Backhouse Jones successful in securing clandestine entrant fine reductions

09 April 2024

In February 2023 the fines imposed by Border Force for clandestine entrants being discovered on board an operator’s vehicle increased to £10,000 per clandestine found. Under these changes both the company and the driver can be fined £10,000 per clandestine increasing the maximum penalty to £20,000. See our previous article here.

Following an incident of clandestine being discovered and a penalty notice being issued, operators have the option to file a notice of objection opposing the fine. This includes demonstrating both the company and the driver have taken measures to secure the vehicle to prevent clandestine entrants gaining access in line with the Carriers Liability Regulations 2002 and the Carriers Liability (Amendment Regulations) 2023 (‘the Regulations’). Within this notice operators are also able to submit financial information for consideration in order to reduce any penalty upheld. This is pursuant to the Immigration and Asylum Act 1999 Level of Penalty Code of Practice.

Financial means testing applies to Small to Medium sized Enterprises (‘SME’) whose turnover totals less than 50 million euros annually. Various factors such as the company turnover and the total number of employees are considered when determining whether the level of penalty imposed is fair. Border Force are also able to consider a reduction in the driver’s penalty for such a notice. This takes into consideration the driver’s income, including any overtime, for three months prior to the incident and the secretary of state can also extend this to include the drivers own personal circumstances.

Having received instructed on various matters since the introduction of these new penalties our dispute resolution team, led by Libby Pritchard, has since received numerous reductions in operator fines for clandestine entrants. In one particular example, the fine imposed on the operator and its driver totalled a sum in the region of £48,000. The determination of notice received reduced the operators fine by 63% and further decreased the drivers fine by 93% after application of the means assessment.

The team also has a number of appeals ongoing where it is considered that the operator complied with the majority/all the Regulations so the fine should be extinguished. The Appeals are due to be heard in June.

Please contract our Dispute Resolution team here if you would like to discuss further.