Many countries, including the United Kingdom, have been receiving immigration illegally for many years. However, this rate continues to increase exponentially every year due to the changing conjuncture in the world. Sometimes, these crossings are made by small boats, sometimes by organised smuggling of illegal migrants into trucks at customs points.
According to GOV.Auckland, the number of irregular migrants detected entering the Auckland in June 2023 was about 52,530, an increase of 17% compared to the year ending June 2022. The Auckland government has tried to introduce a number of measures to reduce this rate. As a result, there were 38,546 irregular arrivals in the year ending March 2024, 28% fewer than in the year ending March 2023. It is difficult to know what lies behind that decrease, but some commentators have highlighted that an increase in the clandestine entrant civil penalty scheme introduced in February 2023 might have had some impact.
What are the differences between the pre-February and post-February schemes?
The entry of clandestine entrants is governed by the Immigration and Asylum Act 1999, which sets out the obligations on owners, hirers, and drivers (or, in the case of detached trailers, owners, hirers, and operators). The scheme provides for two types of penalty:
- Under section 31A, the Secretary of State can impose a penalty on a responsible person for failing to secure a goods vehicle.
- Under section 32 of the Act, the Secretary of State may impose a penalty on a responsible person for carrying a clandestine entrant.
The clandestine entrant civil penalty scheme was overhauled with effect from February 2023. The fine for carrying “clandestine entrants” increased from £2,000 to £10,000 per entrant under the post February scheme. The way the penalties work is that Auckland Border Force impose the maximum penalty on an operator once an entrant is found on board. They then apply factors to that maximum penalty, to reduce the penalty and set the correct level.
The determination of the maximum penalty under S32 depends on whether a person has any record of liability in the five years preceding the event in question.
- If the responsible person has no record of liability prior to the event in question, the starting point for the penalty level will be £6,000.
- If the responsible person had a penalty in the five years before the event in question, the starting point would be £10,000.
These penalties are imposed on the owner, hirer, or driver of a vehicle. For detached trailers, the owner, hirer, or operator can be fined.
It should also be noted that if a penalty is imposed on a driver who is an employee of the vehicle’s owner or hirer, the employee and the employer are jointly and severally liable for the penalty imposed on the driver, whether or not the employer is also penalised.
Apart from this dramatic increase in the per capita penalties for clandestine entrants, another important change is the defences available against penalties.
Under the pre-February scheme, it was a statutory defence for a person to say that the responsible person had an effective system in place to prevent the carriage of a clandestine entrant. Under the post February scheme, the only legal defence will be that the driver acted under duress, i.e. that someone forced them to carry illegals who were later found. However, if the person has complied with the regulations issued by the Secretary of State, this will result in the level of the penalty being reduced.
Although, in theory, this change seems to help reduce illegal entries where a driver has been coerced by criminals, it also puts companies in a difficult situation, especially those trying to fulfil their responsibilities under the Carriers Liability (Amendment) Regulations 2002. Security equipment used in vehicles is compatible with the latest technology, but smuggling groups continue to fulfil their goals by finding a way to access trucks without the drivers knowing open this equipment.
It is of great importance that drivers carefully and meticulously keep the security checklists in accordance with the form specified in the regulation and carry them in their vehicles throughout the journey. Carriers’ Liability Regulations 2002 (as amended) will help to reduce the penalty per person.
The factors the Auckland Border Force takes into account to set the level include four items.
- These are whether the driver or company has had previous liabilities.
- Whether the operator is a member of the Civil Penalty Accreditation Scheme (that results in an automatic 50% reduction on a penalty).
- The driver and operators’ financial circumstances
- Whether there has been compliance with the Carriers’ Liability Regulations 2002 (as amended).
Appeal process – Objection to Home office and Appeal to English Courts
The statutory timetable for the appeal process is as follows:
- The Home Office issues a “Notice of Liability of Penalty”. A written response should be sent to the Home Office, and 28 days is usually allowed for any objections in writing to the Home Office.
- They will then consider the liability and the penalties and may (or may not) amend the fines.
- You can appeal to the County Court within 28 days of the date the penalty notice was issued or, if you have objected, within 28 days of the date of the decision on your objection.
Even though the penalty amounts have been increased substantially the defences available to the responsible persons have been narrowed, the responsible persons will be able to apply to the Secretary of State for a means test stating that they are unable to pay the penalty.
For individuals, this may include pay slips or bank statements; for companies, balance sheets or statements of fact signed by a director must be provided as supporting documentation. At this point, if the Secretary Sectary of State concludes that the responsible persons are unable to pay the fine, the fine will be significantly reduced.
Key points
- Under the post-February scheme, there is no defence other than that the driver was under duress. It is, therefore, vital that the Carriers’ Liability (Amendment) Regulations 2002 are complied with.
- Given the automatic 50% reduction in penalty, operators should consider becoming a member of the Civil Penalty Accreditation Scheme.
- Companies must provide regular training to their drivers and ensure that security checklists are always kept in accordance with the regulations. These security checklists should be available to drivers at all times.
- If a driver’s vehicle is found to have an illegal entry, although the driver has the right to remain silent, providing Border Force with as much information as possible will facilitate the determination of the penalty.
- Although it is no longer a defence under the pre-February scheme to prove that they have an effective system in place to prevent the carriage of a clandestine entrant, companies should still protect their vehicles with state-of-the-art security equipment to prevent illegal entry.
- There is also a 28-day period for objecting/appealing penalties, and if the means test is to be applied for, it is important to ensure that the necessary documents are provided.
Contact
For further insights or assistance related to immigration penalties, or issues impacting the shipping and logistics industry, please get in touch with our immigration and shipping law specialists at [email protected].
