Clandestine Entrants – an effective system does not mean complete compliance with the guidance

A clandestine entrant is an individual who in order to escape border controls, enters the UK concealed within a vehicle. In order to prevent this it is imperative that vehicle operators undertaking international travel have effective systems in place to avoid clandestine entrants gaining access to their vehicles.  As failure to comply with these rules can lead to both the driver and operator facing a penalty of £2,000 per clandestine entrant which can be financially crippling for an operator.

The code of practice for operators to prevent carriage of clandestine entrants is known as the Prevention Code and this sets out the system an operator must have in place to prevent clandestine entrants entering their vehicles. This also provides the basis for a defence to a penalty where the following can be evidenced:

• They did not know or have reasonable grounds to suspect that a clandestine entrant was concealed in the vehicle.
• They had an effective system in place to prevent the entry of clandestine entrants.
• The individual responsible for operating the system did so properly.

Recent case law

On 02 December 2021, three appeals were heard Nottingham County Court on the decision to impose penalties. In these appeal hearings it was reviewed whether a system can still be effective where there is not complete compliance with the guidance.

How much evidence is enough?

It is a basic requirement that a defendant can provide proof that an “effective” system for preventing the carriage of the clandestine entrant is in place. The reason for this is that “effective” does not mean an “infallible” system, in fact in practice it may be impossible to achieve an infallible system. Therefore, judges will look to evidence that if the system was operated in the manner evidenced by the operator/driver, it is more likely than not to prevent the carriage of clandestine entrants.

The Prevention Code sets out guidance on how to run an effective system, outlining how instruction, assessment and monitoring can all be integral parts of the running of such a system. However, while this is the case, the main point that the judges highlighted in reviewing the judgments is that the Prevention Code is not prescriptive, it is advisory and that the drivers/operator’s compliance with the guidance will be assessed as appropriate on the facts of the individual case.

This is a key point as it is common for penalties to be imposed if a system is not fully compliant with the Prevention Code despite it being arguable that the system in place is as effective.

Further key points from the Judgment

• it was noted that these checklists do not have to be electronic, contrary to popular belief. While it may be more helpful for these to be electronic in practice as it is harder to lose a shared electronic file, a paper checklist will still meet the ultimate goal of evidencing and assisting your compliance with the Prevention Code.
• Another interesting point stated in the judgment in relation to checklists is that while the importance of producing a checklist immediately on demand and the significance of not producing such a document on demand can not be overstated. It was not accepted that the Prevention Code imposed a mandatory obligation upon the haulier to produce this document on demand if it could be shown at a later date that a checklist was completed contemporaneously to the adequate monitoring of the system.
• Practically if you are not able to produce the necessary documentation on demand from the immigration officer, it is likely that it will be inferred that you may have no effective system in place or that the system you have is not operated correctly. It is therefore recommended that drivers have possession of a checklist and fill this form in throughout their journey.  Written instructions to drivers from the company will also be expected to be produced on demand.

Conclusion

Whilst the Judgment evidences an approach that looks behind the black letter of the Prevention Code on balance it still suggests it is key to follow the Prevention Code and certainly ensure drivers are able to produce a checklist in the circumstance they are found to have clandestine entrants in the vehicle.

If you are in receipt of a penalty and consider it unfair please contact the dispute resolution team at Backhouse Jones on 01254 828300 to discuss further.