Clandestine Entrants

Sadly, it’s an all too familiar sight, watching the news and hearing report on the increasing numbers of clandestine entrants attempting to gain access to the UK.  However, have you ever wondered about the implications of clandestine entrants for both the driver of a vehicle and the operator?  Our dispute resolution team explores the issues and highlights audit prevention measures that your business can take out in order to limit the risks.

By way of background, a clandestine entrant is someone who has arrived in the UK concealed in a vehicle, ship or aircraft or someone who has passed, or attempted to pass, through UK immigration control concealed in a vehicle. The operator of a vehicle found to have been used to conceal a clandestine entrant, and the driver of that vehicle, are likely to be guilty of an offence, regardless of whether they knew that the clandestine entrant was in the vehicle, and can be fined up to £2,000 for each clandestine entrant.  Fines are imposed on both the company and the driver with the company being jointly and severally liable for the driver’s penalty.

If a clandestine entrant is found in a vehicle, there are only two defences available to the operator/driver of that vehicle. The first is if the operator and/or driver of the vehicle that was used to conceal the clandestine entrant was acting under duress. Secondly, there will be a defence if it can be shown that all of the following have been satisfied:

1. The operator/driver did not know and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the vehicle;
2. An effective system for preventing the carriage of clandestine entrants was in operation in relation to the transporter; and
3. That on the occasion in question, the person or persons responsible for operating that system did so properly.

Therefore, in order to have a defence in the event that a clandestine entrant is found in one of their vehicles, operators must ensure that they have an effective system in place.

Documentation

Operators of both HGVs and PCVs that are entering the UK must ensure that their vehicles carry a document that details the system in place to prevent clandestine entrants arriving on their vehicles so that it can be produced to an immigration officer on demand, if needed.

A report detailing the checks that have been carried out must also be carried on the vehicle. If possible, this report should be endorsed by a third party who has witnessed the checks being carried out or who has completed the checks themselves. An endorsed report will have more evidential value in the event that a clandestine entrant is found onboard a vehicle.

Even if an operator contracts with someone else to carry out the required checks of the vehicle, the operator and/or driver will still remain liable in the event that an unauthorised person is found onboard the vehicle. It is therefore important that operators can be satisfied that the checks are being performed correctly.