30.7.2024 | Industry matters

While the Calais/Dover crossing experiences a high level of attempts to enter the UK illegally, operators entering the UK via other points of entry, such as Felixstowe, should be no less vigilant about the risks of suffering what are now draconian civil penalties.

And, a new case relating to penalties imposed on operators, owners and drivers who carry concealed persons (clandestine entrants) will be a cause of concern to international road (and passenger) transport businesses. In it, the Court of Appeal stated:

“…the mere fact that a vehicle owner has not been shown to have failed to comply” with the regulations does not provide “a good reason either for declining to impose any penalty or for imposing one at a lower level than indicated by the Penalty Code”. 

Put another way, if all anti-avoidance measures are in place, the Border Force can still impose penalties when clandestine entrants succeed in entering vehicles—and the courts will not rule that this is incorrect. Of course, all cases turn on their own set of facts.

 Background

There has been a clandestine entrant civil penalty scheme for some time. However, in February 2023, a significant hike in the penalty that can be imposed against drivers, owners, and operators who carry clandestine entrants in their goods vehicles beefed this up. 

There was an increase from £2,000 to £10,000 per clandestine entrant. 

Further, a defence had previously existed—namely, that a proper and defective system was in place to prevent clandestine entrants from being carried. However, that was also rescinded.

Another change was that it does not now matter if any clandestine entrants are actually discovered in a vehicle itself—a penalty can be imposed for inadequate security of the goods vehicle. 

This leaves operators and drivers now subject to penalties despite deploying what may, in fact, be very good systems to avoid clandestine entrants getting into vehicles and being carried.

The reality is that Ashtons Legal has seen substantially higher penalties imposed, with a greater motivation to appeal against them. This is in comparison to the previous situation, where it might not have been as worthwhile to incur legal fees and risk paying Border Force costs (in any County Court appeal). 

KLG Trucking SRL v Secretary of State for the Home Department

The facts are very simple. Eight clandestine entrants were located in a company goods vehicle. Border Force alleged there had not been proper compliance with the requirement to keep anti-clandestine vehicle check records that were disputed. Penalties of £10,000 per entrant were imposed – a total of £80,000. (Border Force reduced this sum to a total of £36,000 or £4,500 per entrant.)

KLG Trucking SRL appealed. In clandestine entrant cases, there is a right of appeal to the County Court – this can be when the penalty is first imposed or after any administrative review of the penalty sought has been unsuccessful. 

The appeal to the County Court failed. So, the matter was appealed to the Court of Appeal.

The Court found that it was not correct that the company had breached the regulations. The Court reduced the penalty – by half.

However, whilst doing so, it also stated that “…the mere fact that a vehicle owner has not been shown to have failed to comply” with the regulations does not provide “a good reason either for declining to impose any penalty or for imposing one at a lower level than indicated by the Penalty Code”. 

How are penalties calculated?

The Penalty Code governs the amount of penalties, and penalties are imposed using the following starting points:-

• There is no record of liability in the five years before the incident (if so, the starting point is £6,000; otherwise, it will be £10,000).
• 50% discount if there is membership of the Civil Penalty Accreditation Scheme.
• An additional 50% discount could be a penalty starting point if they are the driver and comply with the regulations or, in the case of an operator, they acted to ensure compliance with the regulations.

However, under this regime, these are reductions. Accordingly, full compliance can occur, but there is no right to a zero penalty. 

The law is as currently drafted. Its obvious unfairness is that operators and drivers can deploy avoidance systems of the highest standard, yet this may be insufficient. Penalties may be reduced, but they are still capable of being imposed if there are stowaways despite best endeavours. In such circumstances, it is not unreasonable to state that operators and drivers pay the penalty for being victims in such cases, often where highly sophisticated methods are used to gain entry to vehicles. 

Typically, a case will start with an application to Border Force to review the penalties initially imposed on the operator and driver. If the penalties are not reduced or insufficiently, the matter proceeds to the County Court. There are cost implications at that point: if the appeal fails, those appealing may be ordered to pay Border Force’s costs for defending the appeal. 

Case source. 

Ashtons Legal assists clients in various such cases and is happy to assist any international road transport operators needing help and representation.

If you require advice, assistance, or representation in such cases, please get in touch. It is always best to take very early advice in such cases. 

If you also require advice and assistance concerning any investigation carried out by DVSA and/or advice concerning operator licensing (including Traffic Commissioner Public Inquiry and preliminary hearing matters), please get in touch using Ashton’s online enquiry form or by calling 0330 404 7949.

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