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The UK's immigration system has faced increasing pressures over the past decade, with clandestine entrants seeking entry via perilous routes. This has prompted the government to implement robust measures to better regulate its borders, with the UK Border Force (UKPF) playing a pivotal role. Alongside this, civil penalties for transport operators have become an enforcement tool.
Civil penalties for transport operators
The UKPF collaborates with international counterparts to prevent illegal migration at its source. One of the key tools is advanced technology, such as heartbeat monitors, carbon dioxide detectors, and sniffer dogs.
A significant aspect of the UK’s approach to preventing clandestine entry has been the imposition of civil penalties on transport operators and drivers who fail to secure their vehicles adequately. These penalties are designed to incentivise carriers to take responsibility for preventing migrants from gaining unlawful access to the UK.
The civil penalties scheme was first introduced under the Immigration and Asylum Act 1999. Originally, it empowered the government to fine vehicle operators and drivers up to £2,000 per clandestine entrant found within a vehicle. The penalties applied even if the operators were unaware of the clandestine entry, provided that it could have been prevented with reasonable security measures.
There were, however, ways in which operators could negate the enforcement of a penalty in its entirety. For example, there was a statutory defence available for operators who could demonstrate an effective system for preventing the carriage.
Recent changes to the civil penalty scheme
In 2023, the government made changes to the civil penalty regime as part of its broader strategy to deter clandestine entry. The updated scheme dramatically increases the maximum fines and makes compliance measures stricter. Under the new rules, penalties for each clandestine entrant can now rise as high as £10,000—five times the previous limit. The Home Office also introduced higher fines for repeat offenders, meaning transport operators that repeatedly fail to prevent clandestine entry could face cumulative financial penalties.
This shift is designed to compel greater diligence and investment in vehicle security among hauliers. The penalties are no longer capped at £4,000 for a two-person clandestine entry; now, businesses face the potential of tens of thousands of pounds in fines for just one incident.
A further change is the introduction of a new penalty for failing to adequately secure a goods vehicle against unauthorised access. This offence carries a maximum penalty of £6,000 which can be imposed regardless of whether clandestine entrants have gained entry to the vehicle. This further heightens the obligation on operators to ensure comprehensive security throughout the transport supply chain.
The final change of note was the removal of the key statutory defence, instead leaving only one defence of duress. Duress, in practice, is highly unlikely to occur, almost making this offence one of strict liability.
KLG Trucking SRL v Secretary of State for the Home Department (July 2024)
A penalty was imposed on KLG Trucking SRL (KLG) after eight clandestine entrants were discovered hidden in one of its vehicles. UKBF claimed that KLG had violated one of the Regulations (Regulation 2E(2)) concerning the requirement to maintain records of vehicle security checks to prevent unauthorised access, citing that “[t]he Checklist provided on the day of the incident shows no checks within 24 hours of the incident.”
The penalty was originally £80,000 but was reduced to £36,000 after KLG’s objection to the penalty was considered by UKBF.
KLG appealed the £36,000 penalty, but the judge at Nottingham County Court upheld the fine. This was further appealed by KLG to the Court of Appeal.
The decision
The key issue before the Court of Appeal was whether KLG had adhered to Regulation 2E(2).
The Court of Appeal determined that the judge had been “mistaken” in finding that KLG had breached Regulation 2E(2) for two reasons: (i) the initial penalty notice issued by UKBF did not allege a failure to record the checks required by Regulation 2E(2), and (ii) the Secretary of State had not otherwise clearly indicated that such a failure was being alleged.
KLG’s appeal was partially successful, with the Court of Appeal reducing the penalty by 50% from £36,000 to £18,000, reflecting the Penalty Code’s provision for a 50% reduction when full compliance with the Regulations is demonstrated.
Discretion not to impose a penalty
KLG argued that no penalty should be imposed when full compliance with the Regulations is shown; a defence that had been available previously but removed in the 2023 changes.
The Court of Appeal disagreed, stating that the mere fact that a vehicle owner has not been proven to have breached the 2002 Regulations is not sufficient grounds to refrain from imposing a penalty or to set it below the level specified in the Penalty Code.
Comment
The enhanced civil penalties reflect a hardening stance on illegal immigration, which has been a politically charged issue, particularly following Brexit. Moving forward, there are two key considerations for all international operators:
- The Clandestine Entrant Civil Penalty Accreditation Scheme – this is free to join and membership can result in a 50% discount from the starting point for any penalties imposed.
- Review of the current systems for adequately securing the vehicle and preventing the carriage of clandestine entrants.
Read other items in Crime and Regulatory Brief - November 2024