Select Committee on Home Affairs Appendices to the Minutes of Evidence

Annex 14



  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.


  2.1  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.


  3.1  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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