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10th March 2011, Page 22
10th March 2011
Page 22
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Page 22, 10th March 2011 — Entry level
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Which of the following most accurately describes the problem?

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precautions

The number of illegal immigrants caught in Calais is falling, but operators should continue to take precautions to stop their vehicles being boarded

Words: Peter Woodhouse Operators must have been pleased by news towards the end of 2010 that the number of UK-bound immigrants caught by border controls in Calais had dropped by 80% in the preceding 12 months. A drop in the apprehension rate usually signiies fewer successful illegal immigrants. If this is correct, it is good news, but the industry should not become complacent about the issue.

It is not just operators in UK coastal areas that are affected, as illegal immigrants can turn up anywhere in the country in almost any type of vehicle. Neither is it just vehicles taking statutory breaks in French coastal towns that need to exercise caution, as illegal immigrants have been known to enter vehicles parked overnight up to 70 miles from Calais.

Operators will recall that it took the previous Labour government a couple of attempts to get the present system in place. Under Home Secretary David Blunkett, the government introduced rules that the UK courts found to be too harsh and unfair. The government appealed against the initial ruling, but the higher courts upheld the initial ruling, forcing a change in the law.

The current law can be found in the Asylum and Immigration Act 1999 (the Act) and regulations made under the Act, being the Carriers Liability Regulations 2002 (the Regulations). Broadly, the Act provides that if a driver or haulier is responsible for an illegal immigrant, then an offence is committed. This is subject to various defences, and is governed by a statutory Code of Practice compliance that will reduce the chances of legal proceedings, and/or the likely ine.

Section 32 of the Act provides that the UK Border Agency (UKBA) can impose a penalty notice on a haulier and/or a driver if they are “responsible for a clandestine entrant” . A “clandestine entrant” is deined in the Act, and the deinition is rather as you would expect – the key requirement being that someone is concealed in a vehicle with a view to claiming asylum or evading immigration. The maximum penalty is set by the regulations, currently at £2,000 per clandestine entrant. This amount can be ordered against both the haulier and driver, giving a potential maximum of £4,000 per entrant.

There are a number of defences available, including acting under duress. However, the main one that will interest carriers is that it is a defence to show that: it did not know (and should not have known) about the clandestine entrant; there was an effective system for preventing the carriage of clandestine entrants; and that on the occasion in question the person or persons responsible for operating that system did so properly.

Have you got a defence?

Put simply, if you know about it, there is no defence. If you do not know about it and there is no proper system, there is still no defence. If you do not know about it, there is a proper system, but the system breaks down, there is still no defence. However, if you do not know about it and there is a proper system, which works on that occasion, there is a defence.

Clearly the key for carriers is to have a proper system and to check that it operates on every trip – but this is no easy task. As the issue has become more high proile and more resources have been dedicated to stopping stowaways, so too has the ingenuity of those seeking to enter illegally. For example, some operators report having TIR cables and padlocks cut through then replaced so as to evade normal visual inspection.

The UKBA website gives further guidance. Drivers should be trained in the use of the security systems and be given written instructions, maybe with separate checklists to follow. They should be used to this kind of system as they do it daily with their defect checks. Operators should issue, and drivers carry, spare security devices. Driver training must be documented. While hauliers might ind it next to impossible to actually check to see if some security systems are operated, they can and should make detailed checks of the paperwork on the return of the driver and vehicle.

Drivers have an obligation to report suspicious activity, but not to put their personal safety at risk. Company procedures should make that clear.

The Act and regulations also deal with a number of procedural matters, including time limits for the issue of an objection to a penalty notice. This limit is 28 days and is usually strictly enforced. Operators who wish to challenge a notice should act quickly. An appeal may also be made, regardless of whether an objection to the penalty has been lodged. An appeal may be made on the basis that there was no liability or that the penalty was too high.

In summary, while we seem to no longer be suffering the attempted mass inlux of illegal entrants of a decade ago, there is still a serious problem both inancially for drivers and operators and for the safety of drivers. If the drivers and hauliers follow the clear guidance available to them, some, if not all, of these risks can be reduced. ■

● Peter Woodhouse is a solicitor specialising in transport law based in Bath. peterwoodhouse@stoneking.co.uk

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Locations: Bath

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