The problems and issues surrounding persons concealed in vehicles entering the UK, often via the port of Calais, are well known. The situation has escalated dramatically over recent years and owners, operators and drivers of vehicles potentially face very significant civil penalties where this occurs.
There is a mechanism for objecting to and appealing against such penalties. Woodfines’ Road Transport team can assist in advising you and applying for reductions in the penalties imposed. In almost every case, we have been able to achieve reductions in penalties although of course every case turns on its own particular circumstances.
Where clandestine entrants are discovered when entering the UK, Border Force conducts an investigation and ultimately issue a Notice of Liability to a Penalty to the owner, and/or operator, and/or driver. Invariably, the penalties imposed in most cases, where commercial vehicles are concerned, are against the operator and driver. The Notice will indicate what penalty per entrant has been fixed, having investigated the matter and having had regard to any information provided by the operator and driver concerning:
(a) the system that was in place to prevent clandestine entry;
(b) the condition of the vehicle including security features; and
(c) any other relevant factors such as whether this is the first or a repeat event and financial circumstances.
The penalty fixed by Border Force is multiplied by the number of persons concealed within the vehicle to provide a total sum. This can amount to a very considerable sum and the penalty for the operator may be identical to that of the driver who will ordinarily be of more limited means. It is entirely normal for the civil penalty imposed on a driver to amount to the equivalent of many months net take-home pay. In addition, this full penalty amount can dwarf many fines for quite significant offences in the criminal courts. Some penalties are clearly unaffordable and absurdly high and disproportionate.
So long as a written objection is lodged within 28 days, it is possible to seek a review of the penalties imposed. The amount is then reconsidered by Border Force and adjusted downwards where representations are accepted as justifying this. If the owner/operator/driver is still not satisfied with the result, then there is a route of appeal to the County Court, though at that stage there is the risk of having to pay the other side’s legal costs if the appeal is unsuccessful. The County Court route can be taken without first seeking an administrative review by Border Force but is less usual.
It should be noted that if the driver does not pay the amount due, then the liability for that sum falls on the owner or operator of the vehicle.
Our experience is that any penalties are often imposed at too high a level because owners, operators and drivers do not provide Border Force with the correct information and evidence at an early stage. We can assist you in this regard by providing assistance at the outset in order to keep the civil penalty amounts to the minimum reasonably possible.
For further information please get in touch with our experts: