Avoiding hefty fines for clandestine entrants

30 August

On 13 February 2023 the fines for clandestine entrants increased to £10,000 per clandestine found on the vehicle. Both the operator and the driver can be fined up to £10,000, making the maximum penalty £20,000 per clandestine entrant.

The new fines have started to trickle through and have increased substantially. We have seen circumstances where operators have been fined £24,000.00 for just three clandestine entrants on their vehicle.

What can you do to avoid fines?

The starting point in calculation of the fine is the maximum level of penalty for carrying clandestine entrants, to determine the responsible parties liability and applying a discount where appropriate.

When determining the first discount, Border Force considers whether the operator is part of the Civil Penalty Accreditation Scheme (“the Scheme”). If the operator is part of the Scheme, any fine is reduced by 50%

This is a significant reduction. In the example provided above, the operator would have received no fine had they been part of the Scheme and fully complaint with the Carriers Liability Regulations (below)

The Scheme has no joining fee, but we recommend you obtain legal guidance before making an application and providing the relevant evidence.

The second discount applied (up to 50%) is operator compliance with the Carriers Liability (Amendment) Regulation 2023 (“the 2023 Regulations”)

Following the amendment to the 2023 Regulations, Border Force are considering the following factors when deciding on the level of fine. Each of the below points is considered to assess whether it has been complied with when considering the level of fine that should be issued, or whether it should be issued at all.

Factors considered by Border Force when issuing fines

1. Before a journey, the driver must ensure that where the vehicle has a load space that is enclosed (wholly or partly) by an outer shell or by a fabric cover, all cuts, tears or other damage in the outer shell or fabric exceeding 25cm in lengths are repaired to a standard sufficient to prevent unauthorised entry.
2. The driver must ensure that the standard checks are performed before a journey.
3. The driver must ensure that all locks and other security devices are in good working order.
4. The driver must ensure that all locks and other security devices are used appropriately and with reasonable care during the journey.
5. The driver must, during each occasion the vehicle is parked during a journey, perform the standard checks.
6. Where, at any point during a journey before the goods vehicle enters the United Kingdom, a person responsible for the goods vehicle knows or has reason to believe that a means of entry to the vehicle’s load space has been opened, that person must ensure that the standard checks are performed.
7. Where, at any point during a journey before the goods vehicle enters the United Kingdom, a new driver becomes responsible for the goods vehicle, the new driver must perform the standard checks.
8. As soon as practicable before the goods vehicle reaches immigration control, the driver must perform the standard checks.
9. A person responsible for the goods vehicle who knows or has reasonable cause to suspect that a relevant event has occurred must, as soon as reasonably possible afterwards and before reaching immigration control, report their knowledge or suspicion to the police force of the country or territory in which the driver is located.
10. At the earliest opportunity upon arrival at immigration control, the person must report to an immigration officer any knowledge or suspicion that a person gained unauthorised access to the goods vehicle during the journey; any damage to the vehicle that, in the reasonable opinion of the driver, may have been caused by a person gaining, or attempting to gain, unauthorised access to the vehicle; and any signs of tampering or damage to, or unauthorised repair or replacement of, any lock, seal or other security device present on the goods vehicle.
11. The responsible person must not take the vehicle to a relevant place, or onto any relevant transporter, if, at any point prior to arriving at the relevant place or going onto the relevant transporter, the person has knowledge or suspicion that a person gained unauthorised access to the vehicle; and remains in the vehicle.
12. As soon as practicable afterwards, the driver must record in writing that they have ensured that the actions have been taken; and any signs noted by the driver that a person has gained, or attempted to gain, unauthorised access to the goods vehicle.
13. Before a journey, the persons responsible for the goods vehicle must ensure that all numbers used for seals on the vehicle are recorded in writing.
14. Where a seal used on the goods vehicle is broken or replaced, the persons responsible for the goods vehicle must, as soon as practicable afterwards, ensure that the following information is recorded in writing: the number of the broken seal; the number of the replacement seal; the time and date on which the seal was broken (if known); the time and date on which the replacement seal was installed; where it has been reported to an immigration officer that a seal on the goods vehicle has been broken, the time and date on which it was reported.
15. Where a person responsible for the goods vehicle ensures an action has been taken by a third party, the responsible person must take all reasonable steps to include with the written record any evidence to that effect.
16. The evidence may take the form of an endorsement by the third party on the record that they took the action in question.
17. The driver must ensure that a copy of the written records and any relevant evidence are kept with the goods vehicle.

If you received a fine, you will receive an IS11 form which shows the amount of the fine along with how the above points have been assessed to be complied with. This fine needs to be paid within 60 days of the form’s issue date. You have the right to object to the fine however, this must be done within 28 days.

Steps to take

If you are an operator who carries out international journeys, you may benefit from being a member of the Scheme as it may reduce the fines by thousands or eliminate it completely (subject to compliance with the 2023 Regulations). Becoming accredited will not only assist operators in reducing the potential for clandestine entrants to be found on a vehicle, but also increase the protection for drivers operating the vehicles across borders.

Backhouse Jones can, for a fixed fee, review the operator’s current systems to prevent clandestine entrants, offer guidance on how to improve these systems to the standard expected by Border Force and help operators to complete the application form to become accredited.

We can also assist in the preparation of an objection to a fine.

Should you require any assistance with the application for the scheme or objecting a fine, contact one of our Dispute Resolution team on 01254 828 300 or disputeresolution@backhouses.co.uk.