In this article, a follow up to our 'unauthorised access' article, we explore the offence of carrying clandestine entrants, contrary to Section 32 of the Immigration and Asylum Act 1999 (“the Act”), and The Carriers Liability Regulations 2002 (the “Regulations”).
What is a clandestine entrant?
A clandestine entrant is defined as a person who arrives in the UK concealed in a vehicle, ship, aircraft, rail freight wagon and passes, or attempts to pass, through immigration control concealed in a vehicle or arrives in the UK on a ship or aircraft having embarked concealed in a vehicle at a time when the ship or vehicle was outside of the UK.
The clandestine entrant must claim, or indicate their intention to claim, asylum in the UK or evade, or attempt to evade, immigration control. In practical terms though, the very practice of concealing oneself aboard a vehicle is going to constitute attempting to evade immigration control.
Who could be fined if a clandestine entrant is found on a goods vehicle?
In respect of an entrant who arrives in the UK concealed in a vehicle, ship, or aircraft, the responsible persons are the owner and captain of any ship or aircraft. If entrant is concealed in a vehicle, but not a detached trailer, the owner, hirer, and driver of the vehicle and if it is a detached trailer the owner, hirer, and operator of the trailer.
In respect of an entrant that is concealed in a rail freight wagon, the responsible person is the train operator who, at the last scheduled stop before arrival in the United Kingdom, was responsible for certifying the freight train as fit to travel to the UK or, where the entrant was concealed in a freight shuttle wagon, the operator of the shuttle train of which the wagon formed part.
In respect of an entrant who has arrived in the UK concealed in a vehicle, or on a ship or aircraft having embarked that ship or aircraft while concealed in a vehicle, the responsible person is – if the transporter is a detached trailer – the owner, hirer, and operator of the trailer, and if it is not a detached trailer, the owner, hirer, and driver of the vehicle.
A person who falls within more than one category of responsible person may be liable for a separate penalty in each capacity.
Importantly, these provisions do not apply solely to commercial operators and drivers. They can also apply to members of the public. For example, anyone returning to the UK with a caravan has a legal obligation to check it for unauthorised passengers before commencing their journey.
Clandestine entrants penalties
The maximum penalty payable by a responsible person in respect of a clandestine entrant (or a person concealed with them) is £10,000, and the maximum aggregate penalty payable is £20,000.
This applies per entrant, per incident, so if three clandestine entrants were discovered hidden aboard a vehicle the maximum aggregated penalty could be as much as £60,000.
However, if there is no record of previous liability in the preceding five years, there is a lower starting point for the penalty:
History | Starting Point |
|---|---|
No record of liability in the preceding five years | £6,000, per entrant, per incident |
One or more penalties in the preceding five years | £10,000, per entrant, per incident |
Reductions and defences
There are two statutory defences available to an offence under this section.
The first is to show that the responsible person was acting under duress when allowing the clandestine entrant to be concealed. Where this defence is engaged, every other responsible person also benefits from this defence.
The second defence is specific to rail freight. It applies where the carrier knew or suspected that an entrant was, or might be, concealed in a rail freight wagon after the wagon had commenced its journey to the UK, but could not stop the train or shuttle train without endangering safety.
The defence is only available where an effective system for preventing the carriage of unauthorised entrants was in operation and that system had been properly implemented by the person responsible for operating it
If there is not a defence available, it is possible to receive a reduction in the starting point for the penalty.
If the responsible person is a member of the Civil Penalty Accreditation Scheme they are eligible for a 50% reduction to the starting point of the penalty.
A further 50% will be applied to the starting point if the responsible person is the driver or another responsible person who was present during the vehicle or detached trailers journey to the United Kingdom and they complied with the Regulations.
Alternatively, a further 50% discount is applicable to the starting point if the responsible person is not the driver and was not present during the vehicle or trailer journey to the UK, but they had acted to comply with the regulations.
The Secretary of State may also consider any other matters which they think are relevant.
It is important to note here that the reductions are cumulative and not sequential, so if you qualify for two of these reductions, you will be entitled to a 100% reduction in penalty.
However, for commercial operators, it is important to remember that liability is joint and several so if multiple penalties are issued there may still be financial exposure, even if you can avail yourself of a 100% discount.
For more information on operators' obligation in respect of clandestine entrants, contact our transport regulation solicitors.
