Laura Hadzik (Laura Hadzik, Road Transport Law – JMW Solicitors) is a Partner and Co-Head of JMW Solicitors’ Commercial Road Transport team. She is recognised nationally as one of the leading lawyers specialising in the licensing and regulation of commercial vehicle operators and is well-known and widely respected across the road transport sector. Here, Laura provides her top tips for international coach operators to minimise the risk of potentially hefty penalties under the clandestine entrant civil penalty scheme and explains what they should do if they do receive a penalty from Border Force.
As the summer months approach and we enter peak holiday season, one issue of deep concern to international coach operators is the risk of substantial financial penalties under Border Force’s clandestine entrant civil penalty scheme.
One international coach operator made the local and national headlines earlier this year when two clandestine entrants were found concealed in the luggage compartment of a school coach after it returned from France. Coach operators are therefore, understandably, asking what they can do to protect themselves against such incidents and the potentially hefty penalties involved.
Background
Border Force’s clandestine entrant civil penalty scheme was overhauled with effect from February 2023. The penalties available to Border Force were increased by a staggering 500% (from £2,000 to £10,000 per entrant) and a new penalty – of failing to adequately secure a vehicle against unauthorised access (which can be imposed regardless of whether clandestine entrants have gained entry to the vehicle) – was introduced with a potential maximum penalty of £6,000. The driver and operator are both liable to a penalty (providing a maximum aggregate penalty of £20,000 per entrant or £12,000 in the case of an insecure vehicle) and the operator is responsible for payment of both the driver’s penalty and their own.
The only defence against penalties is that the driver was acting under duress; however, in our experience, in most scenarios, this is unlikely to be the case – the driver is usually completely unaware that clandestine entrants have gained access to the vehicle.
The starting point is, therefore, that penalties are imposed in most cases – even if you are operating an effective system to prevent the carriage of clandestine entrants.
How do Border Force determine the level of penalty?
In February 2023, a new ‘Level of penalty: code of practice’ was introduced, which Border Force must follow when considering the imposition of any penalties.
The starting point is for Border Force to impose the maximum penalty available and then apply a series of discounts as may be relevant to, or appropriate in, each case. Such discounts include: (i) whether the driver and/or operator have had any previous penalties; (ii) whether the operator is a member of the Civil Penalty Accreditation Scheme; (iii) the driver’s and operator’s financial circumstances; (iv) whether the operator has an effective system to both adequately secure the vehicle and prevent the carriage of clandestine entrants; and (v) whether that system was being operated on the day in question. Border Force may also take into account any other factors they consider relevant.
What can operators do to protect themselves against penalties?
The ‘Level of penalty: code of practice’ provides for a 50% discount to any penalty where the Regulations are complied with. The Regulations require operators to have an effective system for adequately securing the vehicle and for preventing the carriage of clandestine entrants. The operator must also be able to demonstrate that those systems were being followed on the day in question.
I would therefore suggest all international coach operators take the opportunity to review their systems now and make any changes to those systems that might be required – particularly if those systems have not been reviewed and/or updated since February 2023 (when the changes to Border Force’s clandestine entrant civil penalty scheme were introduced).
An effective system should include:
- A written policy managing vehicle security and the prevention of the carriage of clandestine entrants.
- The provision of security devices (and spares) to enable drivers to adequately secure the vehicle and any compartments accessible from outside the vehicle.
- Locking of the vehicle when left unattended.
- Driver supervision of passengers boarding/alighting from the vehicle and luggage loading/unloading.
- Driver checking of the vehicle when passengers first board, after each stop and as soon as is practicable before reaching immigration control.
- Recording of the driver’s checks in writing (operators should ensure their vehicle security checklists include all items included on the checklist available at www.gov.uk: C:\Users\LeadbeR\AppData\Local\Temp\msoA748.tmp (publishing.service.gov.uk)
- Route planning to avoid, if/where possible, drivers stopping in areas that are known to be ‘high risk’ for clandestine entrants.
- Driver training/instruction on the system, the use of any security devices, the recording of their checks and what to do if they do suspect clandestine entrants have gained access to the vehicle.
- Ongoing monitoring/auditing to ensure the system is being operated in practice.
- Retraining and/or disciplinary action where breaches of the system are identified (regardless of whether there is Border Force involvement).
What should I do if I get a penalty?
If a vehicle is found to not be adequately secured or clandestine entrants have gained access to a vehicle, the operator and driver will each receive a letter from Border Force notifying them of the incident and asking for more information about what happened to assist Border Force in deciding whether to impose a penalty and, if so, the level of penalty. I would encourage operators to take specialist legal advice at this stage, as providing a comprehensive response to this initial correspondence is more likely to avoid, or at least minimise, any penalty. Operators should also thoroughly investigate the incident to identify the root cause (which may involve re-training and/or disciplinary action if a driver is found not to have followed the operator’s systems) and should review their systems to ensure there are no gaps (or take steps to plug them!).
The next step is the operator and driver will each receive a ‘Notice of Penalty’ confirming the level of any penalty imposed (remember, the operator is liable for both). There is the right to object to and/or appeal the penalty within 28 days from the date of the ‘Notice of Penalty’ or payment of the penalty must be made within 60 days.
JMW’s Commercial Road Transport team are currently dealing with an influx of cases where we are challenging penalties – some involving eye-watering six-figure sums – on behalf of operators and drivers as the real impact of the new scheme starts to filter through. Only last week, Border Force upheld one of our objections to a penalty – resulting in a 99% reduction of the penalty that had originally been imposed.
Civil Penalty Accreditation Scheme
I would also urge all international coach operators to apply to join the Civil Penalty Accreditation Scheme, which recognises those operators who take measures to operate an effective system for securing their vehicles and for preventing the carriage of clandestine entrants. The scheme is free to join, but I would recommend operators take specialist legal advice when completing their applications (we are currently assisting a range of operators from across the UK, Ireland and Europe with this process).
Members of the scheme will benefit from a 50% discount from the starting point for any penalties imposed. Previous liability to a penalty does not prevent an operator from joining the scheme, but any application will not be considered whilst penalties remain outstanding.
For further advice or assistance, contact Laura Hadzik on 0345 872 6666 or laura.hadzik@jmw.co.uk