The haulage industry has long been a target for government in its apparent attempts to combat illegal immigration, with the Carriers’ Liability (Amendment) Regulations 2023 being another measure to pass the buck to the truck for illegal immigrants. The stakes are getting ever higher in the wake of the migrant perma-crisis. Many operators feel like they are being ‘scape-goated’, in a campaign in which it is important for measures to be visible and demonstrable to the electorate.
The 2023 Regulations have dispensed with the previously applicable Code of Practice and have made more onerous the requirements on ‘responsible persons’, including owners (the hauliers) and drivers personally. Enshrined in statute are now the ‘standard checks’ which are required to be made, and failing to properly record these can attract the significantly increased penalties.
We have seen a marked increase in UK Border Force (UKBF) activity and readiness to impose fines on both the drivers and hauliers. This has, of course, coincided with the inclement winter weather conditions for Channel crossings; a pattern which is likely to be repeated annually.
What could it cost me?
There is no need for UKBF to actually find a ‘clandestine entrant’; fines for ‘just’ failing to adequately secure vehicles are now up to £6,000 per responsible person. Moreover, activity has not been confined to the Channel ports – all ports of entry are fair game. We have had reports of fines imposed for empty trailers crossing the Irish sea, where the security requirements were deemed to have missed the mark.
When a clandestine entrant is found, the fines are now up to £10,000, per responsible person (driver and company), per clandestine entrant. So, potentially up to £20,000 per illegal immigrant discovered.
Can I appeal a decision?
Objecting to and, ultimately, appealing these penalties before the Courts is not straightforward and the amendments to the regulations have given rise to ambiguity and contradictory legal argument. However, to protect their business; finances; reputation; and, above all, their already slim margins, logistics companies need to ensure that these are being challenged wherever possible.
What can we do?
Despite the draconian standards imposed by the regime, the amendments may yet provide an answer to at least the issue of the ‘double penalty’ for the haulier.
UKBF routinely seek to fine the company and the driver for the same driver’s error. That means the company is effectively fined twice for the error of its employee. This is because the company is ‘jointly and severally’ liable for the driver’s penalty, if the driver does not pay.
However, the 2023 amendments appear to separate the responsibilities of each responsible person. There is therefore presently an Appeal in progress. It is seeking to establish that, where there is a driver error, although the company may ultimately have to pay the driver’s fine, it should not also be fined separately in addition to that (unless, of course, there are additional breaches of its own making). If the Appeal is successful, coupled with the fact that the driver’s penalty is means-tested, it may be a welcome reprieve for innocent hauliers.
The Civil Penalties Accreditation Scheme is a means of seeking to mitigate the effects of the regime in advance. Approved members benefit from discounted penalties in the event that fines are imposed. Prevention is, of course, better than cure. An audit of systems in place, by specialist lawyers in conjunction with industry professionals, could significantly bolster any defence predicated on compliance with the requirements of the legislation.
If you are involved in a dispute relating to this issue, please get in touch using the form below.
Costas Nicolaou
Dispute Resolution Senior Associate Solicitor
Costas is a Senior Associate Solicitor within our Dispute Resolution team and has built a reputation for his pragmatic approach and commitment to securing optimal outcomes for his clients.
