Annex 14
IMMIGRATION AND ASYLUM ACT 1999: CIVIL PENALTY
1. SUMMARY OF
PROVISIONS
1.1 The provisions apply in respect of clandestine
entrants arriving in the United Kingdom in a vehicle, ship or
aircraft and section 39 provides for the Secretary of State to
make regulations to extend the civil penalty to rail freight wagons.
(i) The persons responsible under these provisions
are:
(ii) the owner or captain if the relevant
transporter is a ship or aircraft,
(iii) the owner, hirer or driver if it is
a vehicle (but not a detached trailer),
(iv) the owner, hirer or operator if it is
a detached trailer.
1.2 Section 34 of the Act provides a defence
against Civil Penalty liability in certain circumstances and in
particular, where a carrier can show that he operates an effective
system for preventing the carriage of clandestine entrants and
operated this system properly on the occasion in question. A Code
of Practice, developed in consultation with road hauliers and
others, provides a benchmark against which the effectiveness of
such a system can be measured.
1.3 Section 36 makes provision for a transporter
involved in the carriage of clandestines to be detained against
payment of the penalty raised (and any expenses incurred) in defined
circumstances. However, where a transporter is detained, an application
for its release may be made to the court under section 37. Schedule
1 of the Act provides for an application to be made to the court
for leave to sell the detained transporter after 84 days (from
the initial date of detention), where the penalty has not been
paid.
2. BACKGROUND
2.1 The Government White Paper, "Fairer,
Faster and Firmer—A Modern Approach to Immigration and Asylum",
published in July 1998, made mention of the resurgent problem
of clandestine entry. Statistics collated nationally revealed
that there had been fewer than 500 known incidents of clandestine
entry by vehicle in 1992, but this had risen to over 4,000 in
1997 and to 2,700 in the first five months of 1998. The true scale
of the problem was, however, difficult to estimate, as unknown
numbers of clandestine entrants have successfully avoided detection,
and rather than seek to "legitimise" their situation
by applying for asylum, have joined in the black economy. Clearly
all had passed through one or more European countries en route
to the United Kingdom.
2.2 The majority of clandestine entrants
detected had been found concealed in road haulage vehicles using
the short ferry crossing between Calais and Dover, though other
vehicles including private cars had been used. Many were detected
in searches conducted in the port area by the Immigration Service
and Customs and Excise, but others who avoided detection, subsequently
gave themselves up inland to drivers or to the police. In many
instances it was suspected that drivers had accepted reward for
carrying clandestine entrants and although this was an offence
under section 25 of the Immigration Act 1971, punishable by up
to seven years' imprisonment, in most cases there was difficulty
in meeting the high standard of proof needed to pursue prosecution.
In other cases, it was evident that road hauliers had done very
little to protect their vehicles against unauthorised entry, and
it was commonplace to find that many lacked locks, seals or tilt
ropes to secure the load space. Where vehicles had been sealed,
there was often clear visible evidence of tilt ropes having been
cut, seals broken or of entry having been effected by cutting
through the fabric (curtain or tilt) of the container. In many
cases a simple inspection of the vehicle before embarking for
the UK would have revealed if it had been entered or if the security
devices had been tampered with. Parked vehicles waiting to board
ferries to the United Kingdom, particularly in and around port
areas, such as Calais, where the combination of lack of vigilance
by drivers and of port security proved to be a pull factor for
clandestine entrants and a gift to the racketeers who profited
from the traffic.
2.3 The escalation in the numbers of clandestine
entrants was attributed in part to the success of the Carriers'
Liability legislation, which imposed a charge on carriers (currently
£2,000) in respect of each passenger arriving in the United
Kingdom with inadequate documentation. In considering what steps
could now be taken to stem the escalation in clandestine entry
in vehicles, it was felt right to look to the owners, hirers and
drivers of vehicles to be held responsible for the clandestine
entrants they carried, either knowingly or otherwise. Because,
however, clandestine entrants were not fare paying passengers
and documentation was not the issue, it would not have been appropriate
to extend the existing Carriers' Liability legislation to address
the problem. Proposals were therefore developed for the introduction
of a new Civil Penalty provision in the forthcoming Immigration
and Asylum Bill.
2.4 Understandably, the proposals were not
welcomed by representatives of the road haulage industry, who
expressed the view that such legislation would serve only to alienate
hauliers. They asserted that most clandestine entrants were discovered
by drivers and not by the authorities and that these cases would
in future go unreported if alerting the authorities were to result
in the driver being held liable for a Civil Penalty. In reality,
relatively few clandestine entrants detected in port areas, such
as Dover, had come to light as a result of information received
from drivers. Although drivers frequently reported such incidents
inland, the clandestine entrants had by then achieved their aim
of entering the United Kingdom. The industry argument therefore
overlooked the purpose of the legislation, which was to prevent
clandestine entry, rather than to detect it. Despite assertions
that the legislation was unnecessary and that the industry could
introduce its own voluntary measures to discourage the illegal
traffic, numbers of clandestine entrants dealt with by Dover officers
continued to escalate throughout 1999.
2.5 The South East Ports Surveillance Team
(SEPST) based in Dover deal with all incidents of clandestine
entry within the South East Kent area. This includes clandestine
entry be vehicle detected within the port area and inland as far
as Maidstone. It also includes entry by concealment in rail freight
wagons using the Channel Tunnel; a more recent development. Statistics
produced by SEPST show that they dealt with 430 clandestine entrants
in 1996. This rose to 851 in 1997 and to 3,212 in 1998. This more
than doubled to 8,878 in 1999, but more alarmingly, monthly statistics
showed that whereas some 247 clandestine entrants were dealt with
by SEPST in January 1999, this had risen to 1,244 in December.
The highest monthly figure to date was in March 2000 when SEPST
dealt with 1,423 clandestine entrants.
2.6 As mentioned above, clandestine entry
in rail freight wagons is a more recent, but growing development.
The traffic has largely involved rail freight wagons originating
from yards in northern Italy, principally at Rogoredo, Melzo,
Oleggio and Nivara. Although clandestine entrants are detected
on arrival at freight yards in the United Kingdom, it is more
usual to find evidence of their occupation of rail freight wagons
after their departure. Projected figures based on actual detections
and evidence of carriage point to over 2,400 clandestine entrants
having used this route in 1999.
2.7 The Civil Penalty for vehicles was implemented
on 3 April 2000 and although it is far too early to assess its
effectiveness, numbers of clandestine entrants dealt with by SEPST
during the first month of its application fell to 1,058. Early
indications are therefore encouraging, but staff resources have
so far limited the ability of SEPST to provide full coverage for
searching arriving vehicles, or for searches to be conducted on
a wider national scale. The situation will, however, improve as
the recent recruiting programme for immigration officers and other
grades makes more staff available.
2.8 It is recognised that the Civil Penalty
for vehicles may have a displacement effect and that clandestine
traffic may increasingly shift to rail, air and sea transport.
For that reason consideration is now being given to the development
of Codes of Practice for ships and aircraft in consultation with
those who will be affected and to making regulations for extending
the Civil Penalty to rail freight wagons. This too, will require
consultation with the industry, though there has already been
a good deal of dialogue between officials and English, Welsh and
Scottish Railways (EWS), the British rail operator involved.
3. THE CIVIL
PENALTY AS
A DETERRENT
3.1 Section 25 of the 1971 Immigration Act
provides for the prosecution of a person knowingly concerned in
facilitating the entry of an illegal entrant or of an asylum claimant
for gain. Though this has been strengthened by provisions in the
1999 Act, the high standard of evidence required to pursue a successful
prosecution is often difficult to obtain in relation to persons
concealed in vehicles. Thought this legislation has an important
part to play in the fight against clandestine entry, its limitations
as a deterrent can be measured by the unabated rise in this illegal
traffic.
3.2 The introduction of the Civil Penalty
was strongly opposed by road hauliers, and though there were some
who had successfully introduced systems on their own initiative
to protect and check their vehicles, the vast majority had done
very little. As a direct result of the implementation of the Civil
Penalty many drivers now carry check lists detailing the security
measures that they have carried out. Road haulage industry representatives,
encouraged by Home Office ministers and officials, are also seeking
to promote the setting up of vehicle check points in continental
ports of embarkation, possibly through private enterprise. Ministers
and officials have undertaken to facilitate any such enterprise,
by for example discussions at official or governmental level and
the necessary contacts have been made. There has been little or
no feedback, however, from the industry itself about any emerging
difficulties. The setting up and use of such facilities, if effective,
would go a long way to meeting the Code of Practice requirements
and so provide a defence against liability in the event of clandestine
entrants being carried. The facility would also facilitate examination
of the roof area of vehicles, a highly favoured route of entry
for clandestine entrants.
3.3 The impetus behind the progress currently
being made has unquestionably been the introduction of the Civil
Penalty. Drivers and others who personally had little to gain
previously by being diligent in protecting their vehicles, now
have much to lose by failing to properly check their vehicles
and first indications are that they are now introducing security
measures and carrying out checks. Similarly, owners, hirers and
drivers, who previously accepted payment to carry clandestine
entrants with relative impunity against prosecution now face almost
certain financial penalty.
3.4 Provision in section 36 of the Act to
detain a vehicle against payment of a penalty, is not intended
as a deterrent. Such detention may only be authorised where there
seems to be a significant risk that the penalty may not otherwise
be paid, but it is nevertheless recognised that the possibility
of a vehicle being detained—with the consequential loss
of business—may have a deterrent effect.
3.5 The effectiveness of the Civil Penalty
as a deterrent cannot realistically be evaluated at this early
stage, but SEPST statistics for April 2000, compared to the previous
month show a substantial fall (1,058 and 1,423 respectively).
The figures may, however, be distorted by factors such as the
increased number of checks conducted by SEPST officers in comparison
to previous months, seasonal trends and the unaffected level of
continuing illegal entry by rail freight. A clearer picture will
emerge in the coming months and with more detailed collation of
statistics.
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