People smuggling in vehicles: 500% penalty increase and new goods vehicle insecurity offence

Drivers, owners, operators and hirers must be aware of significant changes to the rules relating to their liability when their vehicle is carrying clandestine entrants to the UK.

With effect from 13 February 2023, major changes have been introduced through the Carriers’ Liability (Amendment) Regulations 2023 (‘the Regulations’), including:

• a new penalty for failing to adequately secure a vehicle against unauthorised access (max £6,000 per owner, hirer or driver per incident; max aggregate £12,000 for all of them)
• increase in penalties for carrying a clandestine entrant:
  • increase by 500% from £2,000 to £10,000 per entrant per owner/hirer/driver
  • increase in maximum aggregate fine by 500% from £4,000 to £20,000 per clandestine entrant.

This represents a huge increase in the penalties payable and means:

• far larger sums now payable where entrants are concealed within a vehicle
• the need for all businesses to revisit their policies and procedures to avoid penalties
• it may be more necessary, viable and financially sensible to seek reviews of penalties and pursue appeals.

It should be noted that the driver and the owner (or hirer) of the vehicle are jointly and severally liable for the penalty imposed on the driver. So, if the driver does not pay, the employer is liable for that penalty as well as their own.

Why increase penalties for clandestine entrants?

The number of reported incidents of detected clandestine entrants arriving in the UK, by concealment within a goods vehicle to avoid UK Border Force, has increased in recent years from 3,145 in 2021 to 3,838 in 2022.

The government has responded to this surge by increasing the penalties for drivers, owners and hirers (i.e. known as the ‘responsible person’) of goods vehicles who are found to have inadequately secured their vehicles against entry or have been found to be carrying a clandestine entrant into the UK.

It is intended to encourage better compliance.

Is this fair on operators and drivers?

This reignites the question of whether hauliers and their drivers should be treated in this way, not least when there is such a huge increase in penalties. The International Road Union (IRU) has stated:

“These changes are misguided and do not target the root causes of clandestine entrants…..

Huge increases in penalties, combined with the suppression of the presumption of innocence for truck drivers and transport operators will deter even more transport firms from running these crucial freight routes across the English Channel, without providing a solution to the clandestine immigration challenge. This will increase transport costs, risks, delays and instability for supply chains…..

Solutions need to address the causes of the problem and not just assume that haulage firms and drivers are to blame. We should rather be encouraging road transport companies that have invested in adequate security measures for their drivers, vehicles and operations.”

Defences and review/appeals

The regulations provide a statutory defence for both of these offences if the responsible person (the owner/hirer/driver) was acting under duress. This will probably normally be relied on by a driver being forced to transport concealed lorry occupants under threats.

The Regulations set out explicit detail to assist drivers in correctly securing a goods vehicle, such as defects to look for in the vehicle, performance of regular checks on the vehicle, reporting unauthorised access and, crucially, thorough record-keeping. The Scheme also provides ‘Guidance on preventing clandestine entry’ as well as a Vehicle Security Checklist for road transport companies and drivers that can be found on the government website.

The Regulations set out in detail how a person can be eligible for a reduced penalty when they carry someone concealed in their lorry (or other types of vehicle).

The Level of Penalty: Code of Practice offers a discount of 50% to the starting point level of penalty if the responsible person is a member of the Civil Penalty Accreditation Scheme (which can be applied for online), as well as a further 50% discount should it transpire that the responsible person was not the driver and was not present during the vehicle’s journey to the UK.

Pre-journey and in-journey vehicle checks

In short, the following must be checked pre-journey and during the journey on every occasion when the vehicle is parked:

• use of a unique seal
• vehicle is equipped with TIR cable/strap in good working order
• no cuts, tears, or damage exceeding 25cm to outer shell or fabric cover of vehicle
• security against unauthorised entry to load spaces
• locks and security devices to be checked so as to be in good working order before journey, and to be used appropriately and with reasonable care during journeys
• where any load-space is opened, standard checks must be carried out
• any new/relief driver must carry out their own standard checks
• standard checks must be carried before the vehicle reaches immigration control
• any knowledge or suspicion of unlawful access to the vehicle, attempted access or suspected damage caused to a vehicle or signs of tampering, must be reported to an immigration officer
• vehicle cannot go to immigration control operated outside the UK or a train, ship etc. if the driver suspects a person has gained unauthorised access to the vehicle.

How we can help – objections and appeals

If you have received a fine, you have the right to object to this within 28 days, including objections based on inability to pay, through making a formal objection to Border Force. These huge hikes could lead to simply unaffordable fines being imposed against drivers, having regard to their annual income. It is likely that objections will surely rise.

Whether an objection is lodged with Border Force first, there is also the right of appeal in the County Court. However, it must be borne in mind that court costs rules apply and a failure to succeed may lead to an award of Border Force costs incurred in defending the appeal.

It is generally wise to first lodge an objection to the fines imposed and then appeal in the County Court if the fine is excessive or incorrectly imposed.

Ashtons Legal can offer advice and representation in your case and assist in helping you manage any penalties imposed by Border Force.

Contact our road transport solicitors today

If you require any advice with regard to Goods and Passenger Operator Licencing, including advice concerning DVSA Investigations, correspondence with the Office of The Traffic Commissioner or Traffic Commissioner Preliminary Hearing/Public Inquiry work, then please contact us using our online enquiry form or by calling 0330 404 7949.