The document explains the reform of the Clandestine Entrant Civil Penalty Scheme and states why changes are required.
Finger pointed at lorry drivers for not securing their vehicles
On page one of the document, the Home Office refers to “lorry drivers not taking the steps required to secure vehicles” within the context of several thousands of clandestine entrants being reported over the last couple of years:
“During the financial year 2020-2021, there were 3,145 incidents where clandestine entrants were detected concealed in vehicles, despite the Covid19 pandemic causing a lower volume of traffic. This rose to 3,838 incidents during the financial year 2021-2022. The Government is therefore concerned that the Scheme is not having enough of an effect, as drivers are not taking the steps required to secure vehicles, and clandestine entrants are continuing to use these routes to enter the UK,” says the Home Office.
Stiffer penalties for drivers and hauliers
The document, as well as the draft bill itself, both state that stiffer penalties will be deployed in order to try and cut the number of clandestine entrants.
“Last year at least 4,000 migrants attempted to enter the UK in HGVs. We’re increasing the fine for bringing stowaways into the country from £2k to £10k per migrant. The penalties hadn’t changed for 20 years. We’re restoring deterrence to the system,” Robert Jenrick tweeted this morning.
Where the fines apply
The exact value of the fines will depend on numerous factors. In most cases, however, it will be impossible to avoid a fine for transporting migrants – even if the driver secured his/her vehicle and is unaware a stowaway is onboard.
This is stated clearly on page 3 of the aforementioned document:
“The statutory defences for carrying clandestine entrants are being narrowed. As set out above, it will no longer be a statutory defence to say that an effective system for preventing the carriage of clandestine entrants was in operation, and that person may still be issued with a penalty. The only statutory defence will be duress, which is to say that someone was forced to do the things that led to a penalty being issued. The only statutory defence to failing to adequately secure a goods vehicle will be duress.”
Photo credit: Hampshire Constabulary
Reductions are nonetheless possible when such action is taken.
“The changes under the 2022 Act include narrowing the statutory defences available to those who have carried a clandestine entrant. This means that where a clandestine entrant has been carried, it will no longer be a statutory defence to say that an effective system for preventing the carriage of clandestine entrants was in operation, and that person may still be issued with a penalty. However, if the person has complied with regulations to be issued by the Secretary of State, which will require them to take actions to secure their transporter, report unauthorised access and keep records to show they took these steps, this could mean the level of the penalty is reduced.”
How fines will be calculated
As for how the fines will be calculated, the relevant part of the Home Office document reads as follows:
“The maximum penalty for carrying clandestine entrants will be increased from £2,000 per responsible person per clandestine entrant to £6,000 for a first incident and £10,000 for a second or subsequent incident in the past five years. The maximum aggregate penalty per clandestine entrant will be increased from £4,000 to £12,000 for a first incident, and £20, 000 for a second or subsequent incident in the past five years.
The maximum penalty for failing to adequately secure a goods vehicle will be £1,500 per responsible person for a first incident, £3, 000 for a second in the past five years and £6, 000 for a third or subsequent incident in the past five years. The maximum aggregate penalty for a first incident will be £3,000, £6,000 for a second incident in the past five years and £12, 000 for a third or subsequent incident in the past five years.
By ‘maximum aggregate penalty’, we mean the maximum total penalty payable by all liable responsible persons per clandestine entrant.”
Reductions and means testing
The Home Office has also explained that reductions may apply in the following circumstances:
- 50% discount to the starting point level of penalty will be applied if the responsible person is a member of the Civil Penalty Accreditation Scheme.
- A further 50% discount will be applied to the starting point level of penalty if the responsible person is the driver, or another responsible person who was present during the vehicle or detached trailer’s journey to the United Kingdom, and they complied with the Regulations.
- A further 50% discount will be applied to the starting point level of penalty if the responsible person is not the driver and was not present during the vehicle or detached trailer’s journey to the United Kingdom, but they acted to ensure compliance with the Regulations.
Moreover, reductions to the level of penalty for failing to adequately secure a goods vehicle will be considered in the following circumstances:
- 50% discount will be applied if the responsible person is a member of the Civil Penalty Accreditation Scheme.
- A further 50% discount will be applied to the starting point level of penalty if the responsible person is not the driver and was not present during the vehicle or detached trailer’s journey to the United Kingdom, but they acted to ensure compliance with the Regulations.
Another factor that will determine the total value of fines is means testing.
The rules for that are described by the Home Office as follows for individuals:
“Means testing will take into account that individual’s income, including any overtime income, for the three months prior to the incident. The starting point for the reduction will be that the level of penalty will be no higher than their average monthly income for those three months. In determining the exact level of penalty, the Secretary of State will consider any representations made by the individual regarding their personal financial circumstances, such as their outgoings.”
When it comes to companies, the table below illustrates how the means testing shall work:
Photo credit: screenshot of Equality impact assessment: reform of the Clandestine Entrant Civil Penalty Scheme by the Home Office
Joint Liability
The draft bill from the Home Office makes it clear that drivers and vehicle owners/hirers are jointly liable:
“Where a penalty is imposed on a person who is the driver of a goods vehicle pursuant to a contract with the vehicle’s owner or hirer (whether or not a contract of employment), the driver and the owner or hirer are jointly and severally liable for the penalty imposed on the driver (whether or not a penalty is also imposed on the owner or hirer).”
Photo credit: Cheshire Police
When the new rules and fines apply
In a written statement to Parliament, Immigration Minister Robert Jenrick said:
“It is our intention, subject to the will of Parliament, for these reforms to take effect on Monday 13 February 2023.”
The same date is referred to in the draft bill.
How could new rules look like in practice?
To give hauliers and drivers an idea what to expect, the Home Office has produced some scenarios and explained how the law would be applied in each case.
The first two scenarios involve unsecured vehicles and are explained by the Home Office as follows:
Section 31A – Failing to secure a goods vehicle
Scenario 1: First incident for a driver, second incident for an owner, involving an HGV. The owner was not a member of the Accreditation Scheme.
The driver of an HGV arrived at the Port of Calais and was selected for security checks by Border Force. The vehicle was found to be unsecure as the rear doors of the trailer were not secured by a lock, seal or other security device. The driver had therefore not complied with the requirements laid out in the Regulations. This was the driver’s first instance of liability for failing to secure a goods vehicle.
The owner, as a responsible person, was also liable for a penalty. The owner had not ensured that the vehicle was equipped with locks or other security devices. This was the second instance of the owner attracting liability for failing to secure a goods vehicle. The owner was not a member of the Civil Penalty Accreditation Scheme.
There were no requests for means testing.
The driver receives a £1,500, penalty for a first incident, with no reduction in the penalty level. The owner receives a £3,000 penalty for a second incident, with no reduction in the penalty level, with additional joint liability of £1,500 for the driver’s penalty.
Scenario 2: First incident for an operator, involving an unaccompanied detached trailer.
The operator was a member of the Accreditation Scheme. A driver working for an operator which is a member of the Accreditation Scheme company delivered an unaccompanied detached trailer to the port of Santander. On arrival in the UK, the unaccompanied trailer was selected for security checks by Border Force. The trailer was found to have a broken TIR cord. It was therefore not effectively secured in compliance with the requirements laid out in the Regulations.
The operator provided a record of checks to Border Force, which showed that the vehicle was secure at the point at which it passed into the operational control of the port authorities in Santander. The record of checks was endorsed by the port authorities to show that it was a true reflection of the secure state of the trailer.
The driver is not liable for a penalty as drivers are not ‘responsible persons’ for the purposes of detached trailers.
The operator receives a £0 penalty, receiving a 50% reduction in their penalty level because they are a member of the Accreditation Scheme, and a further 50% reduction on the original penalty amount because they can show that they complied with the Regulations – the trailer was effectively secured at the time it left their operational control.
The third scenario related to goods transport regards clandestine entrants in a curtain-sided goods vehicle:
Section 32 – Carrying clandestine entrants
Scenario 1: Eight clandestine entrants were detected in a curtain-sided goods vehicle. The owner is a member of the Accredited Scheme.
A curtain-sided goods vehicle arrived at the Port of Portsmouth and was selected for checks by Border Force. These checks revealed eight clandestine entrants concealed in the load inside the trailer. There was a large cut to the roof of the trailer, and the record of checks completed by the driver did not state that the roof was checked before the journey began, nor that the driver checked the load space after the last two stops prior to embarking to the United Kingdom. The driver had therefore not complied with the requirements laid out in the Regulations. The driver had no previous liability to a penalty.
The owner, as a responsible person, is also liable for a penalty. However, the owner had ensured that the vehicle was equipped with locks or other security devices and had also complied with
all of the other applicable parts of the Regulations. The owner was also a member of the Accreditation Scheme.
The driver receives a £48,000 penalty (£6, 000 per clandestine entrant).
The driver requested means testing, which may further reduce this level of penalty, depending on their circumstances and the nature of the evidence they produce in support of their request.
The vehicle owner receives a £0 penalty, as they are accredited and fully complied with the requirements laid out in the regulations. They nevertheless remain joint and severally liable for the
driver’s penalty.
Had the vehicle owner not been accredited, they would have received a penalty of £24,000 (£3, 000 per clandestine entrant), as well as being held joint and severally liable for the driver’s penalty.
Photo: Smalljim, CC BY-SA 3.0, via Wikimedia Commons (image cropped)
