Consultation outcome

Consultation document: Clandestine Entrant Civil Penalties (accessible)

Updated 13 February 2023

This was published under the 2019 to 2022 Johnson Conservative government

New Plan for Immigration

About this consultation

This consultation is aimed at:

• anyone who drives a vehicle which is going to enter the UK, including private drivers and commercial drivers
• anyone who is the owner or hirer of a vehicle which is going to enter the UK
• anyone who is the owner, hirer or operator of a detached trailer which is going to enter the UK
• Anyone who is interested in the Clandestine Entrant Civil Penalty Scheme

Duration

This consultation begins on 18 July 2022 and ends on 12 September 2022.

Response paper

A response to this consultation exercise will be published online.

Consultation principles

The principles that government departments and other public bodies should adopt for engaging stakeholders when developing policy and legislation are set out in the consultation principles.

Introduction

Illegal migration is facilitated by serious organised criminals exploiting people and profiting from human misery. The same criminal gangs and networks are also responsible for other illicit activity ranging from drug and firearms, trafficking to modern slavery and serious violent crimes. A significant number of people, who arrive in the UK through concealment in vehicles by tourist and freight transport routes, have had their entry illegally facilitated by organised criminal gangs. Despite extensive work with overseas partners to strengthen our shared borders and enhance our strategic partnerships, this method of entry continues and endangers the lives of those involved. In many cases, this is a result of criminal gangs and opportunistic migrants taking advantage of unsecured or poorly secured vehicles to smuggle people or enter the UK clandestinely.

For these reasons, the UK operates a scheme to tackle illegal migration called the Clandestine Entrant Civil Penalty Scheme. The Scheme means that when clandestine entrants are found in a vehicle, a penalty of up to £2,000 per entrant can be imposed on any responsible person connected to the vehicle in question, up to a maximum aggregate of £4,000 in total per clandestine entrant. A responsible person is defined as the owner, hirer or driver of the vehicle. The Scheme applies to all vehicles, commercial and private, as well as anything that is designed to be towed or carried by a vehicle (such as trailers, caravans, containers etc). In circumstances where the driver is employed by the vehicle owner or hirer, such as an HGV, the employer is also liable for the driver’s penalty. The penalty level has not been changed for nearly twenty years.

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.

The 2022 Act also 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.

Before any of these regulations can be made under the 2022 Act, the Secretary of State has a statutory duty to consult with such persons as she considers appropriate. The government has also agreed to consult on the level of penalty for the new offence of failing to adequately secure a goods vehicle, with a view to bringing into operation a new Level of Penalty: Code of Practice. The Secretary of State is now discharging these obligations through this consultation, which is designed to seek the views of all interested parties on these issues and others connected with the Scheme.

The consultation is aimed at:

• anyone who drives a vehicle which is going to enter the UK, including private drivers and commercial drivers
• anyone who is the owner or hirer of a vehicle which is going to enter the UK
• anyone who is the owner, hirer or operator of a detached trailer which is going to enter the UK
• anyone who is interested in the Clandestine Entrant Civil Penalty Scheme

The consultation is aimed at anyone in the UK and at international drivers and businesses.

Engagement events

Alongside this consultation document, the Home Office will be running a series of engagement events to explore these issues in more detail. If you would like to join an engagement event, please email:

clandestineentrantcivilpenaltyconsultation@homeoffice.gov.uk

The closing date to express an interest in joining an engagement date is 19 August 2022.

We welcome your views and look forward to hearing from you.

The proposals

Firstly, in respect of the existing offence of carrying a clandestine entrant, we would like you to tell us what you think the regulations should say about the steps to be taken to secure a vehicle from access by a clandestine migrant.

Secondly, in respect of the existing offence, we are considering the circumstances in which such a penalty should be imposed. The 2022 Act means that it will no longer be a statutory defence for someone to say that the driver had an effective system in place for preventing the carriage of a clandestine entrant. The only statutory defence will be that the driver was acting under duress, which is to say that somebody was forcing them to carry the clandestine entrants later found. In all other cases, the presumption will be that a penalty will be issued, unless this is not in the public interest because there are exceptional circumstances. We would like to hear your views as to what these circumstances could be.

Thirdly, in respect of the existing offence, we are considering increasing the maximum penalty from £2,000 per entrant and the aggregate penalty from £4,000 per entrant. We are considering making this change to ensure that the level of penalty provides enough of an incentive to comply with the requirements of the scheme. We would like to hear your views about this proposal. We would also like to hear your views on whether there should be higher levels of penalties where there are aggravating circumstances and lower levels where there are mitigating circumstances, and what these circumstances should be. For example, although it will not be a statutory defence for someone to say that the driver took reasonable steps to secure their vehicle, this could be a mitigating factor to reduce the level of their penalty.

Fourthly, in respect of the new offence of failing to adequately secure a goods vehicle, we would like to hear your views about what the regulations should say about what it means for a vehicle to be adequately secure against unauthorised access and the steps to be taken to secure that goods vehicle.

Fifthly, in respect of the new offence, we would also like to hear your views on what the maximum and aggregate penalty should be and whether there should be higher levels of penalties where there are aggravating circumstances and lower levels where there are mitigating circumstances, and what these circumstances should be.

Finally, we also wish to use this consultation exercise to ask you about the Civil Penalty Accreditation Scheme for Hauliers.

Together, these measures aim to help to drive up levels of compliance with the Scheme, and encourage greater numbers of responsible persons to take more responsibility for countering the threat that insecure vehicles present to UK border control. This will help to improve efforts to protect our border, to safeguard those vulnerable individuals who are placed in dangerous conditions and to stop those who seek to evade our border controls.

Contact details and how to respond

Enquiries (including requests for the paper in an alternative format) can be sent to:

Clandestine Entrant Civil Penalty Scheme Consultation
Home Office
2 Marsham Street
London SW1P 4DF

email: clandestineentrantcivilpenaltyconsultation@homeoffice.gov.uk

How to respond

Please respond online by 12 September.

Alternatively, please send your response by 12 September to the above address.

Additional ways to respond

A series of stakeholder meetings is also taking place. For further information please use the ‘Enquiries’ contact details above.

Complaints or comments

If you have any complaints or comments about the consultation process you should contact the Home Office at the above address.

Extra copies

Further paper copies of this consultation can be obtained from the above address and this consultation is also available online. Alternative format versions of this publication can be requested by email: clandestineentrantcivilpenaltyconsultation@homeoffice.gov.uk.

Representative groups

Representative groups are asked to give a summary of the people and organisations they represent when they respond.

Confidentiality

Information provided in response to this consultation, including personal information, may be published or disclosed in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000 (FOIA), the Data Protection Act 2018 (DPA), the UK General Data Protection Regulation (UK GDPR) and the Environmental Information Regulations 2004).

If you want the information that you provide to be treated as confidential, please be aware that, under the FOIA, there is a statutory Code of Practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence. In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Home Office.

The Home Office will process your personal data in accordance with the DPA and in the majority of circumstances, this will mean that your personal data will not be disclosed to third parties.