The Home Office is set to be challenged by haulage firms in court over fines imposed on drivers who, on many occasions unwittingly carry migrants and refugees across the channel hidden in their vehicles.
Two separate legal challenges will be heard this week at the court of appeal, with one coming from a Romanian firm, and one from a Dutch firm. The appeals will be asking for drivers to be given a fairer opportunity to prove they have done everything in their power to secure their vehicles.
Any HGV drivers caught with illegal stowaways on board their vehicles are currently fined up to £2,000 per stowaway found. In 2015, it was estimated that around 40 migrants and refugees were entering Dover illegally.
More than 3,300 civil penalties, costing businesses £6.6m were served last year, tripling from the amount of fines issued in 2013. According to UK Border Force, it estimates 1/3 of HGV’s arriving at the boarder do not have the advised standard of security.
“We are making the argument that sometimes it is completely unavoidable,” said Rupinder Matharu, the solicitor of Marius Cuzmin the manager of the Romanian haulage firm that is challenging the fines in the court of appeal, who was fined in 2013 after 3 people climbed into one of his HGV’s by jumping on to the roof from what is believed to be a motorway bridge and cutting a whole in the tarpaulin cover.
“He followed the guidance as closely as he could, but the Home Office found he did not have a padlock on the rope secured around the lorry. But that would have made no difference, because people got inside by cutting the tarpaulin. We hope the court or appeal will find there should be a more common sense approach”
“We are making the argument that sometimes it is completely unavoidable,” said Cuzmin’s solicitor, Rupinder Matharu, from law firm MTG. “He followed the guidance as closely as he could, but the Home Office found he did not have a padlock on the rope secured round the lorry. But that would have made no difference, because people got inside by cutting the tarpaulin. We hope the court of appeal will find there should be a more common-sense approach.”
Marius Cuzmin’s company has been fined a total of 3 times since the penalties were introduced in 2000, resulting in over £3,000 in costs. Parvimder Saini, Cuszmin’s barrister said “The system of penalties against hauliers, the code of practice and the underlying legistlation is ripe for review, and these matters have not been discussed by the court of appeal over a decade,”
The same three judges will also hear a similar case on Thursday by Dutch company Bolle, which is appealing against a £7,200 fine after a driver picked up a sealed container from the airport in Frankfurt with six people hidden inside, who were only discovered when it was opened in Berkshire.
The deputy chief executive of the Freight Transport Association, James Hookham said on-the-spot fines meant even the most careful drivers were deemed guilty until proven innocent.
“Drivers are fined when migrants manage to get round the frontlines of British and French immigration enforcement,” he said. “It’s an affront to justice. It cannot be the responsibility of drivers to be the enforcers of European migration policy, as long as they have taken suitable precautions.”
“Drivers may be unable or afraid to check their vehicles from the outside because of the hostile and occasionally violent atmosphere between truckers and refugees in the roads around the port of Calais,” he added.
“If a driver was injured, a firm would face a health and safety inquiry saying why was the driver allowed to leave his vehicle, but if he doesn’t check the outside, he could be fined for not being careful enough about stowaways,” Hookham said.
Cuzmin’s case at the court of appeal was key, Hookham said, because he was set to argue that he had taken every reasonable precaution – even carrying a copy of the code of conduct in his truck, translated into Romanian. “If the court of appeal finds in favour of the applicant, that could be transformative,” he said.
Hookham said he did not think the fines should be abolished entirely, but argued the system should be reformed. “We’re not saying drivers should be given carte blanche because of course we know there’s organised criminal activity going on, and the fines are an incentive to not be careless,” he said.
“If the drivers have met the standards on the code of conduct, they should be allowed to make their case, rather than being issued with a fine first and able to appeal later.”
The Home Office said it could not comment on the forthcoming legal action. “It is in all our interests to combat attempts to enter the UK illegally, which can damage the haulage industry financially and place the safety of drivers at risk,” a spokeswoman said.
“The civil penalty regime is an important part of our wider response to tackle illegal immigration, and exists to ensure that all drivers are taking reasonable measures to stop migrants from boarding their lorries.
“We are currently consulting on proposals to modernise the regime to reflect developments in both the technology available to hauliers and operators, and the tactics used by migrants.