Hauliers threatened with penalties for unwittingly carrying stowaways in their trucks are being urged to challenge them after a law firm said it was having repeated success in having them cancelled.
JMW Solicitors said operators should not be reluctant to object and appeal against the fines after Border Force withdrew from imposing penalties on a company when illegal immigrants attempted to smuggle themselves out of the UK in one of its HGVs.
In what it described as a “somewhat novel case”, the law firm successfully argued that the six clandestines had gained entry to the haulier’s trailer while it was already in the UK and during the course of its return journey to Slovenia.
As a result, the stowaways could not be defined as clandestine entrants within the meaning of the Immigration and Asylum Act and therefore there was no liability to a penalty.
JMW explained that the driver had discovered them in Maidstone, Kent having collected canned soft drinks from three locations around the UK and while en route to the port and he had then alerted the police.
Laura Hadzik, JMW partner and head of commercial road transport, said that while the case was unusual, it highlighted how crucial it was for haulage companies to take specialist legal advice in cases involving clandestine entrants.
“It is for Border Force to prove that the relevant grounds for imposing penalties exist and hauliers should not be reluctant to challenge penalties through both the objection and appeal stages,” she said.
“We are having repeated success in challenging penalties - resulting in the cancellation of penalties as well as the recovery of the legal costs the haulier has incurred in challenging the penalties.”
Hadzik said JMW was also regularly dealing with cases where Border Force had failed to apply the appropriate discounts and it was consistently securing significant reductions for companies:
“The level of any penalty should reflect the application of the relevant discounts to the maximum level of penalty set out in Border Force’s penalty code.
“These include reductions to the penalty where there is no previous liability to a penalty, where the haulier is a member of the civil penalty accreditation scheme, and where the haulier and driver have complied with their obligations relating to the checking and securing of vehicles.
“There should also be discounts applied to reflect the haulier’s and driver’s financial circumstances.
“Membership of the clandestine entrant civil penalty scheme provides a 50% discount to the level of any penalty,” Hadzik added.
“Hauliers, including those hauliers who only undertake occasional international work, should apply to join the scheme to ensure they benefit from this discount in the event of an incident involving clandestine entrants.
“We are assisting numerous operators with these applications.”
JMW’s advice came as a report into the penalty scheme found that the threat of entry by stowaways at juxtaposed ports remained high and unrelenting, and yet the resources relied on by Border Force were inadequate.
The independent chief inspector of borders and immigration said the projected numbers of staff required to manage the expanded civil penalty scheme underestimated the increase in workload and there were concerns Border Force was preparing for more staff cuts.
The RHA said that the report also identified a “massive disparity” in how fines for operators and drivers are determined, with many staff unaware that they can exercise discretion to not issue penalties in appropriate circumstances.
“Officials have issued fines to drivers reporting clandestine entrants on board vehicles despite full compliance with security procedures and checklists, which leaves many feeling they are being punished for doing the right thing,” the RHA said.
Ashton Cull, RHA senior public affairs lead, added: “This report follows years of drivers and operators being punished even when they’ve demonstrated that they’ve done everything reasonable to keep their trucks secure upon entering the UK.
“It’s been clear to us that the scheme – which is well intentioned – is failing our industry in how it operates.
“We regularly hear of hauliers and drivers hit with disproportionate penalties and being caught up in an appeals process which is understaffed and not fit for purpose,” Cull said.
“Many people in our industry feel that the burden for protecting against clandestine entrants entering the country has been entirely passed to them.
“This report shows the Home Office is not doing what it can to properly staff and invest in Border Force and the [penalty scheme], and exercise the level of discretion required.”
