Clandestine Entrant Civil Penalties
Clandestine entrant civil penalties can have significant financial consequences for drivers and transport businesses. If you have received a penalty notice, it is important to understand why the penalty has been imposed, how the amount has been calculated and whether it can be challenged.
The Clandestine Entrant Civil Penalty Scheme covers two distinct types of penalty: carrying a clandestine entrant and failing adequately to secure a goods vehicle against unauthorised access. A penalty for failing to secure a goods vehicle can be imposed even where no clandestine entrant is found.
Liability can affect drivers, owners and hirers and, in the case of detached trailers, operators. Companies may also be liable for penalties imposed on their drivers.
If you have received a civil penalty, I can advise you on the decision, the amount of the penalty and the options available for challenging it.
Why Have I Received a Clandestine Entrant Penalty
A civil penalty may be imposed where a responsible person has carried a clandestine entrant or where a goods or passenger vehicle has not been adequately secured against unauthorised access. These are separate penalties under sections 32 and 31A respectively of the Immigration and Asylum Act 1999.
A penalty for carrying a clandestine entrant may arise where a person is discovered concealed in or on a vehicle in an attempt to avoid UK border controls.
A separate penalty may be imposed for failing adequately to secure a goods vehicle. Importantly, a clandestine entrant does not have to be found in the vehicle for this penalty to apply.
Depending on the circumstances, liability under the scheme can extend to an owner, hirer or driver and, for a detached trailer, an owner, hirer or operator. Companies may also be liable for penalties imposed on their drivers.
The circumstances leading to the penalty, the security procedures followed and the basis on which the penalty has been calculated should therefore be examined carefully before deciding how to respond.
Challenging a Clandestine Entrant Civil Penalty.
If you disagree with a clandestine entrant civil penalty or the amount imposed, there are procedures for challenging the decision. It is important to act promptly and consider the evidence supporting the challenge.
A written objection can be made against the penalty or its amount. Published Home Office guidance states that the objection must give full reasons, include supporting documents and be received within 28 days of the date of issue of the penalty notice.
There is also a separate right of appeal to the County Court under the published guidance. The appeal can be made whether or not an objection has first been submitted. The guidance states a 28-day period from the penalty notice, or, following an objection, 28 days from the decision on that objection.
When considering how to challenge a penalty, relevant matters may include:
- the basis on which the penalty has been imposed;
- whether the person or business has been correctly identified as liable;
- the evidence relating to the circumstances of the incident;
- the vehicle security procedures and records;
- whether the amount of the penalty has been correctly determined; and
- any relevant evidence concerning the person’s financial circumstances where the amount or ability to pay is in issue.
The current penalty Code of Practice governs matters taken into account when determining the amount of penalties under sections 31A and 32 of the Immigration and Asylum Act 1999, and the Secretary of State must have regard to that Code when considering an objection.
The objection or appeal should therefore address the particular basis of the penalty and be supported by appropriate evidence, rather than simply stating that the penalty is unfair.
How is the Amount of a Civil Penalty Determined?
The amount of a clandestine entrant civil penalty will depend on the type of penalty, the responsible person’s previous liability and any reductions that apply under the relevant Code of Practice.
For failing to secure a goods vehicle, the maximum penalty is £6,000 per responsible person for each incident, subject to an aggregate maximum of £12,000 per incident. The starting point is affected by the responsible person’s record of penalties during the previous five years.
For carrying clandestine entrants, the maximum penalty is £10,000 per responsible person for each clandestine entrant, with a maximum aggregate penalty of £20,000 per clandestine entrant across all responsible persons. Previous penalties within the preceding five years are again relevant to the starting point.
The amount may also be affected by matters including:
- membership of the Civil Penalty Accreditation Scheme;
- compliance with the vehicle security requirements in circumstances specified by the Code; and
- an application for means testing based on the financial circumstances of the individual or business.
For businesses, the Code provides means-testing reductions for qualifying micro, small and medium-sized enterprises, while individuals can provide evidence of their income and financial circumstances for consideration.
The calculation should therefore be checked carefully. Even where liability for a penalty is not successfully challenged, there may still be an issue about whether the amount imposed has been correctly determined.
Preparing an Objection or Appeal
Careful preparation is important when challenging a clandestine entrant civil penalty. The penalty notice, the reasons given and the evidence relating to the incident should be reviewed before deciding whether to challenge liability, the amount of the penalty, or both.
Depending on the circumstances, relevant evidence may include:
- records showing the security checks carried out on the vehicle;
- documents recording the security devices used;
- evidence of the procedures and instructions provided to drivers;
- records relating to stops and checks made during the journey;
- evidence relevant to whether the requirements of the scheme were followed;
- information concerning any previous civil penalties; and
- financial information where means testing or the level of the penalty is being challenged.
The Home Office Objection and Appeals Notice requires a written objection to give full reasons and include the supporting documents relied upon. It also warns that additional information submitted after the objection has been decided will generally not be considered except in the most exceptional circumstances.
Where the amount of the penalty is challenged on financial grounds, the Level of Penalty Code of Practice provides for means testing and requires supporting financial evidence.
The objection or appeal should therefore be prepared around the particular issues in the penalty notice and supported by the available evidence, rather than relying simply on an explanation of what happened.
What Can Happen if I Challenge a Civil Penalty?
The outcome will depend on the basis of the challenge, the evidence provided and whether the penalty itself, the amount imposed, or both are disputed.
Following an objection, the penalty may remain unchanged or the decision may be varied in relation to liability or the amount imposed. The Home Office Objection and Appeals Notice expressly allows an objection to be made against either the penalty imposed or its amount.
If the matter proceeds to an appeal, the County Court can consider the material considered by the Home Office together with anything else the court considers relevant.
An appeal may succeed or fail, and there can also be costs consequences. The Home Office guidance states that the court may make an order for costs against an unsuccessful appellant, or against the Home Office where an appeal succeeds.
How I Can Help with a Clandestine Entrant Civil Penalty
I can review the penalty notice and the circumstances in which it was issued, advise you on the basis of the penalty and whether there are grounds to challenge the penalty, the amount imposed, or both.
Where a challenge is appropriate, this can include preparing the objection and supporting evidence, advising on the calculation of the penalty and any relevant means-testing issues, and dealing with a County Court appeal where necessary.