Clandestine Entrant Civil Penalty Scheme: Public Consultation

The Government are today launching a consultation on reforming the clandestine entrant civil penalty scheme—part of the ambitious work to tackle illegal migration we are delivering through our new plan for immigration.

Illegal migration is facilitated by serious organised criminals exploiting people and profiting from human misery. The same criminal gangs and networks are also responsible for other illicit activity ranging from drug and firearms trafficking to modern slavery and serious violent crimes. A significant number of people, who arrive in the UK through concealment in vehicles by tourist and freight transport routes, have had their entry illegally facilitated by organised criminal gangs. Despite extensive work with overseas partners to strengthen our shared borders and enhance our strategic partnerships, this method of entry continues and endangers the lives of those involved. In many cases, this is a result of criminal gangs and opportunistic migrants taking advantage of unsecured or poorly secured vehicles to smuggle people or enter the UK illegally.

For these reasons, the UK operates a scheme to tackle illegal migration called the clandestine entrant civil penalty scheme. The scheme means that when clandestine entrants are found concealed in a vehicle, a penalty of up to £2,000 per entrant can be imposed on any responsible person connected to the vehicle in question, up to a maximum aggregate of £4,000 in total per clandestine entrant. A responsible person is defined as the owner, hirer or driver of the vehicle. The scheme applies to all vehicles, commercial and private, as well as anything that is designed to be towed or carried by a vehicle—such as trailers, caravans, containers etc. In circumstances where the driver is employed by the vehicle owner or hirer, such as an HGV, the employer is also liable for the driver’s penalty. The penalty level has not been changed for nearly 20 years.

During the financial year 2020-2021, there were 3,145 incidents where clandestine entrants were detected concealed in vehicles, despite the covid-19 pandemic causing a lower volume of traffic. This rose to 3,838 incidents during the financial year 2021-2022. The Government are therefore concerned that the scheme is not having enough of an effect, as drivers are not taking the steps required to secure vehicles, and clandestine entrants are continuing to use these routes to enter the UK.

It is for this reason that the Government committed to review and overhaul the scheme as part of its new plan for immigration. A public consultation on the new plan for immigration was held from 24 March to 6 May 2021. The Government then introduced changes to the scheme through the new Nationality and Borders Act 2022.

The changes under the 2022 Act include narrowing the statutory defences available to those who have carried a clandestine entrant. This means that where a clandestine entrant has been carried, it will no longer be a statutory defence to say that an effective system for preventing the carriage of clandestine entrants was in operation, and that person may still be issued with a penalty. However, if the person has complied with regulations to be issued by the Secretary of State, which will require them to take actions to secure their transporter, report unauthorised access and keep records to show they took these steps, this could mean the level of the penalty is reduced.

The 2022 Act also introduces a new civil penalty for failing to adequately secure a goods vehicle, regardless of whether a clandestine entrant has been found. The Secretary of State will also make regulations which set out what is meant by a goods vehicle being adequately secure and the required vehicle security standards that will determine whether liability arises under this new offence. These may include vehicle checks, reporting unauthorised access and retaining records to demonstrate steps taken.

Before any of these regulations can be made under the 2022 Act, the Secretary of State has a statutory duty to consult with such persons as she considers appropriate. The Government have also agreed to consult on the level of penalty for the new offence of failing to adequately secure a goods vehicle, with a view to bringing into operation a new level of penalty: code of practice.

The Secretary of State is now discharging these obligations through this consultation, which is designed to seek the views of all interested parties on these issues and others connected with the scheme. The consultation will run for eight weeks and will close on 12 September 2022.

Alongside the consultation, the Home Office will be running a series of engagement events to explore these issues in more detail. If you would like to join an engagement event, please email:

ClandestineEntrantCivilPenaltyConsuitation@homeoffice.gov.uk.

The closing date to express an interest in joining an engagement date is 19 August 2022.

We welcome your views and look forward to hearing from you.

A copy of the consultation will be placed in the Libraries of both Houses and also made available on www.gov.uk.

[HCWS213]