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Clandestine entrants

Keeping penalties to a minimum

Clandestine entrants are an inevitable issue for operators sending vehicles on to the Continent. The issue is an on going concern for operators and drivers with the potential heavy civil penalties that can be imposed. This article looks at how HGV operators can protect themselves against clandestine entrants and take steps to minimise any penalties.

What is a clandestine entrant?

A ‘clandestine entrant’ is a person who hides in or on a vehicle as it enters the UK with the aim of avoiding or attempting to avoid immigration controls. The enforcement agency is the UK Border Agency (UKBA) who can impose fines on operators and drivers who are found carrying a clandestine entrant. The law applies to all road vehicles including cars, caravans, coaches and rail freight and to all arrivals into the United Kingdom from all European sea ports and on the Eurotunnel.

Obligations and Penalties

The law requires all vehicle operators to take responsibility for protecting and actively checking their vehicles before crossing into the UK from mainland Europe. It forces operators to have effective systems in place to prevent clandestine entrants gaining entry to their vehicles. Where an operator fails to have such a system, or fails to operate its system properly, UKBA can impose a civil penalty of up to £2,000 for each clandestine entrant found. The driver of the vehicle, the driver’s employer, and the owner/hirer of the vehicle can each be fined up to £2,000 per entrant.

When clandestine entrants are detected in vehicles, the worst thing that operators can do is to ignore correspondence from UKBA. Normally, UKBA allow operators and drivers the opportunity to mitigate their case prior to imposing a civil penalty. This provides a chance to minimise these penalties as far as possible.

If operators decide not to pay the civil penalties they should be aware that their vehicles can be detained and potentially sold to secure the funds required to cover the penalty. This can cause huge disruption to businesses, particularly where a customer’s load is on the vehicle at the time of its detention.

Detection

There are a number of methods used by UKBA to detect the presence of clandestine entrants hidden within vehicles, such as:

Carbon dioxide probes
These are thin, lightweight tubes attached to a monitor designed to detect carbon dioxide, which can be an indicator of human presence as the carbon dioxide levels increase inside a closed vehicle when people are inside. This is a quick and commonly used check by UKBA.

Body detection dogs
Body detection dogs are trained to smell humans who are inside vehicles by sniffing the air outside the vehicle. If the dog reacts, the handler will suspect that people may be inside the vehicle and ask for the doors to be opened for a more thorough search to be conducted.

Gamma scanners
This is a mobile system, mounted on a lorry that uses gamma rays to produce pictures of the contents of vehicles and containers. Without entering the vehicle or container, it can detect people and smuggled goods inside. The scan is relatively quick to conduct and the image produced is reviewed to decide whether any further action is necessary.

Passive millimetric imaging
The passive millimetric wave imager makes use of natural radiation, and also detects heat and creates an image from this. The system does not create any radiation itself. The image created clearly shows the contents of the vehicle, displayed on a monitor.

Heartbeat detector sheds
UKBA use a mobile computer system that has vibration sensors to detect movement inside a vehicle. The computer analyses the signals and can detect the presence of human activity within the vehicle. The results quickly tell the inspector whether to pass or search the vehicle.

Preventative Measures

To reduce their exposure to fines, vehicle operators must take active steps by having effective systems in place to prevent people hiding in or on their vehicles.

Operators should:

  • Implement a clear system to prevent people hiding in and on their vehicles.
  • Produce a clandestine entrant policy including clear written instructions on the system.
  • Provide handbooks to drivers enclosing the clandestine entrant policy and UKBA guidance.
  • Provide drivers with security equipment to secure their vehicle, load and load space.
  • Provide adequate ongoing training to all drivers in relation to the system to be operated to prevent clandestine entrants and the application of security devices.
  • Monitor the drivers’ compliance with the clandestine entrant’s policy. Failure to comply with the clandestine entrant’s policy by drivers should lead to disciplinary action.
  • Provide all drivers with vehicle security checklists for drivers to record the checks that they have carried out to prevent clandestine entrants.

Drivers should:

  • Ensure compliance with the operator’s system to prevent clandestine entrants.
  • Secure vehicles after loading, for example, using a padlock, seals, and tilt (TIR) cord.
  • Check vehicles after each stop, physically pulling security devices to ensure they are intact, inspecting the vehicle underside, windbreaker, roof and canvas etc and record these checks.
  • Conduct a thorough final check of the vehicle immediately before entering the port area, recording this.

Operators should follow UKBA guidance: ‘Prevention of Clandestine Entrants: Code of Practice’. This sets out in detail the measures to be taken and the procedures to be followed by operators and drivers employing an effective system to prevent clandestine entrants gaining entry to their vehicles. Operators should also consider UKBA guidance: ‘How to Avoid a Penalty: 10 Steps to an Effective System for Drivers to prevent Clandestine Entry’.

DWF’s Regulatory team recommends operators join UKBA’s free accreditation scheme. The scheme is open to operators of any size or nationality who undertake journeys between mainland Europe and the United Kingdom. To qualify, an operator must show that it has an effective system to prevent it carrying clandestine entrants. It must also show that it takes all reasonable steps to ensure the system operates properly. If an operator is accepted onto the scheme and clandestine entrants are subsequently discovered in its vehicles, a civil penalty will not be imposed if the operator is found to be operating in accordance with the scheme.

For further information and advice on preventative steps to protect your business, please contact Vikki Woodfine of DWF Regulatory team on 0161 603 5060.

lorrylawyer@dwf.law

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