The haulage industry has long been a target for government in its apparent attempts to combat illegal immigration. 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, as much by the new(ish) government and the previous.
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 activity and readiness to impose fines on both the drivers and hauliers. This has, of course, previously bene made ever worse by inclement winter weather conditions for Channel crossings; a pattern which is likely to be repeated annually.
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.
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.
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 penatlies are being challenged wherever possible.
This has been made even more difficult by a Court of Appeal decision earlier this year, which has effectively imposed a strict liability scheme in all but name, where the best that can be hoped for, even in a no fault case, is a series of discounts for compliance; membership of the Civil Penalties Accreditation Scheme (CPAS); and a good prior record.
What can we do?
We can advise on the applicability of discounts, the level of penalty, and whether the tests have been applied correctly, as well as means testing. In the right circumstances, objecting on the basis of compliance can also lead to very significant reductions.
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.
We are currently taking enquiries from hauliers who are intent on challenging the status quo, and this could be a ‘watch this space’ moment.
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.
