Recent Changes to Civil Penalties for Clandestine Entrants

Change 1 – Increase in Maximum Penalty

1. The UK Secretary of State (Minister) for the Home Department can impose ‘Civil Penalties’ on a ‘relevant person’, that is, the owner, hirer, and driver of a vehicle in which there is found hidden ‘clandestine entrants’ (illegals).

• The maximum penalty which may be imposed was previously set at £2,000 per clandestine entrants’, per responsible person but, because the owner or hirer of a relevant vehicle is jointly liable for their driver’s penalty, liability extends to up to £4,000 per clandestine entrant. Of course, these figures are maxima: in reality penalties of between £400 and £1,200 per clandestine entrants are the norm, the level of penalty being determined by the presence or absence of systems for security, checking, and prevention. Given that we regularly see penalties imposed in respect of between 6 and 10 clandestine entrants in a vehicle, penalties have been of the order of £4,000 to £12,000 being imposed (£8,000 to £24,000 total joint liability).

• Recently, the Government increased the maximum penalty to £10,000 per clandestine entrant, making a total liability for the owner or hirer of a vehicle £20,000 per clandestine entrant. Whilst we do not expect the Secretary of State to impose maximum penalties except in very rare circumstances, the fact that the maxima have increased by a factor of 5 rather suggests that the actual impositions will see a similar increase – thus we can now expect to see penalties of the order of perhaps £2,000 to £6,000 per clandestine entrant or, based on our experience of numbers of clandestine entrants, £10,000 to £60,000 per case (£20,000 to £120,000 total joint liability).  

• It is a defence to these penalties to show that the owner of a relevant vehicle had in place an effective system for preventing clandestine entrants from entering a vehicle. It must also be shown that, on the day the clandestine entrants were discovered, that system was in use. The UK Home Office publishes a Code of Practice setting out what they say is an effective system.

• Separately, the Home Secretary (through UK Border Force) has a residual discretion NOT to impose penalties even if the defence is not made out.

• There is a 3-stage Appeals process against these penalties, consisting of a Notice of Objection; appeal to the County Court; and in appropriate cases, appeal to the Court of Appeal.

Change 2 – Penalty for Failure to Secure Goods Vehicle

• This is a completely new requirement: the Secretary of State may now impose a penalty on a responsible person where, (a) a vehicle is not adequately secured against access by clandestine entrants; or (b), where a responsible person has not taken the actions set out in the new law. Those actions including the securing and checking of vehicles en route to the UK, and the keeping of records steps taken to secure and check vehicles. These penalties may be imposed even where no clandestine entrants are discovered in a vehicle.

• The maximum penalty for breaching these new regulations is £6,000  per responsible person, maximum £12,000.

• Again, there is a defence and appeal process, very similar to that set out in paragraphs 4 and 6 above.

Simon Clarke of SBC recently successfully conducted 6 conjoined appeals in the Court of Appeal this now being the leading case on the point.

If you have any issues involving clandestine entrants affecting your operation then get in touch with our lawyers for a free initial consultation