Clandestine Entrants Offences

Clandestine entrants pose significant challenges for transport companies operating in and out of the UK. These individuals, who seek to gain illegal entry into the UK by hiding within goods vehicles, not only threaten the security of the nation’s borders but also place a heavy burden on transport operators. Companies found carrying clandestine entrants face severe financial penalties, reputational damage and operational disruption.

At JMW Solicitors, we understand the complexities of these cases and the pressures transport operators face in complying with UK Border Force requirements. Our team of specialist lawyers works closely with businesses to defend against clandestine entrant civil penalties, assist in implementing effective security systems, and navigate the evolving legal landscape.

Whether you need guidance on meeting your responsibilities under UK border control regulations, help with an appeal against a penalty, or advice on how to prevent unauthorised access to your vehicles, we will help ensure that you are doing everything correctly and meeting all legal requirements.

Find out more about how JMW's expert commercial road transport solicitors can help you by calling 0345 872 6666 or by completing our online enquiry form, which will enable us to give you a call back at a convenient time.

How JMW Can Help

All operators of commercial vehicles entering the UK are legally required to have an effective system in place to prevent the carriage of clandestine entrants in or on their vehicles. It is also their responsibility to ensure that all reasonable measures have been taken to operate that system correctly. Failing to meet these obligations can result in civil penalties being imposed, which may lead to significant financial and reputational consequences.

At JMW Solicitors, our specialist commercial road transport team assists businesses in navigating the requirements of UK border control regulations and provides expert support in handling issues related to the clandestine entrant civil penalty scheme. We offer a wide range of services designed to maintain compliance and to defend against penalties if action is taken by the UK Border Force. Our services include:

• Implementing an effective system: We guide transport companies in creating and maintaining effective security systems to prevent unauthorised access by clandestine entrants.
• Drafting a comprehensive written policy: We assist operators in creating and implementing a written policy specifically designed to comply with security regulations for preventing clandestine entry.
• Responding to pre-decision letters: Our team prepares detailed responses to letters from the UK Border Force, ensuring that your company's case is thoroughly and accurately presented.
• Preparing objections to civil penalties: If civil penalties have been imposed, we provide support in preparing objections to challenge the level of fines and the liability of the driver, their employer, or the vehicle's owner.
• Appealing to the County Court: In cases where objections are unsuccessful, we help businesses appeal to the County Court against the penalties imposed. Our appeals are carefully drafted and we include as much information as possible to strengthen your case.
• Applying for the Civil Penalty Accreditation Scheme: We assist transport operators in applying to the Civil Penalty Accreditation Scheme, which is an important step towards demonstrating compliance and reducing the risk of penalties.

At JMW, we will make this process as straightforward as possible. Our practical and personalised advice enables you to manage the situation efficiently and with confidence, giving you peace of mind that your business is compliant and secure.

If you are facing action by the UK Border Force, we are here to help. Our solicitors work closely with you to fully explain your rights and responsibilities, and we provide expert guidance throughout the process.

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What Are Clandestine Entrants?

Clandestine entrants are individuals who attempt to gain illegal entry into the UK by hiding in or on vehicles, typically goods vehicles, but also coaches. This activity poses significant risks not only to the individuals themselves, but also to transport companies and their operations.

These individuals often exploit vulnerabilities in security systems and gain access to vehicles in a variety of ways, such as:

• Breaking into inadequately secured trailers, luggage storage or containers.
• Taking advantage of detached trailers left unattended.
• Hiding beneath or within vehicles during stops or loading/unloading.

The impact of clandestine entry is far-reaching. For transport operators, discovering a clandestine entrant onboard can result in serious consequences, including fines under the clandestine entrant civil penalty scheme administered by the UK Border Force. Beyond financial penalties, companies may also face reputational damage, operational delays, and the loss of customer trust if they are found to have failed in their responsibilities to prevent unauthorised access.

Given the high-risk nature of international road transport, operators must remain vigilant at all times, implement effective security devices and ensure their vehicles are adequately secured. Negligence in this regard not only increases the risk of clandestine entrants gaining access but also exposes businesses to penalties and legal action.

What Are Operators’ Responsibilities for Preventing Clandestine Entrants?

Operators of goods vehicles entering the UK are legally required to take all reasonable measures to prevent clandestine entrants from accessing their vehicles. These responsibilities are outlined under UK Border Force guidance and are designed to secure vehicles adequately against clandestine entrants in compliance with security regulations.

To fulfil their obligations, operators must implement and maintain an effective system that prevents unauthorised access. This includes:

• Conducting regular security checks: Operators and drivers must carry out thorough inspections of their vehicles before, during, and after each journey. This includes checking for signs of tampering and confirming that security devices remain intact. Drivers must ensure that the security checks are documented from the point of departure and each stop of the vehicle.
• Using effective security devices: Vehicles should be equipped with effective security systems, such as tilt cords, robust locks, seals and alarm mechanisms, to deter and detect attempts at clandestine entry.
• Ensuring vehicles are adequately secured: Trailers, containers, and other parts of the vehicle should be securely locked, especially when vehicles are left unattended. Operators should avoid leaving detached trailers in insecure locations.
• Training staff and drivers: Operators are expected to provide regular training for drivers and employees to help them recognise security risks and properly inspect their vehicles for potential breaches.
• Following the Civil Penalty Accreditation Scheme: Enrolling in the Civil Penalty Accreditation Scheme demonstrates a commitment to compliance and provides guidance on best practices for securing vehicles and avoiding penalties.

At JMW, we help transport companies understand their legal responsibilities and verify that their operations meet UK border control standards. We work closely with businesses to develop comprehensive security policies, train staff on effective security measures, and minimise the risk of breaches.

What Are the Penalties for Carrying Clandestine Entrants?

Transport operators found carrying clandestine entrants in or on their vehicles face significant penalties under the clandestine entrant civil penalty scheme. These penalties, administered by the UK Border Force, are designed to enforce compliance with UK border control regulations and deter negligence in securing vehicles.

The fines imposed for carrying clandestine entrants can be substantial, with a maximum penalty of £10,000 per person found on board a vehicle. This means that for vehicles carrying multiple individuals, the financial burden can escalate quickly. The penalty applies to the following parties:

• The driver of the vehicle.
• The driver’s employer.
• The vehicle’s owner or hirer.

The maximum aggregate penalty for all responsible persons per clandestine entrant is £20,000. Operators are jointly and severally liable for the driver's penalty. 

If you are driving a goods vehicle that was not adequately secured, you could be liable for a fine of up to £6,000 even if no clandestine entrant is found. This applies whether you are entering or departing the UK.

In cases where a vehicle is found to be inadequately secured, all three parties may be held jointly liable, and each can receive a fine, significantly increasing the overall cost. These penalties are applicable even if the driver or operator was unaware of the presence of clandestine entrants. If the fine is not paid within the time limits, operators can face having their vehicles seized by Border Force when they re-enter the UK. 

Where road transport companies are fined multiple times, either on several separate occasions, or through a large number of clandestine entrants being discovered hidden in one load, the Traffic Commissioner may call that operator to a hearing to discuss their security processes and procedures.

In addition to the financial strain, transport companies may also experience reputational damage, as fines for carrying clandestine entrants can damage relationships with clients and harm a company’s standing in the industry. Operational delays can also ensue, as vehicles stopped and found to be carrying clandestine entrants may face prolonged detentions, disrupting delivery schedules and supply chains.

You can learn more about the clandestine entrant civil penalty scheme on the government website.

How to Defend Against a Clandestine Entrant Charge

If you or your business is facing action under the clandestine entrant civil penalty scheme for carrying clandestine entrants, it is essential to act swiftly and strategically. While the fines imposed can be substantial, there are legal defences available that may help you reduce or even overturn the penalties. At JMW, we specialise in helping operators challenge these charges and ensure they are fully prepared to defend their case.

To build a strong statutory defence, it is crucial to show that an effective security system was in place to prevent unauthorised access. This includes having robust security devices such as tilt cords, seals, locks, and alarm systems, as well as detailed written policies on vehicle security.

A valid defence also requires evidence that all reasonable measures were taken to secure the vehicle. This can include:

• Regular vehicle checks before and during journeys.
• Proper use of effective security devices to secure trailers and containers.
• Not leaving trailers unattended or in insecure locations.
• Providing regular training to drivers and staff on preventing clandestine entry.

If you receive a pre-decision letter from the UK Border Force, it is vital to respond promptly and comprehensively, with the support of your legal representatives. This letter provides an opportunity to explain your position and present evidence before a penalty is finalised.

If a penalty is imposed, you have the right to object to the decision. This involves submitting an objection to the UK Border Force, challenging the level of the penalty and the liability of the driver, their employer, and the vehicle’s owner. Operators have 28 days to object to a fine.

In cases where an objection is unsuccessful or you choose not to object, you can appeal to the County Court. This appeal must be within 28 days of the date that the objection is decided, or the date that the penalty notice was issued. This process allows you to challenge the penalty further, but it requires a robust legal argument and detailed evidence. If you are successful in appealing the Border Force penalty, you would usually receive a contribution to your legal costs. However, if you lose your appeal, you may be required to pay Border Force legal costs.

Tactical decisions regarding either objecting to a penalty or appealing a penalty are a key consideration and should be taken with the benefit of specialist legal advice.