On 18th July the government launched an industry consultation on proposals for tougher penalties to tackle illegal migration, including increasing the maximum penalty for hauliers and vehicle drivers who are found carrying a clandestine entrant from £2,000.
During the financial year 2020-2021, there were 3,145 incidents where clandestine entrants were detected concealed in vehicles, despite the COVID-19 pandemic causing a lower volume of traffic. This rose to 3,838 incidents during the financial year 2021-2022. The government is therefore concerned that the Scheme is not having enough of an effect, as drivers are not taking the steps required to secure vehicles, and clandestine entrants are continuing to use these routes to enter the UK.
It is for this reason that the government committed to review and overhaul the Scheme as part of its New Plan for Immigration. A public consultation on the New Plan for Immigration was held from 24 March to 6 May 2021. The government then introduced changes to the Scheme through the new Nationality and Borders Act 2022.
The changes under the 2022 Act include narrowing the statutory defences available to those who have carried a clandestine entrant. This means that where a clandestine entrant has been carried, it will no longer be a statutory defence to say that an effective system for preventing the carriage of clandestine entrants was in operation, and that person may still be issued with a penalty. However, if the person has complied with regulations to be issued by the Secretary of State, which will require them to take actions to secure their transporter, report unauthorised access and keep records to show they took these steps, this could mean the level of the penalty is reduced.
Whilst many of the penalties can be levied against both the private motorist and commercial driver there is a new civil penalty impacting specifically on the latter.
The 2022 Act introduces a new civil penalty for failing to adequately secure a goods vehicle, regardless of whether a clandestine entrant has been found. The Secretary of State will also make regulations which set out what is meant by a goods vehicle being adequately secure and the required vehicle security standards that will determine whether liability arises under this new offence. These may include vehicle checks, reporting unauthorised access and retaining records to demonstrate steps taken.