A London law firm has urged fleet operators undertaking international haulage to review their systems for adequately securing vehicles and to apply for membership of the Clandestine Entrant Civil Penalty Accreditation Scheme without delay.
JMW Solicitors issued the advice after a Nottingham Court of Appeal upheld a decision against international logistics giant KLG Trucking over the concealment of eight clandestine entrants in one of the company’s vehicles.
Border Force said that KLG had failed to keep records of checks of the securing of vehicles to prevent unauthorised access within 24 hours of the incident. It imposed a penalty of £4,500 per entrant – £36,000 in total – on KLG, in line with the overhaul of the Clandestine Entrant Civil Penalty Scheme, which took effect from February 2023.
Under the scheme, the driver and operator are both liable to a maximum aggregate penalty of £20,000 per entrant, and a maximum aggregate penalty of £12,000 in the case of a failure to adequately secure a goods vehicle. The operator is responsible for payment of the driver’s penalty as well as their own.
KLG Trucking had argued that where there had been full compliance with the previous regulations, no penalty should be imposed.
However, in what JMW said was ‘something of a blow for international operators’, the Court of Appeal disagreed. They stated that they did ‘not think that the mere fact that a vehicle owner has not been shown to have failed to comply with the 2002 Regulations provides a good reason either for declining to impose any penalty or for imposing one at a level lower than indicated by the Penalty Code’.
JMW said the overhaul of the penalty scheme had been translating into ‘hefty fines being imposed on operators virtually day in, day out’.
The company is currently assisting a range of operators from across the UK, Ireland and Europe. It added that it is dealing with a high number of cases where it is challenging penalties – both at the objection and appeal stage.
The Civil Penalty Accreditation Scheme recognises those operators who take measures to operate an effective system for securing their vehicles and for preventing the carriage of clandestine entrants.
Members of the scheme will benefit from a 50% discount from the starting point for any penalties imposed. Previous liability to a penalty does not prevent an operator from joining the scheme and it is free to join.
However, JMW recommends that operators take specialist legal advice when completing their applications as there are still various grounds available for challenging decisions.
It added that Border Force do not always apply the Penalty Code correctly.
