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Carriers’ liability: what counts as an “effective system” of lorry checks?
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Despite intense ministerial focus on inflatable dinghies, most unauthorised entrants to the UK have traditionally arrived by lorry. In 2019, more than 10,000 people were discovered to have arrived in the UK concealed in a vehicle; still more will have made it in without being discovered. Small boat arrivals (practically all of whom will be detected) were 1,800 in 2019 and 8,500 last year. Lorry probably has been overtaken by boat as the largest method of unauthorised arrival this year, but remains an important issue in border control.
To encourage commercial road hauliers to take steps to secure their vehicles, the Home Office relies on a civil penalty scheme to penalise those caught with clandestine entrants in their lorries. Carriers can however avoid paying the penalty if they can rely on one of the defences that the scheme provides for.
In Link Spolka Z O.O. & Ors v Secretary of State for the Home Department  EWCA Civ 1830, the Court of Appeal examined the ingredients of a successful statutory defence in the context of four lorries caught carrying clandestine entrants. In particular, it looked at what counts as an “effective system” of vehicle checks.
Carriers’ sanctions: overview
Immigration sanctions for carriers were first introduced in 1987, making this the longest running of the various civil penalty schemes. When we talk about “carriers”, we generally mean any transporters who bring passengers or freight to the UK: airlines, shipping companies, rail companies operating via the Eurotunnel, and haulage companies. The current iteration of the scheme is found in the Immigration and Asylum Act 1999.
Section 40 sets out sanctions for carrying passengers without the proper documents (those who attempt to arrive through proper channels and just don’t have the right papers), and section 32 for carrying clandestine entrants (those who attempt to sneak in by concealment). It was section 32 that was the subject of this case.
Fines for carrying clandestine entrants
Section 32 of the 1999 Act allows the Secretary of State to impose a penalty of up to £2,000 on someone responsible for a clandestine entrant. A “clandestine entrant” is defined as a person who:
- arrives in the UK concealed in a vehicle, ship, aircraft, or rail freight wagon, or
- passes or attempts to pass through immigration control concealed in a vehicle, or
- arrives in the UK on a ship or aircraft having embarked concealed in a vehicle at a time when the ship or aircraft was outside the UK
- claims or indicates an intention to claim asylum, or evades or attempts to evade immigration control.
A “responsible person” in the case of a lorry is the owner, hirer or driver of the vehicle.
Clandestine entrants in this case
Each of the four appeals in Link Spolka Z O.O. & Ors has slightly different facts but the key elements are the same: a lorry was stopped for routine inspection by Border Force, which discovered a number of clandestine entrants in the back, and fines were issued. In each case, the Secretary of State issued penalties to both the lorry company and to the lorry driver, who are jointly and severally liable.
These were not people smuggling attempts. The haulage companies had procedures in place to secure the lorries, which the drivers had complied with. Reading through the procedures in detail for the first time, the amount of work and logistics that goes into protecting against clandestine entrants strikes me as extremely daunting, and not something we ever think about when we pick up products from the continent in a shop.
To give you a flavour, we’ll look at the first of the four companies involved in this appeal, Link.
Objections, appeals and defences
There are two ways to contest a civil penalty notice: objection (section 35) and appeal (section 35A). An appeal can be lodged immediately, without going through the objection procedure, although given that the objection procedure is free it normally makes sense to exhaust that first before charging into court.
Appeals are a re-hearing of the decision and may be determined having regard to matters of which the Secretary of State was unaware. They are heard in the County Court or equivalent.
Aside from duress, the main statutory defence against penalties is the one pled in each of the Link Spolka Z O.O. & Ors cases. It is found at section 34(3) of the 1999 Act and is made up of three elements:
- proving the carrier did not know and had no reasonable grounds for suspecting that a clandestine entrant was concealed, and
- proving there was an effective system for preventing the carriage of clandestine entrants, and
- proving that those responsible for operating the system did so properly on the occasion in question.
These cases turned on the meaning of “an effective system”. The 1999 Act itself does not define an effective system, but it does require those tasked with determining the effectiveness of a system to have regard to the Secretary of State’s code of practice.
11 principles on effective checks
The Court of Appeal summarises its findings in relation to the section 34(3) defence and the code of practice as 11 “principles”, set out at paragraph 54:
i) Where the statutory defence is raised, the question under limb (b) is whether the responsible person’s system is “effective”. Effective does not mean infallible. I would accept as a reasonable working approach to the word that “an effective system will not guarantee that no clandestine entrants can enter the United Kingdom in a vehicle but will, if properly operated, more likely than not prevent their carriage.”
ii) The Prevention Code is not prescriptive. In other words, proof of compliance with the code is neither necessary nor sufficient proof that a responsible person’s system is effective.
iii) It follows that neither the SSHD nor the County Court is limited to considering matters that are included in the Prevention Code when determining whether a responsible person’s system is effective, though they should have regard to it.
iv) It also follows that the County Court should not find that a responsible person’s system is not effective merely because it is possible to identify one or more respects in which the system does not comply with the Prevention Code. The question is always whether the system is effective. In answering that, compliance with the Prevention Code is likely to be evidence in favour of a conclusion that the system is effective; and non-compliance is likely to be evidence in favour of a conclusion that the system is not effective. But the answer to the question whether the system is effective depends upon all relevant facts, circumstances and evidence. This does not mean or imply that it will be necessary to re-invent the wheel every time the issue arises: in many cases the need for evidence may be quite limited: but the need will depend upon the circumstances of the particular case.
v) Checklists may have an importance that goes well beyond the purely evidential because they are intended to focus the mind of the driver on the steps that they have to take and thereby reduce the risk that steps will be omitted.
vi) A failure to produce documents may call into question the effectiveness of the responsible person’s system and lead to an adverse inference. Where a document that has been filled in correctly and contemporaneously is produced late, what matters most is likely to be that it was filled in and not that it was produced late.
vii) Training, assessment and monitoring may be relevant when determining whether a system is effective.
viii) The Prevention Code does not require secured loads to be opened at every stop en route. Nor does the Annex to Objection Decisions.
ix) It is not a breach of the Prevention Code for a haulier to have a system that includes the checks required by [1.2.1]-[1.2.4] but does not require the driver in all cases to open a secured load immediately prior to the vehicle boarding the ship, aircraft or train to the United Kingdom, or before arrival at the UK immigration control at Coquelles.
x) The words “immediately prior” in [1.2.5] are clear and are not the same as saying that the measures set out in part 1.2 are to be carried out at the final stop before embarkation. The SSHD’s preference that the part 1.2 checks be undertaken at the final stop, while understandable, is not in accordance with the terms of the Prevention Code.
xi) On an appeal to the County Court, the Court should follow the three-stage procedure established by the Court of Appeal in Bolle.
The “three-stage procedure… in Bolle” refers to the case of Bolle Transport BV v Secretary of State for the Home Department  EWCA Civ 783. The procedure is:
- Has the responsible person established all of the required elements of the defence? If yes, the defence is established and that’s the end of the matter. No further consideration is required.
- If all of the elements of the defence have not been established, the judge must then consider whether to exercise their discretion to allow the appeal and cancel the penalty, notwithstanding the absence of a defence.
- If the judge concludes that the penalty should not be cancelled, the judge must lastly consider whether the penalty should be reduced and, if so, by how much.
The three-stage procedure from the earlier case of Bolle is important to bear in mind, given that it provides for that second discretionary stage in all civil penalty appeals (including for illegal working). In other words, even if there is no statutory defence against a penalty, it is still always possible to successfully appeal to the judge’s discretion not to impose a penalty.
With the right set of facts and circumstances, this is an option worth considering. The Secretary of State tends to become an immovable object once a decision to issue a penalty has been taken, but an appeal judge may see things differently.
Free Movement training course: Immigration offences and civil penalties: 2 CPD
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|Introduction to civil penalties
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