Part II Carriers’ Liability
Clandestine entrants
32 Penalty for carrying clandestine entrants.
(1)
A person is a clandestine entrant if—
(a)
he arrives in the United Kingdom concealed in a vehicle, ship or aircraft,
F1(aa)
he arrives in the United Kingdom concealed in a rail freight wagon,
(b)
he passes, or attempts to pass, through immigration control concealed in a vehicle, or
(c)
he arrives in the United Kingdom on a ship or aircraft, having embarked—
(i)
concealed in a vehicle; and
(ii)
at a time when the ship or aircraft was outside the United Kingdom,
and claims, or indicates that he intends to seek, asylum in the United Kingdom or evades, or attempts to evade, immigration control.
F2(2)
The Secretary of State may require a person who is responsible for a clandestine entrant to pay—
(a)
a penalty in respect of the clandestine entrant;
(b)
a penalty in respect of any person who was concealed with the clandestine entrant in the same transporter.
(2A)
In imposing a penalty under subsection (2) the Secretary of State—
(a)
must specify an amount which does not exceed the maximum prescribed for the purpose of this paragraph,
(b)
may, in respect of a clandestine entrant or a concealed person, impose separate penalties on more than one of the persons responsible for the clandestine entrant, and
(c)
may not impose penalties in respect of a clandestine entrant or a concealed person which amount in aggregate to more than the maximum prescribed for the purpose of this paragraph.
(3)
A penalty imposed under this section must be paid to the Secretary of State before the end of the prescribed period.
F3(4)
Where a penalty is imposed under subsection (2) on the driver of a vehicle who is an employee of the vehicle’s owner or hirer—
(a)
the employee and the employer shall be jointly and severally liable for the penalty imposed on the driver (irrespective of whether a penalty is also imposed on the employer), and
(b)
a provision of this Part about notification, objection or appeal shall have effect as if the penalty imposed on the driver were also imposed on the employer (irrespective of whether a penalty is also imposed on the employer in his capacity as the owner or hirer of the vehicle).
(4A)
In the case of a detached trailer, subsection (4) shall have effect as if a reference to the driver were a reference to the operator.
(5)
In the case of a clandestine entrant to whom subsection (1)(a) applies, each of the following is a responsible person—
(a)
if the transporter is a ship or aircraft, the owner F4and captain;
(b)
if it is a vehicle (but not a detached trailer), the owner, hirer F5and driver of the vehicle;
(c)
if it is a detached trailer, the owner, hirer F5and operator of the trailer.
F6(5A)
In the case of a clandestine entrant to whom subsection (1)(aa) applies, the responsible person is—
(a)
where the entrant arrived concealed in a freight train, the train operator who, at the train’s last scheduled stop before arrival in the United Kingdom, was responsible for certifying it as fit to travel to the United Kingdom, or
(b)
where the entrant arrived concealed in a freight shuttle wagon, the operator of the shuttle-train of which the wagon formed part.
(6)
In the case of a clandestine entrant to whom subsection (1)(b) or (c) applies, each of the following is a responsible person—
(a)
if the transporter is a detached trailer, the owner, hirer F7and operator of the trailer;
(b)
if it is not, the owner, hirer F7and driver of the vehicle.
F8(6A)
Where a person falls within the definition of responsible person in more than one capacity, a separate penalty may be imposed on him under subsection (2) in respect of each capacity.
(7)
Subject to any defence provided by section 34, it is immaterial whether a responsible person knew or suspected—
(a)
that the clandestine entrant was concealed in the transporter; or
(b)
that there were one or more other persons concealed with the clandestine entrant in the same transporter.
(8)
Subsection (9) applies if a transporter (“the carried transporter”) is itself being carried in or on another transporter.
(9)
If a person is concealed in the carried transporter, the question whether any other person is concealed with that person in the same transporter is to be determined by reference to the carried transporter and not by reference to the transporter in or on which it is carried.
(10)
“Immigration control” means United Kingdom immigration control and includes any United Kingdom immigration control operated in a prescribed control zone outside the United Kingdom.