The migration crisis at the ports and borders
According to Home Office figures, during the financial year 2021-2022, there were 3,838 incidents where clandestine entrants were detected concealed in vehicles. Even during the Covid-19 pandemic when there was a lower volume of traffic, there were still 3145 incidents recorded during 2020-2021.
Despite recent figures being considerably low compared to statistics in 2014 (where there were 11,920 attempts to enter the UK clandestinely), the Government is concerned that the Clandestine Entrant Civil Penalty Scheme is not having enough of an effect, accusing drivers of not taking the necessary steps required to secure vehicles. It is for this reason, that the Government has decided to 'review and overhaul' the current Scheme.
The Government will be introducing a new 'Nationality and Borders Act 2022' following a public consultation taking place this year.
The consequence for vehicles found to be carrying clandestine entrants
A HGV driver and his employer can each receive a penalty of up to £2,000 for each clandestine entrant found in the vehicle. The vehicle could also be detained if there are outstanding fines or the UK Border Force (UKBF) is concerned that the fine will not be paid on time.
As a company is jointly and severally liable for its drivers’ fines, operators could be exposed to a penalty of £4,000 per clandestine entrant.
Take preventative measures
To reduce exposure to fines, vehicle operators must take active steps by having effective systems in place to prevent people hiding in or on their vehicles.
Operators should:
- Implement a clear system to prevent people hiding in and on their vehicles.
- Produce a clandestine entrant policy including clear written instructions on the system.
- Provide handbooks to drivers enclosing the clandestine entrant policy and UKBF guidance.
- Provide drivers with security equipment to secure their vehicle, load and load space.
- Provide adequate ongoing training to all drivers on how to prevent clandestine entrants and the application of security devices on vehicles.
- Provide all drivers with vehicle security checklists for drivers to record the checks that they have carried out to prevent clandestine entrants.
- Monitor drivers’ compliance with the clandestine entrant’s policy. Failure to comply with the clandestine entrant’s policy by drivers should lead to disciplinary action.
DWF’s Regulatory Team recommends operators join the UK Border Agency’s free accreditation scheme. The scheme is open to operators of any size or nationality who undertake journeys between mainland Europe and the United Kingdom. To qualify, an operator must show that it has an effective system to prevent it carrying clandestine entrants. It must also show that it takes all reasonable steps to ensure the system operates properly.
If an operator is accepted onto the scheme and clandestine entrants are subsequently discovered in its vehicles, a civil penalty will not be imposed if the operator is found to be operating in accordance with the scheme.
10 Steps to an effective system for drivers
The Home Office recommends that drivers follow a 10 step guide to avoid a penalty (https://www.gov.uk/government/publications/civil-penalty-code-of-practice-prevention-of-clandestine-entrants).
Conclusion
The risk to operators of clandestine entrants is one that is on the rise. With a potential fine for companies of £4k per entrant and entrants willing to risk their lives to enter the UK; both companies and drivers need to ensure they are complying with effective systems to minimise risk.
DWF’s Regulatory Team can:
- Provide advice on preventative steps to protect your business.
- Advise businesses on applying to the UK Border Force’s Accreditation Scheme.
- Help with all aspects of objecting, appealing and reducing a penalty against you or your driver.
For further information please contact Joanne Witheford or Vikki Woodfine.
Written by Zara Salmon, Joanne Witheford and Vikki Woodfine.
