Hot on the heels of its recent success in what is believed to have been the first successful clandestine entrants appeal since the Court of Appeal decision in KLG Trucking SRL, JMW’s Commercial Road Transport team has secured a further victory for the haulage sector in its latest clandestine entrants appeal.

JMW’s team (Laura Hadzik, Partner, and Rachel Airriess, Trainee Solicitor) and Matthew Howarth, Counsel of Lincoln House Chambers have again successfully appealed a five-figure clandestine entrant civil penalty, arguing that there was a lack of evidence to prove that the five individuals found concealed in the operator’s trailer were ‘clandestine’. 

The Court – agreeing with the operator’s defence – ruled that, whilst there was no dispute that it was the operator’s vehicle and trailer that had been inspected at the border or that five individuals had been found concealed in the operator’s trailer, the Secretary of State for the Home Department (“SSHD”) had failed to provide sufficient evidence to conclude (even on the balance of probabilities) that the individuals were ‘clandestine’ and the evidence was insufficient for the Court to ‘infer’ that they were. As a result, the penalties against both the operator and driver were withdrawn and the operator was awarded their costs of the appeal. 

This represents another significant victory for international haulage and coach operators following the Court of Appeal decision in KLG Trucking SRL v SSHD [2024] EWCA Civ 737 – which was handed down in June 2024 and which ruled that civil penalties are to be expected in almost all cases where clandestine entrants are found (even where the operator and driver have complied with all their obligations in respect of the securing and checking of the vehicle). This victory provides a further reminder that the SSHD must still prove the grounds for imposing penalties exist in each case.