There have been a number of recent reports of tourists unwittingly bringing in illegal entrants and, having notified the authorities, the tourists have received a civil penalty notice imposing a fine under section 32 of the Immigration and Asylum Act 1999 (“the 1999 Act”) and the Carriers’ Liability Regulations 2002 (“the 2002 Regulations”), so I felt it might be a good time to address the subject.
The 1999 Act sets out various criminal provisions in connection with illegal entrants but this article deals with the regime for civil penalties imposed where “clandestine entrants” have stowed away on vehicles, principally lorries, coming into the country (an issue that still exists despite the political and public focus on “small boats”). As with most “Customs” legislation, the Act and Regulations have been deliberately drafted so as to give extensive powers to the authorities dealing with the situation.
The starting point for this situation is section 32 of the 1999 Act which defines a “clandestine entrant” as someone who arrives in the UK or passes through immigration controls concealed in a vehicle or claims or seeks asylum or evades or attempts to evade immigration control and section 32(2) makes provision for:
“a person who is responsible for a clandestine entrant to pay … a penalty in respect of the clandestine entrant or any person who was concealed with the clandestine entrant in the same transporter”.
A “Transporter” is defined at section 43 of the 1999 Act as
“a vehicle (including a goods vehicle), ship, aircraft or rail freight wagon together with … its equipment and … and stores for use in connection with its operation”.
When imposing a penalty there are a number of factors for the Secretary of State (i.e. acting by Border Force Officers) to take into account including the actions taken by the carrier in relation to;
“checking a person has not gained unauthorised access to the transporter, .. the reporting of any unauthorised access … and keeping of records to establish that other actions specified in the regulations have been taken” (section 32(2D)).
Obviously most international haulage companies have (or should have) detailed policies and procedures in place for such things but very few tourists keep or maintain adequate (or any) records of the steps they have taken to prevent someone stowing away in their bike carrier.
There is a £2,000 maximum fine per clandestine entrant (£4,000 per clandestine and someone with them) set by the Regulation 3 of the 2002 Regulations and a Code of Practice – available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1135677/Level_of_Penalty_Code_of_Practice_January_2023.pdf – which sets out the criteria to be applied when determining the correct penalty.
There is a defence to liability to a penalty set out in section 34 of the Act if the carrier was acting under duress (section 34(2)) or
“(a) did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the transporter;
(b) an effective system for preventing the carriage of clandestine entrants was in operation in relation to the transporter; and
(c) that on the occasion in question the person or persons responsible for operating that system did so properly” (section 34(3));
again, it’s unlikely that a tourist will have such a system and, in any event, the simple fact that a clandestine entrant was being carried rather indicates that any system had not worked properly on the day in question!
The 1999 Act sets out the statutory procedure for notifying the carrier of the penalty (including the specific requirements of the notice, e.g. the reason for issuing the penalty, the amount and date for payment and explaining the appeal procedure – see section 35 of the 1999 Act) and section 35(4) allows a person to object to the imposition of a penalty to the Secretary of State within 28 days (regulation 6 of the 2002 Regulations) or to appeal the penalty to the County Court (section 35A of the 1999 Act).
If a penalty is not paid then it is open to the Secretary of State (under either sections 36 or 36A of the 1999 Act) to detain any vehicle owned or hired by the person served with the penalty and seek an order for sale of the transporter from the Court (see regulation 9 of the 2002 Regulations). The owner or any person with an interest in the transporter may apply to the Court for the release of the vehicle (section 37(2) of the 1999 Act).
Perhaps the most alarming feature of what was clearly intended to be pretty draconian legislation is that Section 36A of the 1999 Act provides that:-
“(8) The detention of a transporter under this section is lawful even though it was subsequently established that the penalty notice on which the detention was based was ill-founded in respect of all or any of the penalties to which it related.
(9) But subsection (8) does not apply if the Secretary of State was acting unreasonably in issuing the penalty notice”
i.e. even if the penalties had nothing to do with the owner or operator of the transporter (for instance the penalty was served on a company with the same or a very similar name to the owner of the detained transporter) the detention (and, potentially, the subsequent sale) of the transporter is lawful unless the owner of the transporter can show that the Secretary of State was acting unreasonably in issuing the penalty in the first place!
As a further salutary lesson (and illustration of the speed of the civil courts at the moment) I recently dealt with a case where unpaid penalties from 2016 and 2017 were relied upon by the Secretary of State to detain vehicles in 2022: the proceedings to determine whether the vehicles (three tractor and trailer units) should be sold or released then took until March 2025 to reach a conclusion!
In that case there was some added confusion because several penalty notices were sent to Company A and a duplicate of one of those penalties was sent to Company B as there was some confusion at the time as to ownership of the vehicle involved. After a three-day trial the judge determined that Company C (who owned the three Units which had been detained) had then hired their vehicles to Company B so the detention was lawful and, in due course, the sale of the transporters was ordered and Company C had to pay the costs of the proceedings.
If you have found this article interesting you may like to peruse my book on Condemnation and Restoration Proceedings available at ‘A Practical Guide to Challenging Seizures under the Customs and Excise Management Act 1979’ by Paul Tapsell – Law Brief Publishing
Members of Becket Chambers can assist in proceedings relating to the seizure, detention or forfeiture of vehicles or goods; please contact the clerks via clerks@becket-chambers.co.uk for more information.
