It was further submitted that working in the Store to relieve boredom of Ms Gomes and Ms Senevirathna and to enable them to practise their English are benefits in kind.[81]It was submitted that the Appellant’s appeal as to liability should be dismissed. Turning to matters of penalty, I was referred to the skeleton argument and it was submitted that the court does not have unfettered discretion in respect of penalty. E. IMPRESSION OF WITNESSES[82]When assessing the credibility of witnesses, I have assessed this by reference to what each witness has said, and not by reference to how it has been said or by reference to any role or position with any witness holds.[83]Turning first to Mr Jeneesan, I am acutely conscious that he has a degree of broken English. This was apparent from some of his answers, as well noting the acceptance of the same of Mr Beevers from Stockton on Tees Borough Council who had interviewed him. It was because of such matters that I granted permission for him to proceed by way of an interpreter. I have therefore applied caution when assessing his credibility, because sometimes matters can literally be lost in translation and misinterpretation can ensue. Even with this caution applied, there was a degree of inconsistency to Mr Jeneesan’s evidence, for example about his level of English. His first witness statement describes himself as being “fluent” in English, and then his second statement of the same date issues a caveat to it. In his oral evidence he said he was not fluent. The 2 witness statements are dated the same date. Whilst I note that there was my direction to comply with the provisions of the Civil Procedure Rules in respect of evidence being in one’s own language and the appropriate translation certification into English, that does not explain the difference in position, and nor does it explain the difference in his oral evidence. It is the inconsistency in Mr Jeneesan’s own description of his level of English which I weigh in the balance. When assessing Mr Jeneesan further, when asking him specific questions to elicit specific detail, he said he could not remember. This related to matters which were important, such as the detail of Ms Senevirathna and Ms Gomes being at the Store. However, I do not criticise Mr Jeneesan in this regard, as the strength of memory varies between individuals and can be impacted for a whole host of reasons, including health, stress, age and such like. When taking a holistic overview of Mr Jeneesan as a witness, I find he sought to assist the court by answering the questions asked of him and there was credibility to his evidence, but weighing the matters discussed above into the balance.[84]In respect of Ms Ayupala, she was hampered in a similar way in respect of her memory, for example not remembering the specifics of all matters as set out above, but for the same reasons I have just referenced this is not a matter which of its own impacts on credibility but rather is balanced holistically when assessing Ms Ayupala. Ms Ayupala did readily accept factual matters of relevance, for example the tasks which Ms Senevirathna and Ms Gomes undertook in the Store and the fact of checking their identification documents. Such acceptance of matters demonstrates an openness in her evidence and a balance to her evidence. I find she was measured, straightforward and credible when undertaking that holistic assessment to which I have referred.[85]The next evidence was that of Mr Martin. I find he was clear in his evidence as to what he did in the investigation leading up to these proceedings, and he did not seek to stray or speculate beyond this. He reflected carefully in the witness box, and accepted matters he could not remember. I found that Mr Martin was straightforward and credible.[86]Mr Beevers was the next witness which I assess. I find he too was straightforward in the evidence which he provided, for example readily acknowledging Mr Jeneesan had broken English and that the full interview transcript had not been provided. Given such acknowledgments by him, and in the context of seeking to provide full and detailed answers to the court, I found he was a credible and reliable witness.[87]Ms Cooper was a witness who I find had a good recollection of matters, providing real detail which resulted in a high level of authenticity in what she said. Her oral evidence and written evidence were consistent. She set out explanations for the views which she held from the evidence. She was clear, credible and honest.[88]I next heard from Mr Bryden and I find the evidence he gave remained consistent with his statement and the recorded interview record from 11 July 2024. He referenced how Ms Gomes had made some corrections to the answers before signing it, and he acknowledged he had not referenced that within his statement, but provided an explanation that he did not consider it important, and that what was important was that he had referenced that she had signed it. I find Mr Bryden cannot reasonably be criticised for omitting what would perhaps be seen by him to be an innocuous piece of evidence, namely Ms Gomes updating her answers before signing it. The fact that Mr Bryden offered that in response to questioning demonstrated his openness. I found that he was straightforward and credible in the evidence which he provided.[89]The final witness to provide evidence was Ms Langley. She provided evidence as to more procedural matters. She was able to assist the court in clarification of some matters, and she identified when she did not know or could not answer a question. She took a measured and factual approach, and I found that she sought to assist the court as best as she could, and I found her to be credible in her evidence. F. APPEAL FRAMEWORK, BURDEN OF PROOF AND THE LAW The appeal framework[90]Section 15 of the Act states as follows:(1) It is contrary to this section to employ an adult subject to immigration control if— (a) he has not been granted leave to enter or remain in the United Kingdom, or (b) his leave to enter or remain in the United Kingdom— (i) is invalid, (ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or (iii) is subject to a condition preventing him from accepting the employment.(2) The Secretary of State may give an employer who acts contrary to this section a notice requiring him to pay a penalty of a specified amount not exceeding the prescribed maximum.(3) An employer is excused from paying a penalty if he shows that he complied with any prescribed requirements in relation to the employment.(4) But the excuse in subsection (3) shall not apply to an employer who knew, at any time during the period of the employment, that it was contrary to this section.(5) The Secretary of State may give a penalty notice without having established whether subsection (3) applies.[91]Section 17 of the Act sets out the basis of an appeal against a CPN:(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. The burden of proof (addressing Ground 1)[92]The standard of proof is one of the balance of probabilities, that is proving something is more likely than not. As noted above, there had been a dispute between the parties on whom the burden rests, and upon which I provided an ex tempore judgment at the hearing on 16 April 2025 (which addressed Ground 1 in this appeal).[93]The Court of Appeal provides what I regard as the clearest guidance in this regard in Akbar v Secretary of State for the Home Department [2017] EWCA Civ 16 at paragraph 8 of the judgment of Cranston J: “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”.[94]Furthermore, when applying to the facts of the case, Cranston J proceeds to explain at paragraph 58: “The burden was on Mr Akbar to bring himself within one of the grounds of appeal in section 17(1) of the 2006A ct. 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”.[95]On 16 April 2025 I considered the argument advanced on behalf of the Appellant that pursuant to section 17(3) of the Act that this appeal is a re-hearing of the Respondent’s decision to impose the penalty, such that effectively the decision taken by the Respondent is the decision that comes first and which it must therefore prove. However, the Court of Appeal in Akbar as set out above has provided clear guidance on the burden of proof, and even if what I have cited from paragraph 8 is obiter I find that the application to the facts at paragraph 58 is not, and instead forms part of the binding decision.[96]Furthermore, the decision in Akbar bases itself directly in the wording used in section 17(1) of the Act, in that it is the employer who can appeal based on the 3 grounds listed, and explicitly must therefore prove the same grounds.[97]For all those reasons, the burden of proof is one which rests upon the Appellant. Employment[98]As will be noted above, a CPN is based upon there being an employment relationship. Section 25(b) if the Act explains: “a reference to employment is to employment under a contract of service or apprenticeship, whether express or implied and whether oral or written”.[99]This is language which mirrors language of section 230 of the Employment Rights Act 1996, which states: “(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. “(2) In this Act “contract of employment” means a contract of service or apprenticeship whether express or implied, and (if it is express) whether oral or in writing”.[100]As such, case law considering the Employment Rights Act 1996 is helpful when considering the matter of whether Ms Gomes and Ms Senevirathna were employed or not by the Appellant. In this regard, I have been referred to Autoclenz Limited v Belcher [2009] EWCA Civ 1046 (a decision which was upheld by the Supreme Court), which states: “In essence there are four basic requirements that must be fulfilled before it can be said that there is a contract of employment and so a relationship of employer and employee. First, the employer must have undertaken to provide the employee with work for pay. Secondly, the employee must have undertaken to perform work for pay. Those obligations are mutual. The third requirement is that the employee must have undertaken to perform the work personally; he is not entitled to sub-contract the work to another. Fourthly, it is also generally accepted that there is a further requirement before a court will hold that there is a contract of employment between employer and employee, i.e. that the employee agrees that he will be subject to the control of the employer to a certain minimum degree”.[101]The decision of the Supreme Court in Autoclenz ([2011] UKSC 41) explains further (at para 35):
“So the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part. This may be described as a purposive approach to the problem. If so, I am content with that description”
[102]Whilst this is in the context of discussing a written contract, I find the same principle applies, namely that the relative bargaining powers of the parties must be taken into account, and it is necessary to consider all the circumstances of the case, and taking that purposive approach described.[103]There is other helpful case law which has been referred to in the context of establishing whether or not there is an employment relationship, and I will address matters arising from them below. G. ANALYSIS[104]I begin this analysis by considering some relevant preliminary matters. Preliminary Matters Mr Jeneesan’s level of English and his interview with Stockton on Tees Borough Council[105]I am invited on behalf of the Appellant to place no weight upon the interview transcript of the interview which took place between Mr Jeneesan and Stockton on Tees Borough Council on 12 September 2024. I am concerned by that interview transcript for the following reasons.[106]Firstly, the interview transcript is incomplete. The transcript references it being 18 pages long, yet I only have 9 pages. The explanation by Mr Beevers on behalf of Stockton on Tees Borough Council is because the first half of the interview related to a separate matter relating to test-purchase which had taken place. However, Mr Beevers seeks to rely upon the warnings he provided at the outset of the interview, yet that is part of the transcript which is missing. In addition, the whole context to the preceding conversation is simply not there. If the police were to interview a suspect for 2 offences and only charge the suspect with one following the interview, the interview transcript would not be separated so as to only disclose that relating to the one offence, because an interview is a self-contained exchange. It is completely artificial to separate matters out. I cannot determine whether there was a clear demarcation between the first half of the interview which Mr Beevers states was conducted pursuant to PACE, and the second half of the interview. There is a specific code of practice which relates to PACE interviews, and a number of requirements apply, and again I do not know whether they were complied with. Whilst it may be said that I do not need to be troubled by that as it related to a separate matter, the fact is that it was linked by one seemingly seamless interview. In view of this, I can have no confidence in the interview record presented, and I place no weight on the substance of what is included, save for noting that it is clear from it that Mr Jeneesan does display broken English.[107]Furthermore, Mr Beevers recognised in his oral evidence that Mr Jeneesan used words in the wrong places and missed out words, and had broken English, but that he was satisfied that Mr Beevers and he understood one another. However, it is evident that was not the case, as shown by the misunderstanding of the word “partner”, Mr Beevers saying he had assumed it to be “wife” and in fact Mr Jeneesan referring to it as a “work colleague”, and the confusion around this is seen in the dialogue exchange. Mr Jeneesan displayed clear hallmarks of simply not understanding. It was incumbent upon Mr Beevers and Stockton on Tees Borough Council to ensure that the interview was halted, and for an interpreter to be provided. I am not overly critical of Mr Beevers, as his evidence was that he had no formal guidance from Stockton on Tees Borough Council as to when interpreters should be instructed. This is a significant failing and negatively impacts on the right to a fair and just process. I would encourage Stockton on Tees Borough Council, and indeed all local authorities where such guidance is absent, to urgently review their policies and processes in this regard and ensure that there is clear guidance in place to identify and assess when an interpreter should be instructed. The level of understanding of English of Ms Gomes and Ms Senevirathna[108]I next consider the level of any understanding of English of Ms Gomes and Ms Senevirathna. In considering all the evidence before me, I find that they could both speak, read and understand English to such a level that they did not require the assistance of an interpreter when engaging in interviews and discussions with the Home Office (including with Immigration Officers). I make this finding considering the evidence of Mr Jeneesan and Ms Ayupala, noting that they were able to interact with them and that Ms Gomes and Ms Senevirathna were able to react with customers (but I do note a limitation that on Mr Jeneesan’s evidence he did not have any in-depth conversations with them).[109]Supporting this finding further are the visa applications of both Ms Gomes and Ms Senevirathna. These applications were both completed on 12 August 2023 and 8 September 2023 by Ms Gomes and Ms Senevirathna respectively, and they were made before these proceedings and therefore in relative calmness away from these proceedings. Ms Gomes and Ms Senevirathna both record “English” as the contact language, and furthermore as to the preferred language for use in talking to them about their applications both Ms Gomes and Ms Senevirathna have selected “English”. Both applications also detail that they have passed an approved English language test in the last 2 years by the awarding body IELTS UKVI General. The said applications are accompanied by a signed declaration by both individuals which includes the following: “I understand that if false information is given, the application can be refused and I may be prosecuted, and, if I am the applicant, I may be banned from the UK”.[110]I add further that it is self-evidently required for such a healthcare role given the need to understand, to an extent, the intricacies of patients’ health needs; health, like law, often uses a bespoke vocabulary, and therefore a good command of English is implicit from such a role. In this regard I note that a health and care worker visa requires as follows (as set out in the evidence of Ms Langley, citing the Skilled Worker Visa Guidance): “You must prove you can read, write, speak and understand English to at least level B1 on the Common European Framework of Reference for Languages (CEFR) scale”.[111]I take judicial note that a scale sets out in that guidance is as follows for “B1” and “B2”, which record both such ratings in the overarching category of “independent user”: B2 Can understand the main ideas of complex text on both concrete and abstract topics, including technical discussions in his/her field of specialisation. Can interact with a degree of fluency and spontaneity that makes regular interaction with native speakers quite possible without strain for either party. Can produce clear, detailed text on a wide range of subjects and explain a viewpoint on a topical issue giving the advantages and disadvantages of various options. B1 Can understand the main points of clear standard input on familiar matters regularly encountered in work, school, leisure, etc. Can deal with most situations likely to arise whilst travelling in an area where the language is spoken. Can produce simple connected text on topics which are familiar or of personal interest. Can describe experiences and events, dreams, hopes & ambitions and briefly give reasons and explanations for opinions and plans.[112]Whilst I note that Mr Bryden says that Ms Gomes reached a level B2, even taking the minimum required for the health and care worker visa at B1, this still meets the threshold of being an independent user and is consistent with the presentation of them before Miss Cooper and Mr Bryden who interviewed Ms Senevirathna and Ms Gomes respectively, and evidence of both individuals were able to be recorded contemporaneously in time.[113]When weaving all of this together it is patently evident that Ms Gomes and Ms Senevirathna could and did have a good command of English, and in view of all that which I have just set out I am satisfied it was of a level which did not require an interpreter to be utilised to assist their interviews. Even without the classifications above being relied upon, I still find that for the reasons set out above Ms Senevirathna and Ms Gomes could read, write and understand English to a level which meant that they did not require the assistance of an interpreter when engaging in interview or discussions with the Home Office (including with Immigration Officers). Were Ms Senvirathna and Ms Gomes employed by the Appellant (Ground 2) What did Ms Senevirathna and Ms Gomes do, if anything, in the Store?[114]From the evidence of Ms Ayupala, as the Store’s manager, as well as the observations from the attending Immigration Officers and the stills captured from CCTV footage, I find that Ms Senevirathna and Ms Gomes undertook the following activities in the Store:a. Serving customersb. Selling alcohol to customersc. Using the lottery machine and selling such lottery tickets/scratch cardsd. Processing parcel deliveries and returned parcelse. Stacking shelvesf. General activities involved with the operation of the Store (including cleaning)[115]I do note there is a slight distinction to be made, in that Ms Ayupala’s written evidence refers to showing Ms Senevirathna and Ms Gomes how to do such activities, but for the avoidance of any doubt I find that they were doing such activities. Ms Ayupala effectively conceded this in her evidence, certainly in relation to the sale of alcohol (as she sought for their identification documentation to be checked for this very purpose), and the snapshot obtained when Immigration Officers attended, and notably the evidence of Mr Martin, Ms Cooper and Mr Bryden, along with the CCTV image stills, is all consistent with such activities being undertaken. What were the frequency and duration of Ms Senevirathna and Ms Gomes attending the Store to undertake the said activities, and what were their expectations in doing such work?[116]I find that the interviews of Ms Senevirathna and Ms Gomes provide the best evidence as to their activities at the Store because their accounts are captured ‘in the moment’ at the Store, and there is a rawness to that evidence. There was no impact on their ability to understand what was asked of them, as I have found above. I have considered whether the attendance by the Immigration Officers would have likely caused anxiety to them, and I find it likely would have done, noting the evidence of Ms Cooper and Ms Bryden, but also applying common sense (namely that when a number of uniformed officers appear before you, with crowds said to have gathered outside, it will undoubtedly be a shock and cause some level anxiety). However, in many respects it is similar anxiety to that which witnesses may feel in attending court to give evidence, with public watching on and the formalities which accompany it. I find it is unlikely to diminish the credibility of what was said, and in fact it is likely to sharpen what was said, particularly given the declaration which was required to be signed at the conclusion of the interviews. The interviews of Ms Senevirathna and Ms Gomes undertaken on 11 July 2024 therefore provide key evidence before this court.[117]Ms Gomes states that since Monday (and when looking at a calendar that is 8 July 2024), she says she had been training, and that after a week’s training she would start at the Store. She says she worked at the Store between 5pm and 10pm, 7 days per week, and that she expected to receive £5.50 per hour following training. She said that she came the previous Friday (5 July 2024), trained on the Saturday (6 July 2024) and then began training on the Monday (8 July 2024).[118]As to Ms Senevirathna, her interview demonstrates she had worked for 7 consecutive days previously, but that she regarded it as training, and she said that she worked on Sunday “4pm till 9pm. 10pm” [sic], and “Other days Friday and Monday 1pm till 10pm” [sic].[119]When considering the interview of Ms Senevirathna, she states she was not working, and only training, yet she sets out undertaking this for the preceding 7 days consecutively and for the specific shifts referred to. When placing her interview alongside Ms Gomes, and when considering all the circumstances of the case (notably the 7 consecutive days worked, the regular times worked, the commitment to attending at those times, the fact that she was looking for alternative work to be paid but had not found it), I find as a fact that it is more likely than not Ms Senevirathna was working under the same basis as Ms Gomes, namely that by undertaking what was said to be training would lead to immediate future pay.[120]In view of such findings, I find that Ms Senevirathna and Ms Gomes had an obligation to attend the Store to perform the tasks identified above, and to attend for the shifts which have also been identified. I do not accept the evidence of Mr Jeneesan and Ms Ayupala that they could “come and go”; they were provided with specific shifts. Ms Gomes sets out the specific bus she needed to travel upon, and in doing so builds authenticity into her responses. Attending for 7 consecutive days demonstrates a level of commitment, and alongside that an obligation to commit to such a pattern of work. Were there any obligations upon the Appellant to remunerate Ms Senevirathna and Ms Gomes?[121]I have found above that Ms Senevirathna and Ms Gomes, in undertaking the work I have found above, had an expectation they would receive pay, namely at £5.50 per hour, on the following week. However, that expectation transitioned to an obligation upon the Appellant by virtue of the sheer frequency of work and set shifts which Ms Senevirathna and Ms Gomes were required to work. I made this finding in considering the interview of Ms Gomes and accepting that as being the best evidence for the reasons I have already set out above.[122]Ms Senevirathna and Ms Gomes both referenced that they were training. Ms Ayupala also stated this, as did Mr Jeneesan. There is therefore a consistent picture that this is what the work amounted to. It is submitted on behalf of the Appellant that being such training it is not remunerated and whilst work, it is voluntary and does not meet the definition of employment. On behalf of the Respondent, it is submitted that it represents a benefit, namely the work experience and practising English. I am not attracted to the submissions of either party in this regard.[123]In respect of the latter submission, in the absence of further evidence, such purported work experience or practising English cannot reasonably meet the threshold of consideration (namely remuneration) in the context of an employment contract.[124]When turning to the submission on behalf of the Appellant, I note the definition of training: “the process of learning the skills you need to do a particular job or activity” [Cambridge Dictionary].[125]Training in the context of a job is preparatory in nature, as this definition sets out. It is designed to ensure the trainee is equipped for the substantive role to be performed. A trainee chef needs to know how to use the cooker, the trainee mechanic needs to know the parts of an engine and the trainee solicitor needs to know how to present a case at a hearing. Training is about laying some clear foundations without which the job cannot be performed. There is therefore a clear nexus between the training and the substantive job. I find that a distinction between “trainee time” and subsequent “trained work” is a distinction which cannot be reasonably maintained. This is because the work undertaken between 8 to 11 July 2024 (inclusive) was predicated on receiving pay following the initial training phase (being £5.50 per hour from Monday 15 July 2024 on the evidence of Ms Gomes, which I have accepted as set out above).[126]Had Ms Senevirathna and Ms Gomes not undertaken the work on week commencing 8 July 2024, Ms Senevirathna and Ms Gomes would not receive pay the following week. The 2 periods of time (the matters in week commencing 8 July 2024 and the future period from 15 July 2024) are therefore inextricably linked, and all the work which Ms Senevirathna and Ms Gomes undertook in that first week was on the reasonable expectation and obligation of financial remuneration the following week. Therefore, the pay promised from week commencing 15 July 2024 encompassed all the work they had actually undertaken already. In many respects, it reflects how pay applies for the significant proportion of workers and employees who are paid in arrears at the end of a week or the end of a month.[127]I have considered what the position would have been had the Appellant, or Ms Senevirathna and Ms Gomes, decided not to progress to the second week of work following the said period of training. In these circumstances I find that it was implied from the conduct of the parties and their respective relationship that Ms Senevirathna and Ms Gomes would receive pay for the times which they actually worked, noting that it was 7 days per week for set times, and noting the findings I have made as to the actual activities which they undertook. It is evident that for the reasons stated they met the definition of being under a contract of employment even in that first week of work.[128]The approach which I have taken above is also consistent with the definition of “employee” within the Code, which defines it as follows (emphasis added): “‘Employee’ means someone who is, or who will be, employed under a contract of employment (contract of service) or apprenticeship”.[129]Whilst the subsequent £5.50 per hour from Monday 15 July 2024 may be seen as very inadequate recompense, both by the fact of making it conditional upon work in week commencing 8 July 2024 and by the level at that which it was offered (noting it is substantially below the national minimum wage), in the context of these proceedings the court is not concerned with the adequacy or otherwise of the remuneration, being the consideration to the contract. Was there a contract of employment between the Appellant and Ms Senevirathna and/or Ms Gomes?[130]In having set out some level of details to the specific findings of fact above, it flows that Ms Senevirathna and Ms Gomes were each employed by the Appellant. There was a mutuality of obligation, with Ms Senevirathna and Ms Gomes having an obligation to attend the Store on the set times as had been agreed with the Appellant, and to then undertake the duties set out, and the Appellant had an obligation to remunerate them as has been found above. When stepping back and looking holistically at all the factual matrix, the Appellant had the significant power in the relationship and set out its terms which had been accepted by Ms Senevirathna and Ms Gomes as evidenced by their conduct in turning up day after day for the preceding week. Even if the burden had been on the Respondent to prove such a matter, it is a burden which I find it would have met on the evidence before the court. However, the burden rests on the Appellant to show that Ms Senevirathna and Ms Gomes were not employed, and they have failed to discharge that burden for all the reasons I have set out; the hallmarks of an employment contract are clearly present. Liability for the CPN (Ground 2)[131]In finding that Ms Senevirathna and Ms Gomes were employed by the Appellant, I find ground 2 of the Appellant’s appeal as set out above, namely that the Appellant is not liable for the CPN as neither Ms Gomes nor Ms Senevirathna had been employed by the Appellant, must be dismissed. The amount of the penalty (Ground 3)[132]As set out above, an appeal can be brought pursuant to section 17(1)(c) in that the penalty is too high, and indeed the Appellant brings such a ground and seeks a reduction of the amount, which the court has the power to do pursuant to section 17(2)(b).[133]Section 17 of the Act outlines further: (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.[134]Section 19 of the Act states:(1) The Secretary of State shall issue a code of practice specifying factors to be considered by him in determining the amount of a penalty imposed under section 15.(2) The code— (a) shall not be issued unless a draft has been laid before Parliament, and (b) shall come into force in accordance with provision made by order of the Secretary of State.(3) The Secretary of State shall from time to time review the code and may revise and re-issue it following a review; and a reference in this section to the code includes a reference to the code as revised.[135]The said Code as applicable on 11 July 2024 was issued on 23 January 2024 and came into force on 13 February 2024. Ms Langley exhibits the Code to her witness statement. Helpfully, the earlier version of the Code has been provided to me within the authorities bundle and the details provided in the skeleton argument on behalf of the Appellant, which provides some context, namely that prior to the coming into force of this version of the Code the penalty for a first breach was £15,000 (and £20,000 for multiple breaches within a 3 year period). The Code as issued on 13 February 2024 therefore represents a tripling of penalties.[136]The Code sets out it is to be used: “When calculating the penalty amount; where the breach of section 15 of the Act occurred on or after 13 February 2024”.[137]There is no dispute this is the applicable Code, and it states further: “This is a statutory code. This means that it has been approved by the Secretary of State and laid before Parliament. The County Court (and equivalent in Scotland) is required to determine appeals against liability for a civil penalty by having regard to this code of practice. Courts and Employment Tribunals may take account of any part of this code which may be relevant. Home Office officials will also have regard to this code when administering illegal working civil penalties under the Act”.[138]In terms of the calculation of the penalty amount, the Code outlines as follows:
“The Home Office determine the penalty level depending on whether this is the employer’s first breach of the Scheme or a repeat breach. Penalty level for first breach within the last three years: Employers £45,000 (per worker) … The actual penalty amount will depend on an employer’s history of compliance with right to work checks as an employer. It will be determined according to whether an employer qualifies for reductions in the penalty amount by providing evidence that they have met the mitigating factors. Each case of illegal working is considered by Home Office officials on the basis of the information available. The first breach calculation should be used where you have not been found to be employing illegal workers within the previous three years. The starting point for the calculation of the civil penalty is £45,000 before reductions are applied … First breach Mitigating factor 1: is there evidence an employer has already reported the suspected illegal worker to the Home Office and received a Unique Reference Number? If the answer is yes, penalty is decreased by £5,000 per worker. If the answer is no, the penalty is not decreased. Mitigating factor 2: is there evidence an employer has actively co-operated with the Home Office? (Active co-operation during our visit and investigations could lead to any civil penalty being reduced in amount). If the answer is yes, penalty is decreased by £5,000 per worker. If the answer is no, the penalty is not decreased. Mitigating factor 3: is there evidence an employer has effective right to work checking practices in place together with mitigation for factors 1 and 2? If the answer is yes, the Home Office issues a Warning Notice. If the answer is no, the Home Office issues a Civil Penalty Notice for the total value calculated in each case”
.

Penalty level for first breach within the last three years: Employers £45,000 (per worker) …

[139]In this case, a discount of £5,000 was applied per employee under mitigating factor 2, thus reducing the penalty to £40,000 per employee. Based on the Code, I find that it has been applied correctly and the discount has been correctly applied. The application of the Code and the mathematics employed is completely sound and accurate.[140]The Appellant submits the court can consider other factors outside the Code for determining the amount of the penalty, and notably that section 17(3)(b) of the Act enables the court, at this re-hearing, to consider “any other matters which the court thinks relevant”. However, I find that the entirety of section 17(3) as I have set out above must be considered together rather than reading separated extracts. As can be read, it references considering the Code (subsection (a)) alongside any other matters the court considers relevant (subsection (b)). Given the very clear formula as set out in the Code for the calculation of the penalty, I find that the court does not have an unfettered discretion. It is bound to follow that statutory formula. Other relevant matters, insofar as the calculation of the penalty is concerned, may include matters which come to light which feeds into the mitigating factors. It is not the role of the court to ride roughshod over the process which has been laid out in the Code.[141]In Ashfaq v The Secretary of State for the Home Office [2012] 10 WLUK 14, Sherriff McGowan considered additional matters and reduced the penalty. I am not bound to follow the case, and I do depart from it for the following reason. I consider that the judgment has erroneously mixed the civil and criminal jurisdictions. At paragraph 64 and 65 of the judgment it states: “64. Now, if the pursuer in this case had been prosecuted and was appearing before the the [sic] Court for sentence, the Court, in fixing the level of any fine would be obliged to take account not of his personal and financial circumstances, but also of his ability to pay such a fine within a reasonable period of time. To fail to do so would be an error of law. 65. In my view, the same principles must apply here …”.[142]By way of comparison, in a civil personal injury claim when assessing damages the court will not consider the personal and financial circumstances or the ability of a defendant to pay. Whilst often there is an insurer who will ultimately be responsible for payment, there are many instances where that is not the case (one such example maybe injuries caused by the owner of an animal towards a person where there is no such insurance in place). The court will determine liability and once proven, it will then assess damages. Issues of personal and financial circumstances, and the ability to pay, will be considered at the point of considering how any judgment sum will be satisfied, for example whether to order payment by instalments. As the Sheriff has set out, the criminal jurisdiction may take a different approach in different circumstances, but to conflate that with the assessment in an appeal such as this is wrong for the reasons stated.[143]Furthermore, if that were to be the case that this was the approach to be taken, then it appears to me that in every single situation where a CPN is issued it could lead to employers seeking to appeal and providing evidence to substantiate other reasons outside the parameters of the Code as to why the amount of the CPN should be reduced. I find such an approach would bring absolute chaos and uncertainty to the statutory regime and undermine it. I find that cannot be the intention of Parliament through the Act and reinforces my interpretation of needing to read the entirety of section 17(3) as set out above.[144]In addition, if the Appellant’s submission was to be accepted in this regard, the Act does not set out any objective criteria or guidance by which to assess whether a penalty is “too high”, and as such it would be left to the subjective analysis of each individual judge. This would inevitably lead to a likely widespread spectrum of decisions. Returning to section 19(1), it is the Code which specifies the factors for consideration. This appeal is a re-hearing of the decision of the Respondent, and that must be to re-hear it in accordance with the Code and the factors contained therein given the interplay between sections 17 and 19 as I have just outlined.[145]The approach which I have taken above is also consistent with that of Sheriff Kinloch in Mohamed v The Advocate General for Scotland (on behalf of the Secretary of State for the Home Department) [2017] SC LIV 23, who stated: “55. The pursuer’s ability to pay the penalty is not, in my view, something which under the code of practice entitles him to any reduction in the penalty. The relevance of his financial circumstances is that he could have asked the defendant’s officers to be allowed to pay the penalty in instalments over a period of up to three years. That is not a power which is given to the court under section 17, as the court can only cancel or reduce the penalty, or dismiss the appeal. 56. The result is that the pursuer has produced no good reason for departing from the application of the code. The Secretary of State’s quantification is sound. Whatever I might think about the likely effect of the civil penalty on his livelihood, the appeal must in my view fail”.[146]I am under no illusion as to the impact such a penalty may have not only on Mr Jeneesan, but also Ms Ayupala as the Store manager. However, it is a decision of Parliament, with revision by the Respondent as permitted under section 19(3), which has set the penalty level as a starting point at £45,000 as set out above, and it is again not for the court to go behind that.[147]I note the further submission made on behalf of the Appellant that the court should apply a 30% discount, which is the discounted sum which would have been applicable had the Appellant paid the CPN within 21 days (including within 21 days from the outcome to the filed objection).[148]As Lewis LJ explains in Secretary of State for the Home Department v Ouedrani [2021] EWCA Civ 1181: “The Act, however, does not provide for an option of paying a discounted amount following an appeal. Nor does the Code provide for discounted payments if an employer chooses to appeal. The scheme simply does not provide for an option to make a fast payment following an appeal in order to obtain a discount”.[149]There is no basis on which to depart from this position in this case. Whilst the Appellant seeks to distinguish the case on the basis that it was determined under an earlier version of the Code, I find the principle set out remains the same, and indeed I could cite the same words as set out above and they equally apply to the February 2024 Code.[150]I find that the Appellant has therefore failed to prove that the amount of the penalty is too high for all the reasons which I have set out, and accordingly I dismiss the appeal in this regard. H. CONCLUSION[151]For all the reasons which I have set out above, I dismiss this statutory appeal in its entirety. I invite the parties to consider and, agree where possible, any consequential matters, failing which I will hear submissions on the same and determine them at the hearing listing. HHJ Robinson