New clandestine entrant appeal case: international transport operators may be puzzled

A new case relating to penalties imposed on operators, owners and drivers who carry concealed persons seeking to enter the UK illegally (clandestine entrants) will be a cause of concern to international road and passenger transport businesses.

In it, the Court of Appeal stated:

“…the mere fact that a vehicle owner has not been shown to have failed to comply” with the regulations does not provide “a good reason either for declining to impose any penalty or for imposing one at a lower level than indicated by the Penalty Code”.

This is KLG Trucking SRL v Secretary of State for the Home Department [2024] EWCA Civ 737 (02 July 2024).

Background to the case

There has been a clandestine entrant civil penalty scheme for some time. But, this was beefed up in February 2023 by a significant hike in the penalty that can be imposed against drivers, owners and operators where clandestine entrants are carried within their goods vehicles.

There was an increase from £2,000 to £10,000 per clandestine entrant.

Further, there had previously existed a defence – that there was in place a proper and defective system to prevent clandestine entrants being carried. However, that also disappeared.

Another change was that it does not now matter if any clandestine entrants are actually discovered in a vehicle of itself – a penalty can be imposed for inadequate security of the goods vehicle.

This leaves operators and drivers now being subject to penalties being imposed, despite deploying what may in fact be very good systems to avoid clandestine entrants getting into vehicles and being carried.

The reality of this is that Ashtons Legal has seen very substantially higher penalties being imposed, with a greater motivation to appeal against them. This is in comparison to the previous situation, where it might not have been as worthwhile incurring legal fees and being at risk at paying Border Force costs (in any County Court appeal).

KLG Trucking SRL v Secretary of State for the Home Department

The facts are very simple. Eight clandestine entrants were located in a company goods vehicle. Border Force alleged there had not been proper compliance with the requirement to keep anti-clandestine vehicle check records that was disputed. Penalties of £10,000 per entrant were imposed – a total of £80,000. (Border Force reduced this sum to a total of £36,000 or £4,500 per entrant.)

KLG Trucking SRL appealed. In clandestine entrant cases, there is a right of appeal to the County Court when the penalty is first imposed or if any administrative review of the penalty sought has been unsuccessful.

The appeal to the County Court failed. So, the matter was appealed to the Court of Appeal.

The Court found that it was not correct that the company had breached the regulations. The Court reduced the penalty by half.

But, whilst doing so, it also stated that “…the mere fact that a vehicle owner has not been shown to have failed to comply” with the regulations does not provide “a good reason either for declining to impose any penalty or for imposing one at a lower level than indicated by the Penalty Code”.

The amount of penalties is governed by the Penalty Code and penalties are imposed using the following starting points:

• No record of liability in the five years prior to the incident (if so, the starting point is £6,000 and otherwise it will be £10,000)
• 50% discount if there is membership of the Civil Penalty Accreditation Scheme
• An additional 50% discount could be a penalty starting point if they are the driver and be complied with the regulations or, in the case of an operator, they acted to ensure compliance with the regulations.

However, under this regime, these are reductions. Accordingly, there can be full compliance and yet there is no right to a zero penalty.

The law is as currently drafted – its obvious unfairness is that operators and drivers can deploy avoidance systems of the highest standard and yet this may be insufficient. Penalties may be reduced but are still capable of being imposed if there are stowaways despite best endeavours. In such circumstances, it is not unreasonable to state that operators and drivers pay the penalty for being victims in such cases, often where highly sophisticated methods are used to gain entry to vehicles.

Ashtons Legal assists clients in various such cases and is happy to assist any international road transport operators needing help and representation.

Typically, a case will start with an application to Border Force to review the penalties initially imposed on the operator and driver. If the penalties are not reduced at all or insufficiently, the matter then proceeds to the County Court. At that point, there are costs implications: if the appeal fails as those appealing may be ordered to pay Border Force’s costs of defending the appeal.

Contact our road transport solicitors today

If you require any advice, assistance and representation in such cases then please get in touch with us. In such cases, it is always best if very early advice is taken.

If you require advice and assistance concerning any investigation carried out by DVSA and/or advice concerning operator licensing (including Traffic Commissioner Public Inquiry and preliminary hearing matters), please contact us using our online enquiry form or by calling 0330 404 7949.