Introduction
Those who are regular travellers between Europe and the UK will be aware that the UK operates a scheme to tackle illegal migration called the Clandestine Entrant Civil Penalty Scheme. This scheme tackles illegal migration through concealment in vehicles by tourist and freight transport routes.
For almost 20 years, under the current Scheme, when clandestine entrants are located a penalty of up to £2,000 per entrant can be imposed on the owner, hirer or driver of the commercial or private vehicle, up to a maximum aggregate of £4,000 per clandestine entrant. Operators are jointly and severally liable for any penalties that their drivers receive whilst driving the operator’s vehicle.
There has been a rise in the number of clandestine entrants detected from 3,145 in 2020-2021 to 3,838 in the past financial year. As a result, the Government believe the current financial penalty and regulations are not sufficient in ensuring that drivers take the necessary steps required to secure their vehicles.
Proposed Changes
The government has introduced changes to the existing Scheme through the new Nationality and Borders Act 2022.
These changes include a narrowing of the statutory defences available to those who carry a clandestine entrant. It will no longer be a statutory defence to argue that an effective system of prevention was in operation and a penalty may still be issued. Evidence of compliance with the regulations could still see a reduction in level of penalty.
The new Act will introduce a new civil penalty for failing to adequately secure a goods vehicle, irrespective of a clandestine entrant being located aboard.
Consultation
The Government are consulting on the following points:
- In respect of the current offence of carrying a clandestine entrant, what should the regulations say about the steps to be taken to secure a vehicle from access by a clandestine migrant?
- What exceptional circumstances should be applicable in defence of the imposition of a penalty?
- The Government are considering raising the maximum penalty from £2,000 per entrant and maximum aggregate penalty from £4,000 per entrant and want to hear views on this proposal. They also want to hear views on whether aggravating and mitigating circumstances should be considered in raising/lowering penalties.
- Regarding the new offence of failing to adequately secure a goods vehicle, they wish to hear views on what adequately securing means and the appropriate steps that should be taken.
- In respect of the new offence, what should be the maximum and aggregate penalties and should aggravating and mitigating circumstances have higher or lower-level penalties and in what circumstances these apply.
- Lastly, they also wish to ask about the Civil Penalty Accreditation Scheme for Hauliers.
Who is this aimed at?
This consultation is aimed at:
- anyone who drives a vehicle which is going to enter the UK, including private drivers and commercial drivers
- anyone who is the owner or hirer of a vehicle which is going to enter the UK
- anyone who is the owner, hirer or operator of a detached trailer which is going to enter the UK
- anyone who is interested in the Clandestine Entrant Civil Penalty Scheme
- anyone in the UK and at international drivers and businesses
Further information of the proposed regulations and information of how to respond and sign up for the engagement sessions can be found at: https://www.gov.uk/government/consultations/clandestine-entrant-civil-penalty-scheme/consultation-document-clandestine-entrant-civil-penalties-accessible
If you receive a Civil Penalty for Clandestine Entrants we shall be happy to advise you with regard to your options, or if you require legal representation, call now and speak to one of our specialist Transport solicitors on 03456 465 465.
