A clandestine entrant is an individual who enters the United Kingdom illegally by hiding in a vehicle in order to avoid immigration controls. As an operator or a driver of a commercial vehicle, you are responsible for ensuring that you have secure systems in place to prevent this happening to you and that no clandestine entrants are hidden in your vehicle. If you do not have a secure system in place and are found carrying clandestine entrants, you will be faced with a substantial fine.
A secure system might include the following:
Providing security devices to ensure the vehicle is effectively secured;
Training drivers on how to use the system and ensuring that they have written instructions on how to use the system;
Ensuring that drivers are using the system.
If you are found carrying clandestine entrants, you can be fined up to £2,000.00 per person; and as most cases involve multiple entrants, these penalties can be substantial. Once UK Border Force decides to impose a fine, you will be given a Form IS11 which will indicate the amount of the fine imposed on you. There is a deadline of 60 days from the date of the form to pay this.
It is also important to note that where the owner of the vehicle is also the employer of the driver, both the driver and the employer will be jointly and severally liable for the penalty imposed on the driver. This is regardless of whether a separate penalty was imposed on the employer.
UK Border Force also have the right to detain your vehicle due to unpaid fines, or should they have suspicions that the fine will not be paid. The vehicle will only be released once all outstanding fines are paid plus any costs associated with detention of the vehicle.
If you find yourself in this unfortunate position, you can appeal against this penalty on the basis that you did not know, or did not have reasonable grounds to suspect that a clandestine entrant was hidden in the vehicle and that you had secure systems in place which were properly operated at the time of the contravention.
Even if the aforementioned defence cannot be shown in full, specific circumstances of the case can be used in your favour to reduce the amount of the penalty.
To challenge the decision, you will have the option to either file a Notice of Objection directly with the Border Force or to appeal the penalty to the County Court within 28 days of the date of the form IS11. Given the timeframe, you should act quickly and obtain legal advice as soon as possible as failure to do so can have drastic consequences.
The Notice of Objection is your last chance to challenge the fine with the Border Force and thus, it is important to get it right. As you have 28 days from the date of the form IS11 to submit this, it is critical to get legal advice as soon as possible as the subsequent decision of the Border Force will be their final one.
If, following filing of the Notice of Objection, the Border Force’s decision is still unsatisfactory, your only option is to appeal this to the County Court. A judge will hear your case and will make a decision whether the fine was rightly imposed on you, and if so, whether the amount of the fine was just. The judge can reduce the fine or even rescind it completely, and thus it is crucial to ensure that your case is properly presented.
You can also protect yourself by joining an accreditation scheme to help reduce your fines using the government application process. Companies who are part of the scheme must ensure that a secure system is in place and is used correctly throughout. If you would like to discuss this with one of our specialist lawyers, then please give us a call.
If you or one of your drivers have been found carrying clandestine entrants and you are facing a penalty, contact our specialist team as soon as possible. We have extensive experience in dealing with matters concerning clandestine entrants and will ensure that you get the best outcome possible.
Contact our Commercial Team on 0330 107 0106 or business@imd.co.uk.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
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