Logistics: Bite-Size Insights - May 2021

To kick off this first edition, we consider the consequences of failing to put in place sufficient security systems to prevent clandestine entrants gaining access to vehicles.

We also discuss the impact of Brexit on UK customs following the release of the new edition of BIFA's Standard Trading Conditions, which came into effect earlier this year.

Lastly, we examine where we are with vaccines and COVID-19 tests in wake of the industry's campaign for hauliers to be categorised within the priority group.


Clandestine entrants | Brexit impact on new BIFA terms | Hauliers and vaccines

Clandestine entrants – is your vehicle secure?

It is has been a whirlwind of a year for the haulage industry battling with both Brexit and COVID-19 restrictions. Whilst both had the potential to hinder the movement of goods, freight volumes between the UK and the EU are now reported to be operating at normal levels. The Office for National Statistics has confirmed that exports of goods to the EU has increased by 46.7% in February 2021 compared to January 2021.

However, with this ‘normality’ comes the age old problem of securing vehicles against clandestine entrants. Not only does this have an impact on potential claims from customers and insurance cover, hauliers may also be subject to significant fines that are enforced by the Home Office through the Clandestine Entrant Civil Penalty Team (CECPT).

All drivers must ensure that their vehicles are secure to stop clandestine entrants from entering the vehicle. The Home Office has recommended the following to ensure hauliers have in place an effective system to prevent entry:

For your company, an effective system includes:

  • Written instructions for drivers on how to use the system
  • Robust security devices to effectively secure the vehicle, load and load space
  • Training for drivers on how to use the system and security devices
  • Giving vehicle security checklists to drivers
  • Checking that drivers are following the instructions.

For your drivers, an effective system includes:

  • Security devices (e.g. a padlock, seals and tilt cord) to secure vehicles after loading
  • Checking the security devices and vehicle thoroughly after each stop and before entering the UK
  • Recording checks on a vehicle security checklist.

The Border Force has published a guide on “How to avoid a penalty: 10 steps to an effective system for drivers” which can be found here.

The fine of up to £2,000 can be imposed for all arrivals into the UK, including the Eurotunnel Shuttle. it is also important to bear in mind that the £2,000 fine is for each clandestine entrant found in the vehicle. Therefore, the fine imposed can be significant.

An objection can be made to a fine, however, our experience of filing an appeal is that it is a difficult task to successfully show that the vehicle was ‘secure’ when clandestine entrants have managed to gain access. There is scope for negotiating a reduced fine, but the scope of defending the fine in its entirety is limited.

Reviewing security requirements is now more important than ever in view of the potential delays (causing vehicles to be stationary) where paperwork may not be in order following Brexit, or the requirement to show a negative COVID-19 test when exporting goods to Denmark, German or the Netherlands. See “Vaccines, COVID-19 tests and hauliers – where are we?” below for further comment.

Hauliers should also consider their insurance terms – cover may of course be subject to certain security requirements being in place; for example, padlocks to be used on all vehicles. Failing which hauliers could find themselves with a hefty fine from the CECPT, a claim from its customer and no insurance to assist…

Contact: Shaan Burton

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BIFA Standard Trading Conditions 2021

A new edition of the BIFA Standard Trading Conditions (BIFA STC) came into effect from 1 January 2021 following the UK’s departure from the EU. The 2021 edition reflects changes to direct/indirect representation with UK customs and will replace the previous BIFA STC 2017 edition.

The definition ‘Direct Representative’ has been replaced with the appropriate reference and title of ‘Direct Customs Agent’ which is now defined as:

“The company acting in the name of and on behalf of the customer and/or owner with H.M Revenue and Customs (HMRC) as defined by the Taxation (Cross Border Trade) Act 2018, Clause 21.1(a), or as amended.”

This amendment was necessary in the context of dealings with HMRC and assisting HMRC in determining whether a party is acting in a ‘direct’ capacity. The updated clause now reads:

“In all and any dealings with HMRC, for and on behalf of the UK established Customer and/or Owner, the Company is deemed to be appointed and duly empowered to act as a Direct Customs Agent only, to make Customs declarations in the name of the Customer (Principal) as their 'Direct Agent'."

In summary, the new reference is to Direct Agent rather than Direct Representative.

Being a Direct Agent means that a party is acting in the name of and on behalf of another party. That other party will be responsible for maintaining all customs records and for providing a full audit trail.

It is, therefore, advisable that hauliers consider whether they are indeed direct or indirect “agents” and whether their terms and conditions need to be updated to the 2021 version.

With the additional customs declarations required after Brexit, the potential risk has also increased – it is important to consider whether the haulier’s terms and conditions are adequately incorporated to minimise this risk. HMRC will verify whether a party is acting in a direct capacity by looking at the contractual terms in place.

Contacts: Shaan Burton and Eleonore De Montule

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Updated RHA Conditions 2020

Readers may also find our article on the changes made by the RHA 2020 update useful. This provides an overview of the changes and it a handy reminder that hauliers/customers should try update their terms and conditions if they intend to use the new 2020 version.

Contacts: Shaan Burton and Brittany Ling

Vaccines, COVID-19 tests and hauliers – where are we?

The UK haulage industry has been campaigning for our logistics workers to be categorised in the priority group when it comes to rolling out the vaccination programme. Logistics UK’s Chief Executive David Wells commented that:

There is evidence from the Office of National Statistics (ONS) that operational logistics workers, and transport workers more generally, are more exposed and at risk than the average employee.

Almost 80% of domestic freight is moved by road – an easy argument that drivers of such freight are essential and, arguably, to be given priority status when it comes to being vaccinated. However, as of 8 April 2021 the petition filed to prioritise those in logistical transport has only received 240 signatures; a far cry from the 10,000 signatures required for the government to respond to the petition. The government’s current vaccine timetable remains in place and people aged 45 and over are given priority.

However, whilst there are no confirmed plans yet to prioritise UK hauliers for the vaccine, there are requirements regarding COVID-19 testing:

  • All hauliers transporting goods to Denmark, Germany and the Netherlands must present a negative COVID-19 test at the UK departure port. The negative test will need to be shown at the UK and EU border.
  • From 6 April 2021, drivers coming into England from abroad will need to take a COVID-19 test if the haulier plans to stay in England for more than 48 hours. Drivers coming into England had previously been exempt.
  • The tests are to take place on the UK side with the first test being carried out within two days of the haulier’s arrival, the second test between three and five days of arrival and the third test between six and eight days of arrival.
  • There is no requirement to take a test if arriving in England from a Common Travel Area (CTA). The CTA is the UK, Ireland, the Channel Islands or the Isle of Man.

The testing requirements apply to both UK and non-UK drivers.

It is quite clear that the testing requirements will be considerably onerous upon, particularly, UK hauliers. The three stage testing after arriving in the UK is going to see the quick turnaround of goods being delivered and collected for onward travel impossible if that onward travel is in the UK. Haulage companies will need to have a think about their current timetabling and how to make sure they have drivers that can actually leave and enter the country on a tight timetable in an already profit struggling industry. Whilst the testing rules exempt hauliers having to be tested if in England for less than 48 hours, that does not mean that the haulier can arrive at an EU country without a test.

Staffing and contractual shipping deadlines will need to be thought through carefully.

Contact: Shaan Burton

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