Note on a successful appeal hearing – 17 August 2026
Our client (appellant)-v- Secretary of State for the Home Department
Counsel for Appellant – Mr Parminder Saini, No. 5 Barristers’ Chambers
The case was concerned with a penalty by the Secretary of State for the Home Department (“the Respondent”) given to the Appellant totalling a staggering original aggregate face value of £280,000, the largest penalty in the UK history given for an alleged breach of Section 15 (1) of the Immigration, Asylum and Nationality Act 2006 according to published gov.uk figures.
The Appellant is a small business enterprise operating as a local supermarket which had been trading for just over three years at the point when an unannounced enforcement raid took place on its premises in October 2024. Following this, the Respondent issued Civil Penalty Notices (the Notices”) to the Appellant in January 2025. The Respondent subsequently issued a second Notice in June 2025.
When the Notices were issued and the appeals filed with the court, Akbars [2024] EWCA Civ 1387 decision was in a process of being decided by the Supreme Court. The Supreme Court gave judgment on Akbars on 27 July 2026, which send shock waves to presumably substantial number of Notices issued by Secretary of the State to other business. The Appellant’s appeal hearing was listed to take place in mid August 2026 for 3 days.
Akbars ruled that the Civil Penalty Notices issued by the Secretary of State for the Home Department are legally invalid if they fail to particularise which specific limb of Section 15 (1) of the Immigration, Asylum and Nationality Act 2006 applies, rather than listing mutually exclusive alternatives.
As a result, the Appellant pursued the invalidity point of the Notices and the Secretary of State withdrew the Notices as a result.
The parties to the proceedings exchanged competing consent orders in an endeavour to dispose of the appeal hearing listed to take place in a week’s time, however, the matter did not settle due to issues outstanding between the parties and the hearing proceeded.
ICC Judge Mullen was faced to decide the following matters:
- Was an amendment to the grounds of appeal necessary following Akbars and, if so, should it be granted;
- Considering the withdrawal of the Notices, how the proceedings should be disposed of; and
- Costs.
It was the Appellant’s case that the head of appeal under Section 17(1)(8) is all that is required to be pleaded in the Grounds of Appeal. The Grounds of Appeal did not include an argument about the Notices being invalid as a result of failing to set out in the Notices which precise breach has been alleged. However, the Grounds of Appeal included the statutory ground under Section 17(1)(8). It was ICC Judge Mullen’s view that had the Notices not been withdrawn, it would have been necessary to amend the Grounds of Appeal and he would have granted that application on the basis that it was on a short point of law and did not require additional evidence.
Disposal of the appeal where Notices have been withdrawn
None of the cases referred to the ICC Judge Mullen by legal representatives at the hearing provided a direct guiding principle in an unprecedented case such as this. This is a case where the Notices, the subject matter of the appeal, have been withdrawn and as a result, fallen away. The parties agreed that the Notices were legally ineffective.
Section 17 (2) provides the court with three powers on appeal:
- Allow the appeal and cancel the penalties, allow the appeal and reduce the penalty, or dismiss the appeal.
The Secretary of State argued that her withdrawal of the Notices terminated the appeal and as a result, she asked the court to dismiss the appeals with no costs. The Respondent’s position was that the appeals remain pending at least for judicial disposal, costs and ancillary orders.
Section 17 does not demonstrate what the court can do where the Notices were withdrawn, and where there was no longer any penalty outstanding. The Judge considered that he could not allow the appeal and cancel the Notices under section 17(2), but the appeal proceedings should be formally disposed of in a manner that reflects the appellant’s success in those penalties being withdrawn. The way to deal with this was to recite in the Order the fact of the Notices, the handing down Akbars, the Secretary of State’s withdrawal of the Notices and the fact that following the withdrawal the Notices no longer existed.
The Order would then make it clear the reason why the appeal has been dismissed and that is because the penalties no longer exist.
The Appellant’s appeal was successful in substance and object, the Notices were set aside and Notices were withdrawn. The principle starting point is that costs follow the event. Although the Appellant failed to state the discrete Akbars invalidity point at the time when the appeal application was filed (and before Akbars was decided by the Supreme Court), it was for the Secretary of State to comply with the statute when issuing the Notices. In addition, the Secretary of State was also the respondent in Akbars.
The Secretary of State was ordered to pay the Respondent’s costs on a marginally reduced basis as the invalidity point was not raised in the original appeal application.
Parminder Saini of No 5 Barristers’ Chambers appeared for the Appellant, instructed by Aida Vyšniauskaitė of Branch Austin McCormick.
