18th August 2014
Clandestine Entrants - The Minimum Requirements for Avoiding Civil Penalties
Last month’s article on Civil Penalties for “clandestine entrants” found hidden in trucks entering into the UK seems to have generated a lot of interest. Since it was published I have received a number of requests asking about the minimum requirements needed to avoid these penalties.
To recap on last month’s article, 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 even if the haulier and driver had no idea that illegals were hiding in the load. Of course, it is not the Secretary of State herself who administers the scheme; that task is undertaken by the UK Border Force on her behalf and so it is that agency which determines whether to require the payment of a penalty and, if so, how much is to be paid and by whom.
To avoid a penalty three things must be demonstrated:
- that the haulier/driver did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in his vehicle;
- that haulier had an effective system for preventing the carriage of clandestine entrants
- that the system was properly in operation on the day in question.
One of the requirements of the Immigration and Asylum Act 1999 was a requirement that the Secretary of State for the Home Office publish a Code of Practice “….to be followed by any person operating a system for preventing the carriage of clandestine entrants” A further section of the 1999 Act required that, when deciding whether or not to impose a penalty, the Border Force must take the Code into consideration when deciding if a particular system is effective. The result of all this then is that it is the Code of Practice which sets out what, as a minimum, an effective system for preventing the carriage of clandestine entrants might look like, although it is important to understand that the system in the Code is not the only possible system – you can have any system you like so long as it is effective in preventing the carriage of clandestine entrants. If a haulier can show that he has complied fully with the Code requirements then there can be no penalty.
So What Does The Code Require?
Part 1 of the Code deals with ‘Road Haulage and Other Commercial Vehicles’,
Part 2 of the Code deals with ‘Buses and Coaches’
Part 3 is directed to ‘Private Vehicles’.
In this article I deal only with Part 1.
To begin with, the Code helpfully explains what is meant by the term “Commercial Vehicle” as being any vehicle which is not a bus, coach, car, taxi, mobile home or caravan, all of which have different rules. The definition however includes trailers of any type, and containers.
The Code then separates out into three sections, the first dealing with pre-loading and loading measures, the second with measures to be taken immediately before boarding a ferry or train (or aircraft!!) and the third setting out some “General Principles” to be followed. Looking at each section in turn, the first requires some very obvious measures and several surprising and somewhat unrealistic measures. The more obvious measures include: checking for cuts, tears or holes in the outside shell, or fabric, of the vehicle, trailer or container and repairing any that are present; locks, tilt cords and straps etc. should be of “robust quality and effective” and undamaged; and checking that no one has managed to get inside prior to loading. Once loaded, all doors, hatches or other means of entry into the loadspace must be closed and locked immediately; seals bearing a unique number must be attached and the number recorded on documentation (e.g. the CMR); and all locks, tilt cords and straps should be properly used and where relevant, sealed.
Less realistic in the real world of international haulage, but nevertheless essential if a penalty is to be avoided, are the measures to be adopted when a driver is not present at the loading of a trailer (e.g. where he swaps with another vehicle, or where he is not allowed by the site owner to be present at loading, as with airport air-side loading); or where a pre-loaded trailer is picked up (such as from a docks), or a sealed container is to be transported. Here, the Code enters deep into the territory of both the surprising and the unrealistic. Where a driver is not present at the loading of the trailer he should “where possible” ensure that loading checks were conducted by “reputable persons” and obtain written confirmation from those persons that both the checks were properly conducted and that no illegals were present when loaded/sealed. More surprising still is the requirement when taking on a pre-loaded or sealed container. Here the driver should, again “where possible” open and check the cargo area for the presence of illegals: he should then apply a new numbered seal.
The requirement that “where possible” a driver should break a seal during his journey is little short of unfathomable. Numbered seals are placed after loading in order to secure a load: they protect a driver from accusations of theft and drugs importation; they provide national customs agencies with continuity; and they reassure the final delivery recipient that all is well with the load. That is why, when a customs or police officer breaks a seal, he replaces it with his own numbered seal and endorses the CMR with his official stamp. Quite how the requirement that a driver breaks and replaces a seal to check for illegals meets those imperatives is not made clear. Many a truck driver has been convicted of drugs-running because his seal was either not present or did not match that recorded on his CMR. And what of the requirement that a French, German, Polish, Romanian, Albanian or other European loading agent certifies a load as checked and free of illegals? Who has ever seen such a document? And what value may be place in reliance upon such a document?
Still, returning to the Code and a system of prevention, section 2 of the Code deals with measures to be taken immediately before boarding a ferry or train. Here the driver must check his vehicle body for damage, his doors are secure, and that all straps, tilt cords and seals remain intact. Seal numbers should be checked. Tool boxes, pallet racks, wind deflectors (a popular hiding place) and the underside of the vehicle must be checked for illegals. All straightforward enough. Records of these checks should be made – more of which later in this article.
Thus to General Principles. Here the Code requires that a document detailing the system operated must be carried. In addition, regular checks must be made whilst en route to the UK and a record of those checks must be kept in the vehicle, ready to be made available for inspection on demand. It is even suggested that such a report should be verified by some third-party who has either witnessed or carried out the checks. And finally, in a statement of the obvious, the Code requires that, where the driver or haulier suspects that there are illegals hidden in his load, he should report the fact but not attempt to board a ferry or train. Unhelpfully however, the Code also requires that the vehicle must not try to enter any UK Immigration Control Area; rather, the driver is exhorted to contact the police of the host-country. This restriction unfortunately includes Coquelles, so any driver suspecting that he has illegals in board, cannot go to UK Immigration and Customs at Coquelles, he should contact the French police. To the author’s direct knowledge the French police and customs seem rather less than interested in such difficulties, having on more than one occasion directed a driver reporting his suspicions to move directly into the UK controlled area at Coquelles without stopping.
As can be seen then, the Code 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 and prevention is thus heavily dependant upon his commitment: he is required to make almost all of the checks and to complete most of the required records. Employers must establish a system of prevention and ensure that drivers properly operate the system, by requiring that he makes the checks and records the fact. Driver training is clearly a highly pertinent issue and whilst the Code of Practice remains silent on this topic, it would be a careless haulier indeed who did not provide training, for evidence of a training program would certainly assist in both prevention and the avoidance of penalties.
Further information and a copy of the Code of Practice can be found at: www.gov.uk/secure-your-vehicle-to-help-stop-illegal-immigration. If you or someone you know wants further advice, the author can be contacted at firstname.lastname@example.org or for further information visit our Road Transport Law department.