From maximum fines to mitigation: understanding clandestine immigration penalties

The UK immigration system has been challenged through the increase of clandestine entrants seeking to enter through trucks, lorries and cars. In February 2023, in response to the influx of clandestine entrants, the Government implemented stricter measures to prevent and deter illegal entry into the country through high civil penalties for those who knowingly or unknowingly transport clandestine entrants. There has been a sharp increase of transportation companies who have been charged with civil penalties due to clandestine entrants entering the UK through their transport systems. Since February 2023, the significant increase in civil penalties has led to a growing number of companies and individuals struggling to pay the imposed financial penalties.

What is a clandestine entrant?

A clandestine entrant is a person who enters the UK concealed in a vehicle to evade border controls. This includes individuals who arrive in the UK hidden in a vehicle, ship, aircraft or by rail. It also includes those who pass or attempt to pass through immigration control concealed within transport they are using to enter the UK. The key element of a clandestine entrant is the intention to avoid detection through eluding Border Officers and bypassing legal entry procedures and requirements to enter the UK without having the correct immigration status in place to legally.

Civil Penalties for carrying clandestine entrants

The Home Office imposes significant fines on those who have been found responsible for transporting clandestine entrants. The maximum penalty is £10,000 per clandestine entrant for each responsible person, these fines can be imposed on drivers, vehicle owners, and hirers, both jointly and separately, depending on the circumstances of each case. This means that penalties can quickly increase into thousands of pounds, especially if multiple entrants are discovered.

It is also important to note that for vehicles carrying goods, drivers and owners can both face fines up to £6,000 for a vehicle which has not been properly secured, even if no clandestine entrants are found. The implication of a penalty being imposed even if there are no clandestine entrants highlights the importance of routine checks and ensuring that the security system, locks and seals are operating correctly.

Following a Freedom of Information request made to the Home Office by our firm, the total figure in pounds (GBP) the Home Office received from civil penalty charges in relation to the discovery of clandestine entrants under s.32 of the Immigration and Asylum Act 199 for the period 2021 – 2024 was £27,468,298.90.

Penalty amounts

• First Time Offender – As a first-time offender the starting point of the penalty imposed is £6,000 per clandestine entrant found.
• Repeat Offender – If you have been issued with a civil penalty in the last 5 years prior to the date of the incident, the starting point of the penalty is £10,000 per clandestine entrant found.

The Government have amended their penalty amounts to change depending on the responsible persons history of offence. This approach aims to deter and impose stricter penalties for repeat offenders to detriment them more severely than first-time offenders as well as ensuring that offences are not reoccurring.

Who is liable to pay the penalty charge and what is joint liability?

Joint and severally liable is when a penalty is imposed on both the driver and the vehicle owner/company who hired the driver.

Example 1:

The driver is an employee of the haulage company and clandestine entrants have been found in the vehicle – both the driver and the company are joint and severally liable regardless of whether the company receives a second civil penalty addressed to only them.

Example 2:

The driver has a service contract with the haulage company and clandestine entrants have been found in the vehicle – both the driver and the company are joint and severally liable for the drivers civil penalty regardless of whether the company receives a second civil penalty addressed to only them.

Reductions and mitigating factors

The Home Office considers several factors when determining the civil penalty amount to impose. The following reductions and mitigating factors can lead to substantial reductions to the proposed penalty.

1. Civil Penalty Accreditation Scheme

The Civil Penalty Accreditation Scheme is run by the UK Border Force and allows hauliers to join and ensure that they have implemented effective systems and practices to reduce the risk of clandestine entrants within their vehicles. A pre-existing membership with the Civil Penalty Accreditation Scheme can lead to significant reductions in penalties as the Government is aware that you have been pro-active in ensuring that you have taken the appropriate steps to maintain and adopt the best practices and highest standards of security to prevent the transport and migration of clandestine entrants. Members of this scheme may be eligible for a 50% reduction on the original penalty amount.

2. Compliance with Security Regulations

As a company or an individual, if you can demonstrate that you have been complying with all of the security measures and practices in place, the Government may apply a 50% reduction if the vehicle was effectively secured and all practices were followed. This means that if you can prove you took all reasonable steps and precautions to secure your vehicle, you can have your fine reduced by half, even if a clandestine entrant is discovered within the vehicle.

3. Financial Means Testing

The Government will apply financial means testing to the final reduced figure. Financial means testing is applicable to both individuals and the company/owner and different factors are considered for each party. Financial means testing is not an automatic reduction which is applied and must be explicitly requested by those who have been charged with a civil penalty. Once a request has been made, specific documentation must be provided which allows the Government to assess whether the penalty imposed is far greater than what the recipient can afford.

The financial means testing element acknowledges that excessive fines could potentially bankrupt individuals or small businesses, which may not be in the public interest. The request to be means tested could potentially lead to a reduction in the penalty amount based on the documents provided and the ability to pay.

4. Objection and Appeal Process

You are able to apply for an objection against the civil penalty received if you believe that you have a good reason to do so. You must submit your objection within 28 days of receiving the penalty notice and state the reasons why you are objecting to the penalty notice, whether you are proposing an alternative payment plan and provide all supporting documents. You are also able to submit an appeal against the civil penalty you have received.

There is also an appeal process for those who receive a civil penalty. If you submit an objection and you are not satisfied with the outcome, you can still submit an appeal.

• If you have already objected the civil penalty, your appeal must be submitted within 28 days of the date of outcome of the objection.
• If you did not object the civil penalty, your appeal must be submitted within 28 days of the initial letter which was received containing the notice of the penalty.
• Any appeal made against the civil penalty must be filed using the specified form.

How can we help

The tough approach towards clandestine entrants has left haulage companies and drivers facing financial ruin. It is important to seek legal advice and consider implementing effective security and compliance measures, joining the accreditation scheme and ensuring drivers are aware of how to carry out proper checks.

At Edwin Coe, we regularly assist with civil penalties and advising on navigating through the position you may find yourself in. Our expert immigration team are able to support throughout the process to ensure that the best outcome is achieved.

Frequently Asked Questions (FAQs)

• How much is the current maximum penalty for transporting a clandestine entrant?
  The maximum penalty is £10,000 per clandestine entrant for each responsible person.
• Can I be fined if no clandestine entrant is found in my vehicle?
  Yes, for vehicles which are transporting goods and are poorly secured, drivers can face fines of up to £6,000 even if no clandestine entrant is found.
• Who can be held responsible for transporting clandestine entrants?
  Drivers, vehicle owners, and hirers can all be held responsible, either jointly or separately, depending on the circumstances. 
• What is the Civil Penalty Accreditation Scheme?
  It’s a Government run scheme that educates haulage companies on the importance of security and practices to prevent clandestine entrants from gaining unauthorised access to vehicles. Participating in the scheme can lead to significant reductions in penalties. Members of the scheme may be eligible for a 50% reduction on the original penalty amount. 
• How long do I have to object to a civil penalty notice?
  You have 28 days from receiving the penalty notice to submit an objection. 
• I have received a civil penalty notice, what now?
  As a first-time offender who has been penalised by the Government, it can be very overwhelming. It is important to know that as an offender, you can request a reduction in the penalty which has been imposed along with the right to request to that you are financially ‘means tested’. Our dedicated immigration department is able to review your matter in depth and advise you/your company on whether you would be eligible for any of the reductions and navigate you through the entire process to achieve the best outcome.
• Can I appeal if I’m not satisfied with the outcome of my objection?
  Yes, you can file an appeal to the County Court within 28 days using the specified form.
• Are there any ways to reduce the penalty amount?
  Yes, reductions can be applied and you can request the Government to financially means test you/your company.
• I remember the penalty charges being much lower. How recently were the penalty amounts changed?
  The Government implemented significant changes to the clandestine entrant civil penalty scheme. The fines/penalties increased from £2,000 to £10,000 per entrant in February 2023 and the sharp increase reflects the Government’s commitment to working on clandestine entrants and aiming to deter the facilitation of illegal entry.
• What should I do to minimise the risk of transporting clandestine entrants?
  As an individual you should ensure that you complete all checks in a timely manner and immediately report any damage to the vehicle or any suspicions you have that there may be clandestine entrants in the vehicle. As a company/owner, you must implement rigorous security measures, join the Civil Penalty Accreditation Scheme, maintain proper documentation and promote correct procedures and ensure all staff members are trained in completing checks and all security procedures.
• I have received a civil penalty notice, can I pay in instalments?
  You can request to make the payment of the civil penalty in instalments or make alternative proposals for payments when you make an objection to the civil penalty notice.
• What are my options now that I have been charged with a penalty?
  There are various reductions which could apply to your circumstances. Our expert immigration department regularly advises and assists companies and individuals on civil penalty charges.

If you would like to discuss an ongoing immigration issue or if you have received a civil penalty notice for yourself or your haulage company, please do not hesitate to contact our Head of Immigration, Sundeep Rathod.