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:
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.
Checks and security
For HGVs, at the time of final loading, the operator or driver of the vehicle must check it to ensure that there are no unauthorised persons on the vehicle and it must then be locked, sealed or otherwise made secure. If someone else is conducting the checks, operators must obtain written confirmation from that person that the checks have been properly conducted and that there were no unauthorised persons present on the vehicle.
Operators and/or drivers should make a note. Any tilt cords and straps that are used must be undamaged, pass through all fastening points, made taut and secured. Spare security devices should be carried on the vehicle.
Any seals used must be distinguished by a number from a series that is unique to the operator or driver and must be recorded in documentation on the vehicle. This is so that the number can be checked to ensure that seals have not been removed and replaced by an unauthorised person.
For PCVs, the vehicle must be kept locked when unattended and any compartments must be kept locked when not being accessed to prevent any unauthorised entry. The operator or driver must supervise when passengers are boarding or alighting and when items are being loaded or unloaded to ensure that no unauthorised persons gain entry to the vehicle.
If the operator or driver suspects that someone may have entered the vehicle, they must contact the local authority, police or border force.
Driver Training
As part of an effective system and in order to be satisfied that the Code will be complied with by their drivers, operators must provide driver training on how to prevent clandestine entrants. Operators should develop a checklist that drivers can use during their journey to ensure that they have performed the required checks.
Drivers should be made aware that it is not just the operator who can be fined if a clandestine entrant is found onboard the vehicle and that individual drivers can also be liable to pay the £2,000 penalty per clandestine entrant. Drivers should be encouraged to personally check the vehicle and to supervise loading so that they can be satisfied that there are no unauthorised persons in the vehicle before it is secured. After every stop on the journey, drivers should carry out an additional check and note this down on the checklist.
Operators must regularly check that drivers are following their instructions and refresher training should be given periodically.
Border Force
Border Force have a Civil Penalty Accreditation Scheme (‘the Scheme’) for operators that are able to demonstrate that they have an effective system in place for preventing clandestine entrants. If a member of the Scheme is found with clandestine entrants on its vehicles, the member may avoid a fine provided that it can be shown that they were operating in accordance with the effective systems they have adopted.
Backhouse Jones frequently deal with operators that have incurred penalties as a result of clandestine entrants being found on their vehicles. Even with the uncertainty around Brexit, it is unlikely that the Scheme will be removed, therefore Backhouse Jones are now offering a package to help operators to become accredited. 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.
In the event that clandestine entrants are found on their vehicles whilst operating within the accredited scheme, the exposure to potential fines being imposed by Border Force is substantially reduced.
As part of the package, Backhouse Jones will 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. This service can be offered to operators from £999 + VAT or from £750 + VAT if we have filed a notice of objection to a penalty for your business in the last 12 months (less than half of the penalty for one clandestine entrant.)
For further information, please speak with a member from our Dispute Resolution Team (Libby Pritchard, Kelly Heyworth, James Lomax, Steven Meyerhoff) on 01254 828 300.