Schedule 5: Penalty for failure to secure goods vehicle etc.
- Paragraph 1 confirms that this schedule amends Part 2 of the 1999 Act, which outlines the liability of carriers when failing to prevent clandestine entry or entry of inadequately documented individuals.
- Paragraph 2 amends the title of Part 2 of the 1999 Act from "Clandestine entrants" to "Penalties for failure to secure goods vehicle and for carrying clandestine entrants", so as to encompass new provisions.
- Paragraph 3 inserts a new section 31A at the start of Part 2 of the 1999 Act. Section 31A(1) and (2) confer powers on the Secretary of State to impose a civil penalty on a responsible person for failing to adequately secure their goods vehicle against unauthorised access and for failing to take actions required of them by regulations before their arrival in the UK or at a place where immigration control is operated.
- 31A(3) confirms that a civil penalty may be imposed in the event of a failure to adequately secure a goods vehicle, regardless of whether a clandestine entrant has gained access to it.
- 31A(4) directs that the Secretary of State define by regulations what is meant by a goods vehicle being adequately secured against unauthorised access, as well as what actions are expected to be undertaken by a person when securing their goods vehicle.
- 31A(5) creates an obligation on the person responsible for the vehicle to ensure that they check whether a person has gained unauthorised access before and during their journey to a place mentioned in subsections (2)(a) or (2)(b), that they report any suspected unauthorised access to their vehicle, and that they keep records to record the appropriate actions having been taken. Subsection (6) creates a requirement for the Secretary of State to consult with appropriate persons before such Regulations are made.
- 31A(7) sets out that the Secretary of State must specify penalty amounts within a prescribed limit and allows for penalties to be imposed on more than one responsible person for a vehicle and that penalties may not be imposed which amount in aggregate to more than the maximum prescribed.
- 31A(8) stipulates that civil penalties must be paid before the end of the prescribed period.
- 31A(9) creates a defence for those drivers who failed to comply with actions specified in regulations made under this section as a result of being subjected to threats or violence.
- 31A(10) establishes that a penalty can only be applied to a single journey by a goods vehicle, thus protecting against penalising for more than a single offence if a vehicle is encountered more than once on a single trip.
- 31A(11) provides that a penalty may not be imposed under section 31A if already issued under section 32 in the same circumstances.
- 31A(12) provides for cases where penalties are imposed on drivers of goods vehicles who are retained pursuant to a contract (whether or not an employment contract) by the vehicle’s owner or hirer, and makes the driver and owner/hirer joint and severally liable for the penalty imposed on the driver.
- 31A(13) provides for operators of detached trailers to be treated as if they are drivers for the purposes of subsection 12.
- 31A(14) provides that, for the purposes of section 31A, where the goods vehicle is a detached trailer, the persons responsible for the goods vehicle, are the owner, hirer and operator of the trailer. Where the goods vehicle is not a detached trailer, the owner, hirer and driver of the vehicle are responsible persons.
- 31A(15) ensures that anybody acting in more than one capacity by virtue of subsection 14 may have more than one penalty applied.
- 31A(16) defines "immigration control" as meaning United Kingdom immigration control and includes any control operated by the UK, be it within the UK or outside the UK, such as the juxtaposed border controls located in France, Belgium and the Netherlands.
- Section 32(2B) of the 1999 Act is inserted to provide for the Secretary of State to exercise discretion to reduce the amount of penalty payable for carrying a clandestine entrant, if the responsible person is able to demonstrate having complied with the requirements set out in regulations under subsection (2C), in relation to the securing of the transporter against unauthorised access. Subsection (2C) places a duty on the Secretary of State to specify these requirements in regulations.
- Subsection (2D) provides a non-exhaustive list of the types of actions that may be specified in the regulations.
- Subsection (2E) places a duty on the Secretary of State to consult appropriate persons ahead of making the regulations outlined in subsection (2C).
- Paragraph 4 amends section 32 of the 1999 Act to ensure that joint and several liability arises on the basis of a contract between the owner/hirer and the driver, which does not have to be a contract of employment. It also imposes a requirement that a penalty may not be imposed under section 32(2) if a penalty has already been imposed under section 31A(1) for the same circumstances.
- Paragraph 5 amends section 32A, regarding the Level of Penalty: Code of Practice, which specifies matters to be considered by the Secretary of State when issuing a penalty. These amendments include the insertion of new subsections A1 and B1 directing the Secretary of State to issue a code of practice to specify matters to be considered when determining the level of penalty payable under section 31A. Further amendments to section 32A ensure that the existing provisions about codes of practice apply to the new penalties issued under section 31A. Section 32A is amended to enable the Secretary of State to issue a single code of practice or two separate codes of practice when determining the level of penalty payable under section 32 and section 31A.
- Paragraph 6 removes section 33 (prevention of clandestine entrants: code of practice). Instead, the Secretary of State will specify in regulations made under section 31A(4) what is meant by a goods vehicle being adequately secure against unauthorised access and the actions to be taken by responsible persons in relation to securing their vehicle against unauthorised access.
- The statutory defence at section 34(3) is removed, meaning that it is no longer a defence against liability for a carrier to show that they were not aware of the presence of a concealed clandestine entrant, and that an effective system for preventing the carriage of clandestines was in operation. Instead, liability would arise in all cases where a clandestine is present in a transporter, save where there is evidence of duress, in which case a statutory defence arises (section 34(2)). While the steps taken to secure the transporter are no longer relevant to liability, the Secretary of State may exercise discretion to reduce the level of penalty where carriers can demonstrate compliance with section 32(2B).
- Section 34(3A)(c) is also amended so that rail wagon operators must comply with regulations made under section 34(3B). The regulations will specify that a rail operator must have taken actions to secure a rail freight wagon against unauthorised access in order to raise a defence, where it would be unsafe to stop the train on discovering a clandestine in a rail freight wagon.
- Paragraph 8 amends section 35, which sets out the procedure to be followed when issuing a penalty and disputing a penalty. These amendments extend the procedures contained in section 35 to penalties issued under section 31A and section 32. New subsection 35(12)(ca) provides for service of penalty notices to persons outside the UK via e-mail.
- Paragraph 9 amends section 35A, which sets out the procedure to be followed when issuing a statutory appeal. These amendments extend the procedure in section 35A to penalties issued under section 31A and section 32.
- Paragraph 10 amends section 36, setting out the power to detain vehicles in connection with penalties issued under section 31A and section 32. This paragraph also amends section 36(2A)(a) to provide that the vehicle may only be detained where the driver of the vehicle is retained pursuant to a contract (whether or not an employment contract) by the vehicle’s owner or hirer. It also adds subsection 2AA to provide that in the case of a detached trailer, subsection 2A is to take effect as if a reference to a driver were a reference to an operator. This paragraph adds new subsections 6 and 7 confirming the position for the service of documents on persons outside the UK.
- Paragraph 11 amends section 36A, which provides for detention of a vehicle where a person has failed to pay the penalty within the required timeframe. This paragraph amends section 36A(4)(b) to provide that the vehicle may only be detained under this section where the driver of the vehicle is retained pursuant to a contract (whether or not an employment contract) by the vehicle’s owner or hirer. It also adds subsection 4A to provide that in the case of a detached trailer, subsection 4A is to take effect as if a reference to a driver a reference to an operator were. It also adds subsections 7 and 9 to mirror the provisions in section 36 and adds subsections 10 and 11 to confirm the position for the service of documents on persons outside of the UK.
- Paragraph 12 amends section 43, setting out definitions for terms in Part 2 of the 1999 Act. This paragraph inserts a definition of "goods vehicle" as meaning a mechanically propelled vehicle designed or adapted solely or principally to be used for the carriage or haulage of goods and at the time in question, is being used for commercial purposes. Alternatively, any trailer, semitrailer or other such thing, which is designed or adapted to be towed by a vehicle specified in paragraph (a)(i). This paragraph also amends the definition of "transporter", specifying that a "vehicle" includes a "goods vehicle".
- Paragraph 12 also inserts new subsections 43(1A) and 43(1B). These provide a definition of "container" and stipulate that references to the securing of a "goods vehicle" against unauthorised access in Part 2 of the 1999 Act also include the securing of any "container", which is being carried by a goods vehicle against unauthorised access.
