Nowhere What should you do if a driver unwittingly transports
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clandestines into the country? ,voras: unns I !man For many people fleeing persecution or seeking better economic opportunities, breaking into UK-bound lorries can be just one more hurdle to overcome in a long line of dangerous obstacles. But for the driver and haulier involved, the presence of stowaways in their vehicle can be the beginning of a nightmare that could end in fines worth thousands of pounds.
Often the UK Border Agency (UKBA) finds people hidden in lorries before the vehicle has left the port or the juxtaposed controls on the continent. But it isn't unusual for stowaways to reach the UK undetected. Just last month, the UKBA warned hauliers about the lengths to which illegal immigrants will go, after two separate incidents in which men were found inside lorries in England.
According to Anton Balkitis, a partner at Rothera Dowson solicitors, the first thing a driver should do if they suspect stowaways are inside their LGV is contact the authorities: "They shouldn't approach them; they should stay in their cab and call the local police. The police will take the details of the driver and the driver's company, and inform the UKBA about the clandestine entrants."
Some drivers choose to open their doors and let the stowaways out, to avoid repercussions and make their lives easier. Balkitis warns against this: "By doing so there could be far more serious penalties, including criminal prosecution for facilitation." The advice from Tim Culpin, a partner at Aaron and Partners LLP, is that if the driver knows there are clandestines in the vehicle while it is in motion, he or she should try not to stop. "He should try and keep moving while arrangements are made to meet the authorities so that the stowaways can be detained, once the vehicle stops they are likely to run for it," he says.
Always co-operate fully with the UKBA The UKBA is then likely to write to both the driver and the company, requesting information about the security system operated on the day the stowaways were found. How the company responds to this will affect whether or not it incurs a penalty. "The haulier needs to have a robust security system in place to prevent the carriage of clandestine entrants," explains Balkitis.
"If the UKBA finds clandestine entrants in a vehicle at UK immigration controls at a port either within the UK or in mainland Europe, they will want to interview the drivers about the security system they were using to prevent people hiding in the vehicle on that day. It's important that they can demonstrate they have complied with the code of practice [see box]. They are also likely to interview the haulier, or owner of the vehicle, about the systems as well," he adds.
Essentially, the UKBA wants to know that drivers have been instructed and trained adequately, and that they can demonstrate that they did all they could to secure the vehicle, by checking it and recording what was done throughout their journey.
"Paperwork is paramount," adds Balkitis. "Drivers must have, in the vehicle, a document detailing the system that is being operated, as well as a report detailing what checks have actually been carried out, and these checks should have been witnessed by a third party who has signed to say they have done so."
Whether or not a financial penalty is levied on the firm The UKBA can also detain a vehicle if an outstanding fine is not paid, or if a senior officer issues an IS11 form, which provides details of the fine to be levied, and is concerned that the company will not pay it within the 60-day time limit.
"In both cases, the Civil Penalty Unit [at the UKBA] will release the vehicle only when it has received payment of all outstanding fines and any costs incurred as a result of the detention," says Balkitis. And what should a haulier do if it feels it has been unfairly dealt with? "Consider lodging a notice of objection in the first instance," he adds.
"In many cases, the UKBA will waive or discount penalties following this review. If this isn't successful, there is still the opportunity to run a substantive defence in the county court." • • 19ffi1!1l IJ1I1 A Code of practice was issued by the Home Office in accordance with the Immigration and Asylum Act 1999, and explains the steps to be taken by drivers and CV owners.
For example, vehicles must be checked regularly from collection to delivery to ensure no persons have become concealed. A documented record that details the system for checking must always be produced to the UKBA along with records showing compliance with the system.
Balkitis advises that checks carried out by drivers are witnessed and shown on the documentation. Without these documents, it is difficult to put forward adequate objections.
See: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/ aboutus/transportindustry/civilpenaltycodeofpractice.pdf REGULATIONS The Immigration and Asylum Act 1999 creates the carriers' liability. The law was challenged by Rothera Dowson and others because originally it imposed a fixed sum of £2,000 per clandestine entrant. Balkitis says that the scheme was considered to be "legislative overkill" and contrary to human rights. As a consequence, the legislation was amended to allow for more flexibility as to the level of penalty imposed.
Further information 1 As well as the code of practice, the Home Office offers advice to commercial operators that can be accessed via these links: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/ workingwithus/lorry-leaflet http://www.ukba.homeoffice.gov.uk/business-sponsoratransportindustry/ vehicleoperators/ http://www.ukba.homeoffice.gov.uk/business-sponsoratransportindustry/ vehicleoperators/whatifclandestinediscovered/