Update on penalties for carrying clandestine entrants

10 September 2024

As most operators are well aware by now, if clandestine entrants are found on board your vehicle, both the company and the driver may be issued a fine of up to £10,000 each per clandestine entrant. Recent court decisions, such as the case of KLG Trucking, have left much uncertainty within the industry as to how vehicle operators can avoid fines, given there have been cases of drivers and companies being issued with fines despite working in full compliance with the Regulations.

We have seen operators frustrated by the way in which Border Force were issuing penalties as they did not appear to be taking into account key details when deciding to impose penalties on the company and driver. However, more recently, it seems as though Border Force are giving more thought to the circumstances surrounding incidents and using their discretion to not impose a penalty, or reducing the penalty accordingly, where operators can provide Border Force with justification for avoiding or reducing the penalty.

If clandestine entrants are found on your vehicle, Border Force will send out an “ISD11” letter, also known as a request for information, to both the company and the driver which will ask specific questions regarding the circumstances of the incident and the policies and procedures in place to prevent clandestine entry. Operators must ensure that they respond to this letter providing as much information and documentary evidence as possible. Border Force will then consider this information and decide whether to impose a penalty and, if so, how much that penalty will be. This is your first opportunity to put forward information that you want to be considered by Border Force when they decide whether to impose a penalty.

Backhouse Jones have had recent success in responding to the ISD11 letter with Border Force deciding no penalty shall be imposed, for either the operator or the driver, regarding an incident where 8 clandestine entrants were found on board a vehicle.

We have also dealt with an appeal recently where the operator had concerns regarding the driver’s safety if they were to ask that drivers open the rear doors of the vehicle to check the roof after every stop. This was after there had been reports of drivers being assaulted by clandestine entrants as they attempt to make their way to the UK. During the appeal hearing, the Court gave some helpful guidance on this point saying that if operators had health and safety concerns, they need to back this up with risk assessments and evidence of consideration of other methods that could be used to ensure compliance with the regulations before determining that something was unsafe and therefore could not be asked of drivers, as a blanket policy. If drivers do have genuine safety concerns about carrying out a specific check along their journey, for example because they are alone in a known hotspot, they must record the reasons for failing to carry out a specific check on their checklist. This is then something that Border Force can be asked to consider when deciding whether to impose a penalty.

The only way to guarantee that a fine will not be imposed on a company is to achieve full compliance with Regulations and be a member of the Clandestine Entrants Civil Penalty Accreditation Scheme (CPAS). Membership of CPAS means that, provided the approved system has been followed at the time of clandestine entrants being found, any fines imposed for clandestine entrants found on vehicles are automatically reduced by 50%. Unfortunately, there is no similar scheme for drivers but their fines can often be reduced significantly based on the financial means of the driver.

There is no fee for applying to become a member of CPAS but because applications take around 4-6 months to be approved, operators must ensure that their applications are properly completed, with the relevant evidence, to avoid lengthy delays in being approved.

Backhouse Jones offer fixed fees for responding to the ISD11 letter, Notice of Objections and assisting in applications for CPAS. Please get in touch with a member of the Dispute Resolution team here to discuss further.

This article was written by Ellie Keyon and Laila Khan.