Changes going forward?
The law surrounding clandestine entrants and the issue of civil penalty notices has been subject to a significant degree of scrutiny over the years.
In 2002, our lawyers were involved in Court of Appeal litigation, which saw the penalty regime for the discovery of clandestine entrants declared as incompatible with Article 6 of the European Convention of Human Rights. Following the court’s decision that the regime violated the right to a fair trial, the government introduced the more flexible system of variable penalties and a statutory right of appeal.
More recently, there have been an increasing number of challenges to the applicability of the Code of Practice, along with questions as to whether it reflects current best practice in the haulage industry. In a case involving a Dutch haulier, the Court took account of the use of real-time technology to check for clandestine entrants in a vehicle, making clear that the Code of Practice was only one factor for the Secretary of State to consider – with other systems of equal importance.
In January 2014, the Home Office set out its proposal for a formal public consultation on the Code of Practice. In its ‘development of consultation proposal’ discussion, the Home Office expressed concern that the number of stowaways seeking to enter the UK is escalating and emphasized the need for revisions to maintain border security. While there are no current plans to revise the relevant sections of the Immigration and Asylum Act 1999, there are plans to review the terms of the Code of Practice to reflect advances in transport technology. There are proposals to increase the maximum level of the fine for each individual found and to potentially introduce a new pay structure, taking account of persistent offenders and concessions for speedy payment of fines.
The law as it stands remains good, with the consultations ongoing. However, if you have any questions or require any assistance regarding the transport laws concerning clandestine entrants, contact our specialist transport law solicitors on 0800 046 3066 or visit the road transport law website.