The influx of immigrants from African and Middle Eastern countries has recently become a scourge for transport entrepreneurs carrying cargo between France and the UK via the port of Calais. Innocent carriers pay heavy fines when customs services discover illegal passengers on board a truck. Does the penalized party have any chance of overturning or reducing the fine?
Sylwia Pokucińska, legal trainee at the Translawyers Widuch and Partners Law Firm: The TSL industry most often encounters penalties imposed on a driver or entrepreneur at the time of a traffic offense or violation of administrative regulations. The decision to impose a penalty by the UK Border Force is quite different. It happens that such a decision may be delivered to an entrepreneur many months after the incident involving immigrants occurred, when the carrier has long forgotten that such a situation took place. How is it best to behave in such a situation?
You must act immediately. The carrier cannot wait until the decision is served. If the relevant documents (e.g., a checklist of vehicle inspections performed by the driver after each stop – immediately before setting off) were not presented during the inspection, the entrepreneur should immediately send a report or other evidence proving that the driver performed inspection activities by traditional or electronic mail after being stopped. Additionally, the entrepreneur should justify why the driver did not have the documents in question at the time of the inspection. Written instructions given to the driver before departure or at the time of employment can also be sent, including a description of the system used in the company to prevent illegal entry into vehicles by persons hiding from authorities, illegal immigrants, or other unauthorized passengers. At the same time, it is worth presenting any presentations or training materials from courses conducted for employed drivers on preventing “uninvited guests” from entering the vehicle. You can also attach statements signed by drivers in which they confirm participation in training, familiarization with, and understanding of the presented rules.
All circumstances and evidence will be taken into account by the Border Force when assessing the entrepreneur’s potential objection to the penalty imposed on them and their driver. From the date of receiving the decision, the entrepreneur has 28 days to send and deliver a so-called Notice of objection to the appropriate authorities. This can be done in writing by registered letter, as well as by e-mail. The entrepreneur should indicate the reasons why they believe they are not responsible for the entry of illegal persons onto a vehicle belonging to their company. In this way, they can challenge the very basis of their liability. They have the right to oppose the Border Force’s argument regarding the lack of appropriate security measures or documents required to comply with the provisions of the so-called Code of Practice on civil penalties and preventing illegal border crossing. Furthermore, the entrepreneur may consider the imposed penalty too high and demand its reduction. A justification for limiting the amount of the penalty may be a reference to the current difficult financial situation or potential damage to the company’s assets in the event of paying the imposed penalty. The objection should contain appropriate documents confirming the reported claims, e.g., a profit and loss account for the previous year or a bank account statement for the last 6 months.
Importantly, the entrepreneur can file an objection on their own behalf as well as on behalf of their driver. It must be remembered that the entrepreneur is jointly and severally liable for the payment of the penalty by the driver. This means that the border services can pursue payment of the penalty imposed on the driver directly from the entrepreneur. Challenging the penalty imposed on the driver should be justified separately, although it can be done in one letter. The letter of appeal against the imposed penalties can be submitted by the entrepreneur independently or through an attorney.
To avoid the stress and sense of injustice associated with imposed penalties, it is worth applying the tools required by law earlier, before the inspection at the port of Calais. Thanks to preventive behavior and due diligence, a carrier can protect themselves from a decision unfavorable to the company, instead of racking their brains over how to cancel a penalty that has already been imposed.