In January 2023 the then Secretary of State for Immigration, Robert Jenrick made a statement to Parliament detailing the Government’s intentions to “crack down on illegal immigration….and to keep our borders safe and secure”.  Updating the Clandestine Entrant Civil Penalty Scheme (CECPS) was the focus of this intention.

The CECPS has been in place for over 20 years and was established to supplement the provisions of the Immigration and Asylum Act 1999. It is designed to complement law enforcement activity against criminals who smuggle people into the UK illegally, as well as to deter those who decide to try to enter the country without permission.  One of the key aspects of the scheme is to tackle “negligence by people who are not criminals but whose carelessness nonetheless means that they are responsible for a clandestine entrant gaining access to a vehicle”.

The Government ran a consultation on the effectiveness of the scheme in the summer of 2022 following evidence that in 2021-2022 there were nearly 4,000 incidents of clandestine entrants concealed in vehicles coming into the UK, up on the previous year’s numbers by 22%.  In April 2023 the guidance on the CECPS was updated with the key change being the amount an operator and/or driver can be fined by way of a ‘civil penalty’ increasing from a maximum of £2,000.00 per clandestine entrant found in their vehicle to £10,000.00 per clandestine entrant.  Given that both the operator and the driver of the vehicle that has been unlawfully entered into can be fined this top amount, that means that the bill for someone gaining access to a lorry (and it is usually lorries) is a whopping £20,000/entrant.  It should be noted that the operator is responsible for paying both its own fine and its driver’s fine, if the driver fails to pay, if a clandestine entrant is found to be in a vehicle entering or leaving the UK.

New Penalty for Inadequate Securing of a Vehicle

The April 2023 amendment to the scheme also saw a new penalty introduced for a goods vehicle that is “not adequately secured” even if no clandestine entrant is found on the vehicle.  The fine for that infraction is a maximum of £6,000.00 payable by the driver and the operator (making the total fine a maximum of £12,000.00 for each vehicle found to be inadequately secured) and is designed to ensure that all operators of goods vehicles going through UK borders are taking the need to deter the criminal people smuggler gangs very seriously.  The Carriers’ Liability (amendment) Regulations 2023 set out the legal requirements and security standards expected by UK Border Force for owners, operators, hirers and drivers to adhere to when securing a vehicle.

Mitigation against any Fines Received

With the Government taking a zero-tolerance view of clandestine entrants, the only defence allowed against paying a fine is one where the driver can be proved to have acted ‘out of duress’ in allowing the illegal immigrants access to the vehicle.  As most cases of clandestine entrants are ones where the driver of the vehicle was blissfully unaware of their extra cargo this is usually not a route that many operators can travel down.  Therefore, the only other options to mitigate the level of the fine that is likely to be imposed or to extinguish the liability altogether is to prove that as an operator you have complied with the security regulations as set out in the government guidance.

It also helps to have signed up to be a member of the “Civil Penalty Accreditation Scheme” where the discount that may be applied to members fined under the CECPS is reduced by 50% from the maximum penalty starting point for each clandestine entrant found.  The Government states that “those who run an effective [security] system are less likely to encounter incidents involving clandestine entrants”.  The scheme is free to join and recognises operators who ensure they take appropriate actions to secure their vehicles and mitigate against the carriage of clandestine entrants.

How to Comply with UK Law on Clandestine Entrants

The UK Government has published a leaflet on how to try to prevent clandestine entrants from entering any vehicle that is being driven internationally.  This includes details of what they recommend drivers and operators do if they suspect that there may be illegal immigrants on or in their vehicle as well as what to do if one is stopped by Border Force and found not to have a secured vehicle or to have clandestine entrants on or in the vehicle.

If in such an instance you, as an operator and your driver are fined,  then  letters will be sent from Border Force notifying you of the incident and asking for further information about the incident and your policies and procedures around this area in order for them to decide exactly how much of a fine to impose, if any.  This is the time to instruct legal professionals to head off any penalty fine or begin to mitigate the amount that will be applied.  Once a ‘Notice of Penalty’ is issued by Border Force there is then a period of just 28 days to serve a Notice of Objection.  If no objections are served in time, then the fine must be paid within 60 days of the Notice of Penalty being made. So the clock starts ticking very quickly on whether a good result can be achieved.

The team at Pellys Transport & Regulatory Law have been dealing with clandestine entrant cases for over many years and have achieved very significant reductions on the amounts being fined. We also have experience of successfully dealing with vehicle impounding cases.  So, if the worst happens then call us on 01279 818280 or click here to send an email.  We are here to help.

© Richard Pelly – June 2024