It is prescribed under Section 32 of the Immigration and Asylum Act 1999 that anyone responsible for bringing clandestine entrants (illegal migrants hiding in their vehicles) to the UK may be liable for a civil penalty.
Penalties can be issued to everyone involved, including both the driver and the company – in fact, multiple penalties can be issued if there is more than one director of the company.
The purpose of this penalty is to try and ensure that road hauliers take reasonable preventative measures to ensure that clandestine entrants do not gain access to the vehicle in order to circumvent border control. However, there are numerous situations where, even if the company and driver have done everything in their power to secure the vehicles, they have still been slapped with a penalty notice – this has even been the case when the drivers themselves have reported the clandestine entrants to the correct authorities!
Under section 34(3) of the 1999 Act, where it is alleged a person is liable to a penalty under section 32 of that Act for bringing a clandestine entrant to the United Kingdom, it is a defence to show that:
- He did not know and had no reasonable grounds for suspecting that a clandestine entrant was, or might be, concealed in the transporter;
- There was an effective system in operation in relation to the transporter to prevent the carriage of clandestine entrants; and
- On the occasion concerned, the person or persons responsible for operating that system did so properly.
As a result of around 56,000 detected clandestine entrants throughout 2016, both the UK and France reaffirmed their commitment to increasing security measures. All freight vehicles are now screened for hidden individuals and contraband goods both physically and using the latest technologies to ensure that stowaways, many of whom are well concealed, are discovered. An effective system will assist in preventing clandestine entrants from gaining entry in the first place however it will also afford you a defence in the event that a stowaway goes undiscovered.
Some steps to follow to ensure that a system is in place are:
- Ensure that written check lists are issued and completed.
- Watch closely when the vehicle is being loaded.
- Check the fabric of the vehicle and note any damage.
- Lock the doors and secure with a padlock for hard-sided vehicles. Apply a good quality tilt cord and secure with a robust padlock for soft-sided vehicles.
- Check the panniers, wind deflectors and axles.
- Repeat these steps after loading and after every stop. Always record these checks on your check list.
Have you or one of your drivers received a penalty notice that you dispute or think particularly harsh? Contact our leading transport solicitors today on 0115 910 6239 if you need assistance with:
- Implementing an ‘effective’ system for the prevention of clandestine entrants.
- Responding to Notices of Liability.
- Preparing notices of objection if you or your driver has received a civil penalty.
- An appeal to the County Court against any civil penalties already imposed.