What is a clandestine entrant?
A clandestine entrant is a person who enters the UK concealed in a vehicle in order to evade border controls. Operators of commercial vehicles entering the UK are required to implement effective systems to prevent clandestine entrants stowing away in their vehicles.
If clandestine entrants are discovered in a commercial vehicle, the operator and driver each face a separate civil penalty of up to £2,000 per entrant. These cases normally involve multiple entrants within a vehicle and as such the penalties imposed can be significant. Where penalties are unpaid or unlikely to be paid, the UK Border Force can impound vehicles.
There is a defence to incurring a civil penalty. To rely on the defence an operator/driver must demonstrate the following:
- They did not know, nor had reasonable grounds to suspect, that clandestine entrants were concealed in the vehicle
- An effective system was in place for preventing the carrying of clandestine entrants
- That system was being properly operated at the material time
Even where the defence cannot be relied upon however, the amount of the penalty imposed can be challenged depending on the specific circumstances of the case. Excessive penalties can be challenged in the County Court.
If you are facing a fine, it is important to obtain legal advice quickly. The first indication that you may be facing a fine will be when you receive a Notice of Liability to a Penalty from the UK Border Force Civil Penalty Central Administration Unit. Our specialist lawyers can assist you in making representations at this early stage and possibly avoid incurring a penalty at all. You only have 28 days to make these representations to the UK Border Force in the hope of avoiding a fine. If you have received a Notice of Liability, contact our specialist lawyers immediately.
If, after considering your representations, the UK Border Force nevertheless decides to impose a fine, then you will receive a Notice of Penalty and an IS11 Form. This will tell you how much you are being fined and will invite you to either file a Notice of Objection with the Secretary of State or lodge an appeal to the County Court within 28 days.
The Notice of Objection is your last opportunity to try and challenge the fine directly with the UK Border Force. If you have received a Notice of Penalty and wish to challenge it, then our specialist lawyers can prepare the Notice of Objection on your behalf and fight to try and have the fine reduced or rescinded completely. Contact us immediately for assistance.
Once the UK Border Force has considered your Notice of Objection, they will issue you with a Determination of Objection. This is their final decision and, if they do not rescind or reduce your fine, then your only way of then challenging the fine is by appealing to the County Court. This is where a judge considers the case and decides whether the fine should have been imposed or if the fine is too high. If the judge thinks that the fine should never have been imposed, then he or she will quash the fine completely. Alternatively, if the judge decides that the fine was rightly imposed but is too high, then he or she can reduce the fine accordingly.
If you feel that the fine has been wrongly imposed or if you feel that the fine is excessive in the circumstances of your case, then we can appeal to the County Court on your behalf. If the case proceeds to a hearing, then we can represent you at the hearing. Sometimes, it is also possible to reach a settlement with the UK Border Force before the appeal hearing is heard by the judge. It may be possible to negotiate a reduced penalty as part of this process.
If one of your vehicles has been found to contain clandestine entrants and you face action by the UK Border Force, you should seek specialist legal advice as soon as possible to protect your interests. To give you certainty over costs, we can offer fixed-fee costs for each of the above steps. For a no-obligation discussion with one of our specialist lawyers, please call 01616 966 229.
See our top 10 tips for avoiding and challenging penalties for clandestine entrants.
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