The Carriers' Liability (Clandestine Entrants) (Application to Rail Freight) Regulations 2001

Explanatory Note

(This note is not part of the Regulations)

These Regulations apply certain provisions of Part II of the Immigration and Asylum Act 1999 (“the 1999 Act”), for the purpose of enabling penalties to be imposed in respect of certain persons (“clandestine entrants”) who arrive in the United Kingdom concealed in a rail freight wagon. Some of those provisions are modified for that purpose.

Regulation 1 contains definitions of terms used in the Regulations. It also provides for certain provisions to come into force on 7th February 2001, for the purposes of enabling the exercise of powers to bring into operation a code of conduct, and to prescribe such matters as the amount of the penalty, the length of the periods for payment and for serving notice of objection, etc. Otherwise, the Regulations come into force on 1st March 2001.

Regulation 2 defines “rail freight wagon”, for the purposes of Part II of the 1999 Act and the Regulations. A rail freight wagon includes any rolling stock (other than a locomotive) which forms part of a train, other than a passenger train or a shuttle train operating through the Channel Tunnel.

Regulation 3 provides for the application of Part II of the 1999 Act for the purpose of enabling the penalties to be imposed.

Regulation 4 sets out the provisions of Part II of the 1999 Act which apply, namely—

• Section 32 (as applied in part and modified), which defines the persons who are liable to the penalty, and gives the Secretary of State a power to prescribe the amount of the penalty and the period during which the penalty must be paid.

• Section 33 (as modified), which requires the Secretary of State to issue a code of practice to be followed in operating a system for preventing the carriage of clandestine entrants.

• Section 34 (as modified), which provides defences to a liability arising under section 32, namely those of duress (subsection (2)), and the proper operation of an effective system for preventing clandestine entrants (subsection (3)). For the purposes of the latter defence, regard is to be had to the code of practice issued under section 33.

• Section 35 (as applied in part and modified), which provides for a procedure of notifying a decision to impose a penalty, and for a person receiving such a notice to service a notice of objection contesting liability. The Secretary of State has a power to prescribe the period during which any notices of objection must be served, and a duty to consider such notices if they are served within the period prescribed. If he determines that the penalty is payable, he may enforce it by means of civil proceedings for debt.

• Section 36 (as modified), which gives a senior immigration officer the power to detain the rail freight wagon containing the clandestine entrant, if no alternative satisfactory security for payment of the penalty has been given and there is in his opinion a significant risk that the penalty will not be paid.

• Section 37, which allows someone claiming an interest in the rail freight wagon to apply to the court for its release. Under certain conditions the wagon may be sold, in accordance with the procedure laid down in Schedule 1 to the Act.

• Section 43 (as applied in part and modified), which contains definitions of terms used.

Regulation 5 contains a transitional provision.

A regulatory impact assessment has been prepared in respect of these Regulations, and copies may be obtained from: Diane Taylor, European Directorate, Immigration and Nationality Directorate, Home Office, 2nd Floor Podium, Apollo House, 36 Wellesley Road, Croyden CR9 3RR. A copy has also been placed in the library of each House of Parliament.