The media is often full of immigration stories just as locations in Europe from Kos to Calais are full of would be migrants. By the time lorry drivers and our haulage industry have contact with them, the law calls the same people “would be clandestine entrants”. But lorry drivers also have rights. They have the right to do their job for their hauliers and on behalf of the customers without interference and without physical threats.
Clandestine entrants, of course, have rights as well. Many will be victims of persecution though some will be economic migrants only. Some of them will be criminals. All are desperate to gain admittance to the UK.
The classic difficulty that lorry drivers in the UK find is that having arrived in the UK and driving on UK roads they then hear something from deep inside their trailer which suggests that they have clandestine entrants on board.
Should the driver deliver his vehicle to the Police or UK Border Agency, voice his suspicions and let the authorities “open the box”?
The driver’s involvement in bringing the legal immigrants then comes under scrutiny.
If he delivers them up to the authorities, that might be strong evidence that he is not knowingly part of an illegal scheme.
The driver and haulier will face heavy civil penalties unless they can prove they have the statutory defence. They will have to prove the defence against Civil Penalties under s34 of the Immigration and Asylum Act 1999 in order to stand a chance of avoiding the penalty. If they cannot, they face penalties of up to £2,000.00 each per stowaway.
The stakes are high. The Civil Penalties may be the least of the driver’s worries. He will be concerned that having brought clandestine entrants into the UK that the Police/UK Border Force think he is criminally complicit with them and perhaps being paid by them. It is perhaps understandable that a driver faced with the suspicion he has clandestine entrants on board is reluctant to go to the authorities. UK Border Force have a tough job and are under specially close scrutiny at present. The driver will fear that they are suspicious of him and at the very least unsympathetic to the dilemma he has found himself in.
The driver is likely to fear personal arrest and criminal charges of being complicit in bringing in clandestines. With these worries and concerns, he may feel tempted to find a quiet location at which to open the doors and let his passengers walk away on the basis this is the option least likely to cause him trouble.
The Code of Practice under the Act (“the Code”) addresses a situation where the driver forms a suspicion that he has clandestines on board prior to embarkation to the UK. Unfortunately, the Code is less explicit when it comes to situations where the driver suspects he has clandestines aboard and has already arrived in the UK. For guidance in this regard, the driver will have to turn to the government website.
Whilst there is guidance on the government website, a large part of this guidance is to remain in the cab of the vehicle and alert the authorities, an option already identified as being unattractive to the driver in this situation.
The driver and the haulier have to prove 3 things if they are to avoid a civil penalty under The Immigration and Asylum Act 1999 (“the Act”). This criteria is outlined in Law at Section 34(3) of the Act, however the Code sets out good practice which assists in proving the defence.
A further problem for the driver is that he cannot imprison the people once he is aware that they are in his vehicle. In the end it is the driver’s decision as to what he is going to do. The driver has a balance a moral imperative to go to the authorities against a moral and legal duty not to imprison his passengers once he know they are aboard and wish to get out. Once he knows they are there the driver may well have some duty to ensure that they are not in danger. The sensible advice to the driver would be to go to the authorities. The driver, of course, finds himself in an impossible dilemma for the reasons already stated.
The Code ignores the dilemma. It is desirable that the Code gives specific advice as to what a driver should in these circumstances. The Code by ignoring the dilemma does not even acknowledge that the situation exists. It would be possible for the Code to acknowledge the dilemma and for instance to indicate that the Civil Penalties, if they applied because a driver could not prove the defence, would be capped at a lower level in cases where a driver went to the authorities.
This of course would have to be in a situation where the authorities were satisfied that the driver was not complicit in the importation of his passengers in the first place.
In the absence of such comfort, drivers will remain in a dilemma and will make up their minds as to what to do on a case by case basis.
The absence of guidance from the Government for a driver in this dilemma deserves addressing – The Code, by ignoring the dilemma, does not acknowledge the situation exists. Of course at the time when the driver has to make a decision having formed the suspicion that he has clandestines on board will be without the benefit of legal advice.
In the meantime, the number of migrants in the Pas de Calais increases and the politicians wrestle with the situation across Europe.
For further information, please contact the regulatory team on 01254 828300.