JMW’s Commercial Road Transport team has successfully challenged a clandestine entrants civil penalty issued to its client, an Irish haulage company, in one of the first appeals involving the ‘new’ Section 31A offence of ‘failing to secure a goods vehicle against unauthorised access’.

Section 31A - Failure to Secure a Goods Vehicle

When the clandestine entrant civil penalty scheme was overhauled with effect from February 2023, Section 31A of the Immigration and Asylum Act 1999 introduced a new offence of failing to secure a goods vehicle (which includes unaccompanied trailers) against unauthorised access - with a potential maximum £6,000 penalty for the operator and a potential maximum £6,000 penalty for the driver (for which the operator is also liable), i.e. a maximum potential £12,000 penalty.

The new offence means Border Force may impose a civil penalty on an operator and a driver where they consider the vehicle/trailer is not adequately secured and the operator and/or driver failed to comply with the regulations relating to the checking and securing of the vehicle/trailer - regardless of whether clandestine entrants have gained entry to the vehicle/trailer.

Cancellation of Penalty

In this case, JMW’s team (Laura Hadzik, Partner and Head of Commercial Road Transport, and Rachel Airriess, Trainee Solicitor) and Matthew Howarth, Counsel of Lincoln House Chambers, were instructed by an Irish haulage company following an incident whereby Border Force alleged that one of the company’s trailers was found to be ‘unsecured’ when it was inspected at the Port of Liverpool following its arrival by ferry from Dublin.

The trailer had been dropped at Dublin Port by one of the company’s vehicles. At that time, the driver had completed the relevant clandestine entrant security checks of the trailer and had recorded details of these checks on a vehicle security checklist. The trailer had then travelled unaccompanied by ferry to Liverpool Port.

Some time later, Border Force’s Clandestine Entrant Civil Penalty Team inspected the trailer within Liverpool Port compound. No clandestine entrants were found to have gained access to the trailer, but Border Force issued a civil penalty to the company (as the owner of the trailer) under Section 31A on the basis that the company had failed to adequately secure the trailer to prevent unauthorised access.

JMW’s team were instructed to appeal the penalty and, following Border Force’s consideration of the evidence and the detailed legal representations submitted by JMW’s team, they cancelled the penalty in its entirety and agreed to pay the operator’s legal costs.

Expert Legal Representation

JMW’s Commercial Road Transport team has market-leading expertise advising international haulage and coach operators in relation to clandestine entrant civil penalties and has a proven track record for successfully securing the cancellation of penalties. 

This case illustrates the benefit to operators of seeking specialist legal advice from sector-specific experts following any incident involving Border Force and the clandestine entrant civil penalty scheme - even in cases where relatively modest (yet still unjust!) penalties are imposed.