JMW’s Commercial Road Transport team has successfully appealed a five-figure civil penalty imposed on one of its haulage company clients for allegedly transporting seven clandestine entrants into the UK in what is believed to be the first successful appeal since the Court of Appeal decision in KLG Trucking SRL.

Pursuing a somewhat novel defence, JMW’s team (Laura Hadzik, Partner, and Rachel Airriess, Trainee Solicitor) and Matthew Howarth, Counsel of Lincoln House Chambers successfully argued that there was a lack of evidence to prove that the individuals were ‘clandestine’, that they had arrived in the UK and/or passed through immigration control in the vehicle or that they had originated from outside the UK.  Crucially in this case, the vehicle’s interception had occurred nearly three hours after it had passed through Border Control checks at Dover without issue.

The Court – agreeing with the operator’s defence – ruled that 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’, resulting in the withdrawal of all penalties against both the operator and driver, and the operator was awarded their full costs of the appeal. 

It is, however, disappointing that the operator in this case had to pursue an appeal to the county court, as the argument that was ultimately successful had initially been raised with Border Force at the objection stage.

We understand this to be the first victory for operators in the county court following the Court of Appeal decision in KLG Trucking SRL v SSHD [2024] EWCA Civ 737 – which was handed down in June 2024 (see here: First Court of Appeal Decision under the ‘new’ Clandestine Entrant Civil Penalty Scheme – a blow for international operators? (jmw.co.uk)) 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 serves as a reminder that the SSHD must still prove the grounds for imposing penalties exist in each case.