01st July 2014
Clandestine entrants fine - Defending civil penalties
Most hauliers and drivers are by now familiar with the Civil Penalties levied when so-called “clandestine entrants” are found hidden in trucks entering into the UK via the docks or the Channel Tunnel. The Immigration and Asylum Act 1999 permits the Secretary of State to impose financial penalties of up to £2000 per person brought in by hauliers and drivers and, whilst the Act grants the Secretary of State with a discretion as to whether or not to levy a penalty, more often than not the firm and the driver pays. To avoid a penalty the haulier must demonstrates three things:
- that he did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in his vehicle;
- that he had an effective system for preventing the carriage of clandestine entrants; and
- that the system was in properly in operation on the day in question. Thus, because all three parts of this ‘test’ have to be met, even if the haulier or his driver had no knowledge of illegals in a vehicle, if he has no effective system of prevention then he will receive a penalty.
The Secretary of State has issued a Code of Practice “….to be followed by any person operating a system for preventing the carriage of clandestine entrants” and this Code largely sets the standard to be applied when a decision is being made about a penalty; indeed the 1999 Act requires the Code to be taken into consideration. Arguments frequently arise in appeals in connection with both what with the Code actually requires, and even whether it should it be enforced in every case. Questions raised include whether or not it must be strictly complied with, and to what extent technology can be allowed to replace the requirements set out in the Code. In this context a significant failing can be found in the age of the Code, for it was issued in 2004 and remains largely unaltered since then. Thus as we shall see, 10 years on, it can properly be said that it has completely failed to keep up with both new technology and fresh operating systems.
The Code of Practice
This sets out a largely paper-based system for checking and re-checking load security. As one would expect, much of the work is to be done by the driver: he is required to check for cuts and tears to curtain-sides and that Tilt cords and straps are complete and properly passing through all fastening points. Where a driver collects a pre-loaded trailer or is otherwise absent from loading, he must obtain a signed document from the loader or other responsible person certifying that the load is clear of illegal immigrants. During the journey the driver must regularly check locks and numbered seals and look for tears and breaks in the vehicle fabric; he should also do so immediately before boarding a ferry/train. Employers must provide driver training in security issues and impose a system on drivers to complete checklists and certify that they have made all the required checks; these checklists must be carried in the vehicle and be available for inspection on demand.
Clearly the system envisaged by the Code depends almost entirely on the paperwork completed by the driver. If he cannot produce the checklists when illegals are found in his load then he will have a Civil Penalty imposed and so too will his employer. Of course, the problems of getting a driver out of his bunk at 4.30am, on a wet rainy morning, in a French layby or motorway services, to risk assault, hijack and robbery just so he can tick his boxes, escapes the Secretary of State. The irony is, that a driver with a fully completed checklist, filled in from his bunk or cab without having set foot outside the vehicle, will not pay a penalty (nor too his employer) whilst almost every other honest driver (and employer) with the misfortune to have illegals discovered, will pay.
So what about a better system? In a recent case before the courts a Dutch-based haulier appealed against the imposition of a penalty of £7,200 for six illegals found in his driver’s load. The trailer had been loaded within an airport ‘air-side’ high security area by the sender of the load; the driver was neither permitted to watch nor to participate and could not check the loading process. The rear doors had been closed and sealed with a numbered seal before the driver could check the load, which in any event was impossible because it was so tightly packed. On arrival that same seal was removed, but with 6 illegals inside. It was clear that they had got into the load at the airport and that neither the driver nor his haulier knew about it. But what about the Code of Practice? Well, there were no paperwork-based checks by the driver and nor did his employer require him to conduct them. And, even though this was a trailer loaded in his absence, he had not obtained a signed document from the loader or other responsible person certifying that the load was clear of illegal immigrants. Surely a strong case for a penalty? Well, No, said the employer. Instead of complying with the paper-based Code, he had installed a real-time GPS tracking system and door-sensors, all linked to his 24-hour Operations Centre based in Holland. Thus he could monitor the vehicle from start to finish: identify any irregular movement, detour and unauthorised or unexpected stop, and would know if and when the doors were opened and closed.
In the appeal of this case the Secretary of State argued that, because the employer had not abided by the word of the Code, he should suffer the Civil Penalty even though his technological system was clearly so much better than that in the Code!! The argument went that, because the driver had clearly not made his checks both he and his employer had failed to have an effective system for preventing the carriage of clandestine entrants in place. Fortunately the judge had a bit more common sense; ruled that technology which removed the driver entirely from the equation had to be better than a paper-based system which was so open to abuse. The judge also ruled that the Code of Practice was only one factor for the Secretary of State to take into account: there could be other systems which were equally acceptable.
The effect of this ruling is important, because it means that the Secretary of State can no longer say, “my system or no system.” Those international hauliers with good real-time technology can now rely on that technology to spare them from what some describe as these unjust and unreasonable Civil Penalties. The problem is, the Secretary of State does not accept that position and will continue to claim that the Code of Practice solution is the only way in which a haulier and driver can avoid a penalty. This means that the same argument as was successful in this case must be repeatedly made until the authorities get the message – the Code is only one factor to be considered and technology can better than paper.
This article was written by Simon Clarke barrister and Director of Cartwright King Solicitors in the Road Transport Law department. Simon is a leading expert in both domestic and European Road Transport. For further information and advice email firstname.lastname@example.org or call 0845 894 1622.