Britain is in the midst of an illegal immigration crisis. Drivers, operators and owners of vehicles which cross the UK border are expected by the Government to do their part by securing vehicles to prevent access by clandestine entrants. In the face of severe political pressure, the longstanding Carriers’ Liability Regulations 2002 (‘the Regulations) were significantly amended in 2023 to impose greater responsibility onto drivers, operators and owners, with substantial penalties for those found in breach. Many drivers and operators are now inadvertently falling foul of the Regulations and facing very large penalties as a result.
The process begins when clandestine entrants are found within a vehicle during a customs check or other search. These searches usually (but not always) take place at the UK border. If clandestine entrants are found they are detained by Border Force. The driver is usually permitted to continue their journey once contact details have been provided.
An IS11D is a letter from UK Border Force (‘UKBF’) to then notify a Responsible Person (i.e. the driver, operator and/or owner of a vehicle) of an potential breach of the Regulations and liability to a penalty under section 32 of the Immigration and Asylum Act 1999 (‘the Act’). The letters typically include a list of questions, the responses to which will be taken in consideration by UKBF when deciding whether or not to impose a penalty under the Act.
While the liability under s.32 may specifically include the vehicle owner, hirer and driver; recipients should note that under s.32(4)(a) where any penalty is imposed on a driver who is an employee of the vehicle’s owner or hirer, the employee and employer shall be jointly and severally liable for any penalties imposed. It is always vital for employers to confirm:
- Who was the driver of the vehicle on the date in question?
- Was the driver an employee of the company on the date in question?
- Who owns the vehicle?
Separate letters are sent to each Responsible Person (i.e. owner, hirer and driver). Separate responses will be required and those providing legal advice will need to consider after taking instructions if there is any risk of conflict between the driver, owner or hirer.
A list of documents should be compiled in order to draft a complete response to the questionnaire. First and foremost among those is the vehicle checklist. This document is vital. It acts as a guide to the Regulations and if completed properly during the journey it will provide a strong defence to an alleged breach. This includes all of the necessary checks to be made and details to be included on the form at every stop (not just at loading!). On the other hand, where the checklist is improperly filled out or incomplete, it may be difficult to contest that the driver or operator should not be found in breach or liable to penalty.
Defences
Defences to liability are set out in section 34 of the same Act. Whether any of these apply will depend upon the driver and operator’s accounts given in instructions:
- 34(2): the Responsible Person was acting under duress;
- 34(3): the Responsible Person did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was concealed in the vehicle, an effective system for preventing the carriage of clandestine entrants was in operation in relation to the vehicle; and the person operating that system did so properly.
Decision on Liability
Once the IS11D responses have been sent to UKBF, the typical delay between response and decision is around 6 months. UKBF will provide separate decision letters for each Responsible Person with brief reasons for any decision on liability.
Level of Penalty
Where UKBF do find liability, penalties are imposed in line with the Level of Penalty: Code of Practice. For carrying Clandestine Entrants, the maximum penalty is £10,000 per Responsible Person per clandestine entrant (with a starting point of £6,000). Reductions to the penalty may apply depending upon various factors as set out in the Code. As stated above, the Owner, Operator and Driver share joint liability for the total penalty and so total liability can often be far greater than first appears.
Hauliers and Carriers should always consider membership of the Civil Penalty Accreditation Scheme which attracts a 50% discount to the starting point of the penalty. Other mitigating factors may apply and will be considered on a case-by-case basis.
Decision and Appeal
Where a notice of penalty has been received there are three options:
- To pay the penalty; that will be an end to the matter. Time limit: 60 days from date of decision notice.
- To send a letter of objections to UKBF to request reconsideration regarding liability and penalty. Time limit: 28 days from date of decision notice.
- To appeal to the county court. Any such appeal will be a re-hearing of UKBF’s decision before an independent judge. Time limit: 28 days from date of decision notice.
In our view in most cases it is unlikely that UKBF would agree to reverse or change their own decision and any adverse decision on review by UKBF may be harmful to the prospects of success if a decision is made to appeal to a court. In our view and in these circumstances it is usually better to proceed directly to appeal.
Janes Solicitors have advised drivers and operating companies regarding these Regulations. If you receive an IS11D letter, or have received a notice of penalty and would like to consider appeal, please do not hesitate to get in touch.
