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If you are an operator whose vehicles are travelling back and forth to mainland Europe, one are currently of particular concern to you is the risk of clandestine entrants. This opens up a whole area of risk. Risk of course to the clandestine entrants, but also to you and your drivers in terms of safety and how to deal with situations which might arise.
Clandestine entrants, of course, have rights. Many will be victims of persecution though some will be economic migrants only. Some of them will be criminals. All are desperate to gain admittance to the UK. Your drivers have the right to do their job for their hauliers and on behalf of the customers without interference and without physical threats.
The classic difficulty that lorry drivers in the UK find is that having arrived in the UK and driving on UK roads they then hear something from deep inside their trailer which suggests that they have clandestine entrants on board.
Should the driver deliver his vehicle to the Police or UK Border Agency, voice his suspicions and let the authorities “open the box”?
The driver’s involvement in bringing the legal immigrants then comes under scrutiny.
If he delivers them up to the authorities, that might be strong evidence that he is not knowingly part of an illegal scheme.
The driver and haulier will face heavy civil penalties unless they can prove they have the statutory defence. They will have to prove the defence against Civil Penalties under s34 of the Immigration and Asylum Act 1999 in order to stand a chance of avoiding the penalty. If they cannot, they face penalties of up to £2,000.00 each per stowaway.
The stakes are high. The Civil Penalties may be the least of the driver’s worries. He will be concerned that having brought clandestine entrants into the UK that the Police/UK Border Force think he is criminally complicit with them and perhaps being paid by them. It is perhaps understandable that a driver faced with the suspicion he has clandestine entrants on board is reluctant to go to the authorities. UK Border Force have a tough job and are under specially close scrutiny at present. The driver will fear that they are suspicious of him and at the very least unsympathetic to the dilemma he has found himself in.
The driver is likely to fear personal arrest and criminal charges of being complicit in bringing in clandestines. With these worries and concerns, he may feel tempted to find a quiet location at which to open the doors and let his passengers walk away on the basis this is the option least likely to cause him trouble.
The Code of Practice under the Act (“the Code”) addresses a situation where the driver forms a suspicion that he has clandestines on board prior to embarkation to the UK. Unfortunately, the Code is less explicit when it comes to situations where the driver suspects he has clandestines aboard and has already arrived in the UK. For guidance in this regard, the driver will have to turn to the government website.
Whilst there is guidance on the government website, a large part of this guidance is to remain in the cab of the vehicle and alert the authorities, an option already identified as being unattractive to the driver in this situation.