The penalties for road transport businesses and their drivers who fail to secure their vehicles, when entering the UK, and are discovered with a ‘clandestine entrant’ are up to £2,000 for each clandestine entrant carried.
Such a penalty will normally be issued to the vehicle’s driver and operator if not also the owner. This fine is also referred to as a ‘civil penalty’.
We can assist you in challenging such penalties by lodging objections and County Court appeals. Often the penalties imposed are higher than necessary and justified as Border Force have not been provided with sufficient information to fix an appropriate amount or indeed any amount at all.
A clandestine entrant is defined as a person who hides in or on a vehicle to avoid passing through UK border control.
You and your driver may be fined if there is no effective system to secure your vehicle and prevent such occurrences. This also applies if such a system isn’t actually used properly.
An effective system for a business includes:
- a policy, in writing, for drivers on how to use the system
- effective security devices to ensure the vehicle, load and load space are secure
- regular training for drivers on use of the system and such security devices
- providing vehicle security checklists to drivers and ensuring they are completed
- ensuring that drivers are following such instructions, with disciplinary action for those who fail to comply.
Border Force has produced a Code of Practice to prevent clandestine entrants. It is recommended that all businesses and operators become familiar with its contents.
Similarly we recommend that any transport company joins the Home Office civil penalty accreditation scheme. It was set up to reduce the risk of receiving fines by ensuring that companies have effective systems to reduce clandestine entrants.
If you are a member of the scheme and clandestine entrants are discovered in your vehicles, your business will not be fined as owner or hirer of the vehicle as long as you are operating in accordance with the scheme.
For your drivers, an effective system includes:
- the provision and use of security devices (e.g. a padlock, seals and tilt cord) to secure vehicles after loading
- ensuring that they are checking the security devices and vehicle thoroughly after each stop and before entering the UK
- proper recording of the checks performed on a vehicle checklist.
Again Border Force has produced a guide for drivers on steps of how to avoid such penalties.
Individual drivers cannot join the civil penalty accreditation scheme, and still may be fined even if their employer is in the scheme.
If an individual is found in a vehicle upon arrival in the UK, the police will take the driver’s details, your company’s details, and tell Border Force about the clandestine entrants. You and your driver may receive letters from the Border Force clandestine entrant civil penalty team, seeking information about the security system in place on that day. This will be used to decide who will be fined, and by how much.
Equally the authorities may seek to interview a driver regarding the security system employed if clandestine entrants are found in your vehicle at a UK border control, at a port in the UK or anywhere in Europe.
They have the right to refuse to be interviewed and leave at any stage. Your company and the vehicle’s owner or hirer may also be asked for information. They too have the right to refuse to supply such information. We recommend you seek early advice as to how to respond.
The information you do supply will be used to help decide who will be fined, and by how much. If you are fined you will receive a form (“IS11”) detailing the level of the fine and when it must paid by. You have the right to object to such a fine through an administrative appeal, but must do so within 28 days.
A further alternative avenue of appeal is available directly to the County Court (using a Form 161), or after the administrative appeal but again this must be within 28 days of:
- the issue date on your ‘Form IS11’ if you haven’t objected to the fine
- the date of the outcome of your objection, where you have objected to the fine.
Finally it is possible a vehicle may be detained because of:
- unpaid fines
- concern that a business or individual won’t pay a fine on time.
Negotiation with the Civil Penalty Unit as to why the vehicle has been seized will be required. This may include the payment of outstanding fines, plus the costs of the detention.
If you are unsure as to whether we are able to assist, please contact one of our specialist lawyers by completing our online form.