Commentary on Sections Evasion of Procedure Section 125 and Schedule 8: Carriers’ liability
300.The section provides that Schedule 8 shall have effect. Paragraph 2 of Schedule 8 amends section 32 of the 1999 Act, which relates to the penalty payable for carriage of a clandestine entrant into the United Kingdom.
301.Sub-paragraph (2) introduces provisions into the 1999 Act which are currently contained in the Regulations that extend the penalty regime to rail freight wagons (S.I. 2001/280 as amended). Thus a clandestine entrant, as defined by section 32(1) of the 1999 Act, includes someone who arrives in the United Kingdom concealed in a vehicle, ship, aircraft or rail freight wagon and who claims, or indicates that he intends to seek, asylum in the United Kingdom, or who evades, or attempts to evade immigration control.
302.Sub-paragraph (3) amends section 32 so that it provides that a person responsible for a clandestine entrant may be held individually liable to pay a penalty in respect of the clandestine entrant and any person concealed with that clandestine entrant. The Secretary of State may impose, in respect of each clandestine entrant, an individual penalty of no more than a prescribed maximum on each responsible person whilst limiting the total combined amount to a prescribed maximum in respect of each clandestine entrant. Rather than being held jointly and severally liable, as currently provided for in the 1999 Act, each responsible person will be liable for his own penalty.
303.However, further to the amendments made by sub-paragraph (4), where a penalty is imposed on a driver who is the employee of the vehicle’s owner or hirer, the driver’s employer, as well as the driver, will be liable for payment of that penalty.
304.The amendments made by sub-paragraph (6) mean that where the clandestine entrant is concealed in a freight train, the responsible person is the train operator who was responsible for certifying the relevant train as fit to travel to the United Kingdom or (in the case of a freight shuttle wagon) the operator of the shuttle train of which the wagon forms part.
305.Pursuant to amendments made by sub-paragraph (8), where a person is responsible in more than one capacity, for example, as both the owner and driver of a vehicle, a separate penalty may be imposed on him in respect of each capacity.
306.Paragraph 3 creates a new section 32A of the 1999 Act introducing a new code in relation to setting the level of the penalty.
307.Subsection (1) of the new section requires the Secretary of State to issue a code of practice specifying the matters to be considered in determining the amount of a penalty. Under subsection (2) the Secretary of State must have regard to the code and any other relevant matters when imposing a penalty and when considering a notice of objection against a penalty.
308.By subsections (3) to (6), the Secretary of State is required to lay a draft of the code before Parliament before issuing it and then may bring the code into operation by order. The Secretary of State may subsequently revise and reissue the code.
309.Paragraph 6 amends section 34 of the 1999 Act in relation to the defences to the imposition of a penalty under section 32 of that Act.
310.Sub-paragraph (4) inserts a new subsection (3A) which creates a defence for rail freight operators in circumstances where the operator knew, or suspected that a clandestine entrant was, or might be, concealed in the rail freight wagon, having boarded the train or shuttle train after it had begun its journey to the United Kingdom, and the operator could not stop the train or shuttle train without endangering safety.
311.Paragraph 7 amends section 35 of the 1999 Act by clarifying the procedure for the issuing of the penalty notice and objecting to the issue of a penalty notice.
312.Amendments made by sub-paragraph (3) mean that a responsible person may give notice of objection to the Secretary of State in the required form and within the prescribed period if he objects on the grounds that he is not liable to the imposition of a penalty or that the amount of the penalty is too high. The Secretary of State may then affirm, vary or cancel the penalty and inform the objector of his decision within a prescribed or agreed period. If the penalty is increased, a new penalty notice must be issued.
313.Paragraph 8 of the Schedule introduces a new statutory right of appeal against the imposition of a penalty in a new section 35A of the 1999 Act. A person may contest both liability to a penalty and the level of the penalty in the county court (or equivalent court in Scotland). The court may cancel or reduce the penalty, or dismiss the appeal. The appeal will be a re-hearing of the Secretary of State’s decision to impose a penalty and the court hearing the appeal must have regard to any code of practice relating to the level of penalty in effect at the time of the appeal, the code of practice relating to prevention of clandestine entrants in effect when the penalty was issued and any other relevant matters (which may include matters of which the Secretary of State was unaware). An appeal may be brought whether or not a notice of objection has been given or the penalty has been increased or reduced under the objection procedure.
314.Paragraph 9 amends section 36 of the 1999 Act which relates to the detention of vehicles.
315.Sub-paragraph (3) provides the power to detain a transporter for up to 24 hours pending a decision on whether to issue a penalty notice, pending the issuing of a penalty notice, or pending a decision whether to detain a transporter under section 36(1). This is to take account of the time it may take in some instances to complete the necessary enquiries to establish the identity of those who are potentially liable to pay a penalty, to determine the level of any penalty to be imposed, and to consider whether there is a significant risk that the penalty will not be paid if the transporter is not detained under section 36(1).
316.Paragraph 10 inserts a new section 36A into the 1999 Act which provides the power to detain a transporter where a person to whom a penalty notice has been issued fails to pay the penalty before the specified date. Under this power any transporter used, in connection with his business, by the person to whom the penalty notice has been issued (provided that this is the owner or hirer of the transporter, or their employee at the time the penalty notice was issued) may be detained. Detention cannot take place if an appeal against the penalty is pending or can be brought. A detained transporter will be released if the penalty and any connected expenses are paid.
317.Paragraph 11 amends section 37 of the 1999 Act which enables a person to apply to a court to have their transporter released.
318.The amendment made by sub-paragraph (4) removes the requirement for a person, when applying to the court for the release of a transporter that has been detained in accordance with section 36(1), to show a compelling need for its release. A transporter may be released if the court considers that a satisfactory security has been tendered, that there is no significant risk that the penalty and any connected expenses will not be paid, or that there is a significant doubt as to whether the penalty is payable.
319.Sub-paragraph (5) inserts new subsections (3A) and (3B) which provide that a court may also release a transporter detained under new sections 36A and 36(1) if a penalty notice was not issued to the owner or an employee of his or if the court considers it right to release the transporter. A transporter may also be released under new section 36A if the court considers that the detention was unlawful.
320.The amendment made by sub-paragraph (6) means that the power of sale under section 37(4) may only be exercised when no appeal against the penalty is pending or can be brought or with the consent of the owner.
321.Paragraph 13 substitutes a new section 40 of the 1999 Act. This provides for the charge imposed on carriers in respect of passengers arriving in the United Kingdom without proper documents. The owners of ships and aircraft will continue to be liable to a charge of £2,000 in respect of an individual who arrives in the United Kingdom and fails to produce the required documents. The owners and operators of road passenger vehicles will no longer be liable to a charge but there is a power for the Secretary of State to apply the section by order to passengers arriving by train.
322.A new section 40A sets out the procedures for notification of and objection to the penalty. The charge notice and notice of objections must contain certain information and follow a prescribed form. The Secretary of State will determine whether or not to cancel the charge within a prescribed or agreed period.
323.A new section 40B also provides a statutory right of appeal by which a carrier may contest his liability to a charge in the county court (or equivalent court in Scotland). The appeal will be a rehearing of the Secretary of State's decision to impose a charge and may be determined having regard to matters of which the Secretary of State was unaware. The court may cancel the charge or dismiss the appeal. An appeal may be brought whether or not a notice of objection has been given under the objection procedure.
324.Paragraph 14 removes the power to detain vehicles under section 40.
325.Amendments to Schedule 1 (sale of transporter) made by paragraph 16 mean that where the owner of a transporter is a party to an application for leave to sell it, in determining whether to give leave the court will consider the extent of any hardship likely to be caused by sale, the extent to which the owner is responsible under the penalty notice and any other relevant matters.