Last reviewed 2 June 2016
Vikki Woodfine, a partner at DWF LLP looks at current events over the past year, safety concerns for drivers doing international work in the summer of 2016, as well as issues for operators.
For years, professional drivers have found coming through continental ports into the UK to be fraught with issues. However, last year this problem came under the world’s media spotlight when the crisis heightened and migrants were storming security fences seeing ferry routes and the Channel Tunnel closed, costing UK industry billions.
The intense media scrutiny that we saw in Calais last year has certainly eased off, but seemingly a number of the issues seen previously are still very much present. A question remains as to whether the lack of press coverage is linked to the impending referendum or just that the French police have gained a better level of control over last year’s issues. Many hauliers and professional drivers continue to be greatly affected by the ongoing crisis in Calais and it shows no sign of abating, although (aside from unrest in the area due to strikes at the time of writing) the migrant situation does not appear to be worsening.
The desperation of the thousands who have attempted to reach the UK as clandestine entrants has been evidenced by the sheer level of risk being taken and the marked increase in the audacity of the attempts to board vehicles.
National television news has shown that events in Calais have taken a much darker turn in the last year where drivers would find their vehicles swamped and surrounded as they reached the port. There was often a serious risk of violence in the area, with this risk remaining to the present day. The Road Haulage Association has previously said that British lorry drivers “could end up killed” as the crisis escalates and have strongly criticised the French authorities for not doing enough to protect the truckers. Last year, we saw the French police barriers being breached, the tunnel security being compromised and would-be immigrants killed.
From talking to a number of continental drivers in May 2016, it appears that the French police do have more control over the situation than they had last year. One driver explained that the police now have a presence from the slip road leaving the E16 all the way down into the port of Calais. Also, French security is now going around vehicles with sniffer dogs just prior to embarking. However, current advice is that drivers should refrain from parking their vehicles for any length of time within 200 miles of Calais prior to re-entering the UK.
One aspect that continues to anger operators is that of the imposition of civil penalties. Despite everything that is happening in Calais and the regular loss of control there, hauliers and drivers are still being penalised by the UK Border Force with them stating that it is “business as usual” for civil penalties being issued.
According to Home Office figures, the number of clandestine entrants caught trying to enter the UK in vehicles or trains in 2012–2013 was 12,000 and this increased by 60% to 19,000 in 2013–2014.
By 2014–2015 the annual figure reached 39,546, being more than double the year before. Looking at released figures simply for the period of April to July 2015, the figure stood at 30,629 detections, which would give an annual rate for 2015–2016 of 92,000.
Consequences for vehicles found to be carrying clandestine entrants
An HGV driver and his or her employer can each receive a penalty of up to £2000 for each clandestine entrant found in the vehicle. The vehicle could also be detained if there are outstanding fines or the UK Border Force (UKBF) is concerned that the fine will not be paid on time.
As a company is jointly and severally liable for its drivers’ fines, operators could be exposed to a penalty of £4000 per clandestine entrant. Applying the figure of £4000 to the estimated number of entrants caught trying to enter the UK in a last year, there is a potential for £368 million worth of penalties.
The drivers’ reality
The intimidating actions of the migrants at the port of Calais are an obvious worry for drivers and operators alike. However, drivers cannot turn a blind eye to the boarding of their vehicles for fear of the safety implications of challenging migrants as they face the huge penalties per attempted clandestine entrant, as set out above.
While the Government has spoken of it “pledging support” for drivers in Calais, at no stage have the Government said that drivers and their employers would not be fined for the presence of clandestines in vehicles even in light of the migrant crisis that we currently face.
When the author contacted the UKBF in 2015 to ask what would happen on an in-land detection (in other words, the driver has come through all border checks and hears people in the back of the vehicle) the UKBF confirmed that penalties would be issued even when a driver calls the police and asks for help. This is known as an “in country drop” and penalties would still be issued, even where a driver has got through all border checks without people being detected and the driver has then made a voluntary report to try and stop the clandestine entrants in their tracks.
Drivers have a stark choice in Calais: risk their safety, and try and remove large numbers of desperate people from their vehicles without the support of the enforcement authorities or risk being fined up to £4000 per person found in their vehicle, even where drivers approach the authorities themselves. This also poses an incredibly difficult judgment call for employers when asking drivers to “police” their vehicles if you consider obligations under health and safety laws.
Operators have a tough decision to make in asking their drivers to open vehicles up to check for potential illegal entrants, or even worse, to open vehicles up and ask migrants to leave the vehicle when the driver has heard or seen something untoward. While operators have to be seen as having robust security policies which drivers must adhere to in an attempt to avoid the highest penalty levels, they must balance this against the duty to take “all reasonably practicable steps to protect the health safety and welfare of their employees” (s.2 of the Health and Safety at Work, etc. Act 1974).
Checklists and policies
There is readily available guidance for operators in the form of checklists and policies to use with their drivers to reduce exposure to fines. Vehicle operators must take active steps by having effective systems in place to prevent people hiding in or on their vehicles. UKBF operates a free Civil Penalty Accreditation Scheme, open to operators of any size or nationality who undertake journeys between mainland Europe and the UK. To qualify, an operator must show that it has an effective system to prevent it carrying clandestine entrants. It must also show that it takes all reasonable steps to ensure the system operates properly.
In order to demonstrate an effective system to allow qualification under the aforementioned accreditation scheme, operators should demonstrate:
measures taken to secure vehicles against unauthorised entry. This would include ensuring that the body of the trailer appears intact, tilt cords and straps are used and undamaged, the trailer is locked and sealed and that regular written checks are completed
measures taken immediately prior to the vehicle boarding the ship or train to the UK or before arrival at the UK immigration control operated in a prescribed control zone outside the UK. This includes having a system to check tilt cords and straps for evidence of tampering, damage or repair, as well as checking that seals, locks or other security devices have not been removed, damaged or replaced. Finally, the checking of the outer shell/fabric of the vehicle for signs of damage or unauthorised entry, paying particular attention to the roof, which may be checked from either inside or outside the vehicle as well as checking external storage compartments and beneath the vehicle.
If an operator is accepted onto the scheme and clandestine entrants are subsequently discovered in its vehicles, a civil penalty will not be imposed if the operator is found to be operating in accordance with the scheme.
However, alongside considerations under the UKBF guidance, operators should think through the reality of a driver hearing or seeing entrants board their vehicle. Reporting this to the French police does not always have the desired outcome as, in the past, there have been regular stories that drivers have been ignored or that a simple cursory glance into the trailer was given and the driver waved on. What follows is that the migrants are then found at UK checkpoints and fines potentially issued. Furthermore, drivers should never be under any doubt that their own personal safety is more important than the risk of penalties being imposed. They should feel able to call their transport manager to discuss any concerns and support should be given to the driver to try to seek appropriate support from French security staff or UK border staff. Drivers should never be told to try to open their vehicle and take on what could be a large and desperate group of individuals. The risks are just too high.
Being part of the UKBF accreditation scheme may alleviate this concern for drivers. If they can show that they have acted in accordance with the scheme, they can feel positive that they will not be unfairly penalised for any subsequent breach of their security. In a world of professional traffickers now operating across Northern France, security breaches are getting harder and harder for drivers to detect. Add to this, the sheer desperation of some of the people potentially hiding in the back of the vehicle and it is clear to see why drivers are becoming increasingly fearful and many operators and drivers are turning away from international work, leaving this to foreign operators.
General guidance for operators
General principles for operators working on the continent are as follows.
Implement a clear system to prevent people hiding in and on their vehicles.
Produce a clandestine entrant policy including clear written instructions on the system.
Provide handbooks to drivers enclosing the clandestine entrant policy and UKBF guidance.
Provide drivers with security equipment to secure their vehicle, load and load space.
Provide adequate ongoing training to all drivers on how to prevent clandestine entrants and the application of security devices on vehicles.
Provide all drivers with vehicle security checklists for drivers to record the checks that they have carried out to prevent clandestine entrants.
Monitor drivers’ compliance with the clandestine entrant’s policy. Failure to comply with the clandestine entrant’s policy by drivers should lead to disciplinary action.
As the UK moves towards the impending EU referendum, only time will tell as to whether the issues that have been seen on our borders will improve or continue to cause UK industry problems.