Backhouse Jones Watermark

Clandestine Civil Penalty

18 March

The migrant crisis is an ever increasing problem with a substantial impact on the road transport and rail industries. UK Border Force are now putting tighter controls in place at many of the ports, including Calais, Coquelles and Dunkerque.

The Immigration and Asylum Act 1999 (‘the Act’) entitles UK Border Force to impose a civil penalty against a business and/or a driver who are caught with clandestine entrants aboard their vehicle. In 2003, an appeal against the level of penalty that could be imposed on a Company was determined, with an emphasis on the procedures that the business had implemented to secure against clandestine entrants.  This ultimately led to the introduction of two codes of practice governing the civil penalty regime for vehicles.  These are the Civil Penalty Prevention of Clandestine entrants (‘prevention code’); and the Civil Penalty Level of Penalty (‘penalty code’).

The prevention code is an extremely important document. It describes the minimum systems to be put in place by businesses to prevent clandestine entrants gaining access to a particular vehicle.  Such methods include the use of security devices and checklists which are completed by the driver and monitored by the company.  UK Border Force also requires training to be undertaken by the drivers to bring awareness of both the risks, and the ways to secure and check their vehicles whilst abroad.

Businesses are encouraged to review the code of practice (located at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/257187/levelofpencodeofpractice.pdf) and review their systems to make sure that they are compliant.

In the event that clandestine entrants are located on your vehicle the penalty code permits UK Border Force to take action not only against the company operating the vehicle, but also the driver – for who the company will be jointly and severally liable.  The maximum penalty that can be levied against a business or driver is £2,000 per clandestine entrant. Vehicles can also be detained where a charge is levied, and even sold if that charge remains outstanding.

In the event that adequate systems (those in compliance with the prevention code to a minimum standard) are put in place, a company’s liability for penalty should be substantially reduced. Provided the driver is sufficiently trained and implements the necessary systems, the likelihood of clandestine entrants gaining access to the vehicle should be substantially reduced.

The government maintains that the existing civil penalty is an important part of the official response to encourage businesses to implement systems to prevent the risk of illegal intruders.  However, it concedes that the current regime takes a simplistic and binary approach to imposing a penalty. It also admits that this approach has failed to keep abreast of developments (whether more sophisticated methods used by migrants, or new technology available to secure HGVs). The current minimum standard, therefore, is no longer seen to provide an adequate level of security. Neither is the binary approach considered adequate to suitably recognise or reward those who have taken additional steps to secure their vehicles.

For these reasons, the Home Office has implemented a consultation (located at https://www.gov.uk/government/consultations/the-uks-clandestine-civil-penalty-regime) to consider reform to the prevention and penalty code.

Briefly, the aim of the consultation is to:

  • Revise the penalty scheme with the aim of punishing the worst offenders;
  • Ensure the penalty scheme incentivises operators to invest in high quality security measures;
  • Encourage continual improvement of vehicle security;
  • Work with the industry to target the worst offenders; and
  • Explore with operators how best to incentivise good practice.

The consultation document produced by the government provides some alarming figures in respect of the growing issue.  In 2012/2013 the number of illegal immigrants prevented from entering the country was 11,000, by 2013/2014 this had increased to 18,000 and in 2014/2015 this jumped to 40,000.

UK businesses should take heart from the government’s new proposals. Its avowed aim is to provide a framework which is “harsh on the reckless, encourages the careless to improve, and rewards those who have invested in security”. In other words, the proposals are aimed squarely at errant hauliers. Get your house in order and not only will your business security increase; your fear of civil penalties for illegal intruders will become a thing of the past.
As such, businesses who may be affected by the migrant issues are invited to review the consultation document and respond with constructive views to assist in the reform.  If the industry stays silent on these issues, it would be missing a valuable opportunity to work at improving the systems of UK Border Force. It may come to haunt you should your drivers be found with clandestine entrants on board.  If you wish to discuss the impact of the code of practice or the consultation further, please do not hesitate to contact us on 01254 828 300.

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