Consultation outcome

Government response

Updated 13 February 2023

Introduction and contact details

This document is the post-consultation report for the consultation paper, ‘Clandestine Entrant Civil Penalties’, which was published on Monday 18 July 2022.

It will cover:

• the background to the consultation
• a summary of the consultation responses
• the next steps following this consultation.

Further copies of this report and the consultation paper can be obtained by emailing:

clandestineentrantcivilpenaltyconsultation@homeoffice.gov.uk

Complaints or comments

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

Background

The consultation paper ‘Clandestine Entrant Civil Penalties’ was published on 18 July 2022. It invited comments on proposals to reform the Clandestine Entrant Civil Penalty Scheme (‘the Scheme’).

The Scheme has existed since 1999. It means that a penalty can be levied against a person who is responsible for a vehicle in which a clandestine entrant hides in order to come to the UK. Responsible persons are owners, hirers and drivers (or in the case of detached trailers, owners, hirers and operators). The maximum penalty level is £2, 000 per responsible person per clandestine entrant. The maximum aggregate penalty for all responsible persons is £4, 000 per clandestine migrant. These penalty levels have not changed – and the Scheme has not been reformed – since 2002.

The Government is concerned that the Scheme is not having enough of an effect. 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. These data show that drivers and other responsible persons are not taking the steps required to secure vehicles, and clandestine entrants are continuing to use these routes to come to the UK.

The Government therefore committed to overhaul the Scheme as part of a package of reforms to the immigration and asylum system announced in 2021. Legislation to initiate changes is contained in the Nationality and Borders Act 2022 (‘the 2022 Act’). The changes under the 2022 Act include introducing a new penalty for failing to adequately secure a goods vehicle, no matter whether a clandestine entrant has been found.

However, before the statutory regulations setting out final changes can be made, the Secretary of State has a legal duty to consult with such persons as she thinks appropriate. During the passage of the 2022 Act, the Government also agreed to consult on the level of penalty for the new penalty of failing to adequately secure a goods vehicle.

These duties were discharged with a consultation, which was held between 18 July and 12 September 2022. The consultation attracted 136 responses (although not every respondent answered every question). The Home Office has also held three deep dive sessions with industry stakeholders and other interested parties. Responses were received from individuals, companies and representative organisations, from within the UK and from countries across the EU. The Home Office is grateful to everyone who took part.

This report summarises the consultation responses, including how the consultation process influenced the final shape of the proposals consulted upon, and the final shape of reform to the Scheme. Reforms, including new penalty levels, have been designed to strike a balance between disincentivising negligence and failures to comply with vehicle security standards, while ensuring that the regime is not overly burdensome on industry.

Summary of responses

Security regulations

We asked what our security regulations should say about the steps responsible persons should take to secure a vehicle. We proposed measures such as checking vehicles to ensure that no clandestine entrants have gained access, using a checklist to document steps taken and, for owners and hirers, providing equipment to secure vehicles.

Most respondents agreed with the basic premise that vehicles should be adequately secured. There was more support than not for each of the measures we proposed with one exception, which was a requirement that drivers should supervise the securing of their vehicle. Insight from deep dive sessions suggests this is because drivers are not always present when a vehicle is secured.

Penalty levels

We asked what the maximum penalty levels should be, both for carrying a clandestine migrant and for failing to adequately secure a goods vehicle. For both penalties, we consulted on maximum penalty levels for individual responsible persons of £2, 000, £5, 000, £7, 500, £10, 000 (maximum aggregate penalty levels of £4, 000, £10, 000, £15, 000, £20, 000).

We also asked if there should be higher levels of penalties in aggravating circumstances and lower levels in mitigating circumstances, and what any such circumstances should be.

Most respondents said the levels of penalty for carrying clandestine entrants should either be unchanged at £2, 000 or should be reduced. Levels of penalty for failing to adequately secure a goods vehicle should be £2, 000 or less. Stakeholders emphasised possible adverse impacts on trade, supply routes and recruitment if penalty levels are too high or if the Scheme is regarded as being overly punitive.

Most respondents said that mitigating factors should include where responsible persons have not been involved in previous incidents, where they have complied with the security standard regulations and where they are members of the Accreditation Scheme. Aggravating factors would be cases where responsible persons have been involved in previous incidents and where they have not complied with the security regulations.

Civil Penalty Accreditation Scheme for Hauliers

We asked if businesses responding to the consultation participated in the Accreditation Scheme, what the main benefits were, and what would encourage those who do not participate to join. We also asked how the accreditation scheme could be improved.

Just under half of those who answered the question said that they were members of the Accreditation Scheme. The key benefit was said to be exemption from penalty liabilities.

Most respondents thought the Accreditation Scheme could be improved – and people could be encouraged to join – if the Government took steps such as providing educational tools and increasing engagement between industry and Border Force.

Conclusions and next steps

The Government has carefully considered representations made from respondents about the possible impact of our proposed reforms, including possible impacts on trade, supply routes and recruitment. The Government is committed to working with individuals and companies to support growth while delivering a strong and effective border.

The proposals of greatest concern for respondents were undoubtedly our those regarding maximum penalty levels. We do think it is appropriate to increase maximum penalty levels for the existing offence of carrying clandestine entrants, as they have not changed since 2002. We also think it is appropriate to set meaningful levels of penalty for the new offence of failing to adequately secure a goods vehicle, to incentivise compliance with our security standards.

However, we agree that it would not be appropriate to fix the new levels at the higher end we consulted on. We also think we can take further steps to mitigate the impact of new fine levels by introducing a ‘strike’ system, geared at targeting repeat offenders, with the highest penalty levels only being applied in cases where repeated instances of negligence are evident. And finally, where a person or company is being fined, we will set out in a new statutory code of practice the mitigating circumstances in which they could be eligible for a reduction in the level of their penalty.

The maximum penalty for an individual responsible person for a first incident of carrying a clandestine entrant will be £6, 000 per clandestine entrant. This will rise to a maximum of £10, 000 for a second and any subsequent incidents in the past five years. The maximum penalties in aggregate will be £12, 000 and £20, 000. The maximum penalty for an individual responsible person for a first incident of failing to adequately secure a goods vehicle will be £1, 500. This will rise to a maximum of £3, 000 for a second incident in the past five years, and to a maximum of £6, 000 for a third and any subsequent incidents in the past five years. The maximum penalties in aggregate will be £3, 000, £6, 000 and £12, 000.

A responsible person being fined for carrying a clandestine entrant could be eligible for a reduction in their level of penalty of 50% if they have complied with the security regulations. A further reduction of 50% could be applied if they are a member of the Civil Penalty Accreditation Scheme.

In respect of failing to adequately secure a goods vehicle, a responsible person who is not the driver, and who was not present during the vehicle or detached trailer’s journey to the UK could be eligible for a 50% reduction in their level of penalty if they acted to ensure compliance with the security regulations. A driver would not be eligible for a reduction for complying with the security regulations, as if they had done this, they would have adequately secured their vehicle in the first place and would not be being penalised. A (further) reduction of 50% could be applied if the responsible person is a member of the Civil Penalty Accreditation Scheme.

For both offences, individuals and companies will be able to apply for means testing to be applied when their level of penalty is being determined. However, the Secretary of State is not bound to apply means testing, for example where insufficient evidence is provided to set out the financial circumstances of the individual or company that is making the request.

The Secretary of State will also be able to take into account any other factors the Secretary of State thinks appropriate in finalising the level of penalty to be levied.

The Secretary of State will also retain discretion not to impose a penalty at all.

The Government wants people and companies to avoid being fined, and they can do so by complying with the security standards. We are setting these in new statutory regulations. The standards largely replicate those contained in the existing ‘Prevention of Clandestine Entrants: Code of Practice’, which is being retired. We will be promoting adherence with the standards through further engagement with drivers and industry in early 2023. This includes relaunching our Civil Penalty Accreditation Scheme, and as noted above, members of the Accreditation Scheme could be eligible for a 50% reduction in any fine.

The Government believes that this package of measures strikes the right balance between recognising the impact of penalties on individuals, companies and industry, while incentivising compliance with our security standards and protecting our border security.

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 Cabinet Office Consultation Principles 2018.

Any enquiries regarding this publication should be sent to us at clandestineentrantcivilpenaltyconsultation@homeoffice.gov.uk.