Clandestine Entrants - A concern of the past?

Clandestine entrants have been an inevitable issue for operators sending vehicles on to the Continent. However, on 22 September 2010 it was reported that the number of UK-bound immigrants caught by border patrols in Calais had fallen by 80% in the last year, according to Home Office figures. So is this issue becoming a concern of the past or is the falling numbers a testament to the efforts being made by hauliers?

The law requires all vehicle operators to take responsibility for protecting and actively checking their vehicles before crossing into the UK from mainland Europe. It forces operators to have effective systems in place to prevent clandestine entrants (a person who hides in or on a vehicle as it enters the UK with the aim of avoiding or attempting to avoid immigration controls) gaining entry to their vehicles.

Where an operator fails to have an effective system in place or fails to operate its system properly, the UK Border Agency ("UKBA") can impose a civil penalty of up to £2,000 for each clandestine entrant found upon the operator and the driver.

Operators and drivers must work together by implementing and following compliance systems (examples are suggested by UKBA on their website). If systems are followed, everybody will benefit from keeping penalties to a minimum. Operators should be particularly vigilant of these systems as they can be held responsible to pay driver penalties as well, resulting in a potential liability of up to £4,000 per entrant!

Last year, many hauliers commented to DWF that there seemed to be more stringent policing of the UK borders and it was felt that an increasing number of penalty notices were being issued. This perception was backed-up by figures released showing that the number of penalty notices issued to drivers and hauliers for harbouring clandestine entrants increased by 90% in 2009. The revenue from the penalties raised was £1.6million, only £100,000 more than in 2008 (£1.5m), which could indicate lower level penalties being imposed last year as compared to 2008.

Home Office figures show that between October 2008 and September 2009 the number of entrants caught trying to cross the channel illegally from Calais was 24,201. However, the latest news from 22 September 2010, is that in the last year (which has seen a huge crackdown from authorities) that number has fallen to 5,369.

Not only are there less clandestine entrants being caught trying to cross UK borders, but the UN High Commission for Refugees ("UNHCR") now estimates that the number of migrants based in Calais has fallen to around 150, and the those along the north coast of France are down to around 500. Only last year, one camp in Calais, known as "the jungle", housed over 1,000 immigrants alone, before the French police closed it down.

The UNHCR's Calais representative told Sky News that migrants complain that they are being arrested repeatedly, sometimes several times in the same day. He went on to say that whilst the UNHCR understands the need for arrests, they need to be carried out in a way that respects peoples' rights.

These recent press references to clandestine entrants' human rights will only cause further irritation to international hauliers. Often when articles are written on this immigration issue in the general press, the focus can be on the living conditions of migrants in areas such as Calais, who often create makeshift camps and receive assistance from charity organisations. Our clients tell us that it is disappointing that there is regularly a distinct lack of stories of the price that hauliers have to pay for this current situation; hauliers being the forgotten victims of this problem, as they have to pay penalties when they fall victim to an unwanted hitchhiker.

With illegal immigrants being regularly dispersed by French Authorities from Calais, hauliers can be affected anywhere in Northern France. It is no longer the case that a vehicle will be safe if the driver parks up outside Calais to takes his legally required daily rest period as clandestine entrants are finding their way into HGVs some 50 to 70 miles away from Calais. Traffickers are now so professional that even where an HGV has a TIR cord/padlock etc, they are gaining entry by cutting cords/locks and gluing them back together so that drivers cannot, on visual inspection of their trailer, detect a breach in their vehicle security.

An alternative situation that hauliers can find themselves in is where, once a driver has entered the UK, they hear banging in their trailer which can indicate the presence of clandestine entrants. The driver/haulage company is then faced with an impossible situation whereby if they do the right thing and they contact the police to alert them to the possibility of clandestine entrants being in their vehicle, they are likely to be fined for this and their record could be tarnished as a result. Therefore, hauliers are now increasingly being put in a position where they feel that the best course of action for them is for their driver to open the trailer and walk away from the vehicle leaving the clandestine entrants to escape and enter the UK freely. This begs the question, how can this be right?

It is undeniably positive news to hear that there has been a reduction in the number of clandestine entrants being found entering the UK. Whilst the press may report on "a concerted effort of UK and French authorities to stop illegal immigration through the port", perhaps the success from these figures should lay at the door of the UK haulage industry? The more improved haulier's prevention systems become, the harder it is for people to gain access to their vehicles. Perhaps this is the deterrent behind the reduction in the presence of clandestine entrants?

For further information and advice on preventative steps to protect your business, please contact Vikki Woodfine of DWF Regulatory team on 0161 603 5060 or alternatively email victoria.woodfine@dwf.co.uk.

Justice on the cheap?

The number of paralegals entering the legal profession has doubled in the last decade and is set to rise even further. Recent figures show an increase from 24,509 in 2001 to 51,250 today - a rise of 109%.

In addition, the Regulator of the Institute of Legal Executives is currently consulting on a proposal to grant Extended Rights of Audience to Associate Prosecutors - who are not required to have legal qualifications.

These Rights of Audience, if granted, will mean that such Associate Prosecutors will be able to prosecute all summary-only cases in the Magistrates' Court.

At this stage, there are no plans at present to allow these Prosecutors to prosecute offences that are punishable by imprisonment. However, the very idea of having defendants prosecuted by Associate Prosecutors with no legal qualifications could lead to potential miscarriages of justice; which, as we all know, are expensive to correct.

 

This issue was debated and settled by Parliament when the Criminal Justice & Immigration Actpassed into legislation in 2008; and the powers that Associate Prosecutors can be granted are defined by the legislation. The key issue is the competence of Associate Prosecutors to carry out the work the legislation permits.

Although, in principle, we should welcome any attempts to reduce public expenditure, it is the accumulative effect that this is likely to have. Not only is legal aid less readily available and legal aid rates are continuing to be cut; but this also comes at a time when HM Courts Service is moving to replace legally trained court clerks with unqualified note takers.

Therefore, there is all the more reason for drivers and motorists to engage proper legal representation when it comes to Magistrates' Court Hearings, including trials, which Associate Prosecutors shall be able to handle. If you take out the absence of proper legal representation for a defendant; with the limited legal knowledge of magistrates and court clerks without legal training, and prosecutors without full qualifications, the risk is that justice shall not best be served.

No one doubts that paralegals do a valuable job and that Associate Prosecutors should be able to present 'guilty' pleas in uncomplicated cases - but that is worlds apart from contested trials, where once again the defendant or driver faces the possibility of a miscarriage of justice.


For further information contact Anton Balkitis or Lucy Wood on 0115 9100 600 http://www.keepmeontheroad.co.uk/