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Immigration and Asylum Bill - continued        House of Commons
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  PART II
  CARRIERS' LIABILITY
 
Clandestine entrants
Penalty for carrying clandestine entrants.     18. - (1) A person is a clandestine entrant if-
 
 
    (a) he arrives in the United Kingdom concealed in a vehicle, ship or aircraft,
 
    (b) he passes, or attempts to pass, through immigration control in the United Kingdom 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 in the United Kingdom.
      (2) The person (or persons) responsible for a clandestine entrant is (or are together) liable to-
 
 
    (a) a penalty of the prescribed amount in respect of the clandestine entrant; and
 
    (b) an additional penalty of that amount in respect of each person who was concealed with the clandestine person in the same transporter.
      (3) A penalty imposed under this section must be paid to the Secretary of State before the end of the prescribed period.
 
      (4) Payment of the full amount of a penalty by one or more of the persons responsible for the clandestine entrant discharges the liability of each of the persons responsible for that entrant.
 
      (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 or captain of the ship or aircraft;
 
    (b) if it is a vehicle (but not a detached trailer), the owner, hirer or driver of the vehicle;
 
    (c) if it is a detached trailer, the owner or hirer of the trailer.
      (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 or hirer of the trailer;
 
    (b) if it is not, the owner, hirer or driver of the vehicle.
      (7) Subject to any defence provided by section 20, 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.
 
Code of practice.     19. - (1) The Secretary of State may issue a code of practice to be followed by any person operating a system for preventing the carriage of clandestine entrants.
 
      (2) Before issuing the code, the Secretary of State must lay a draft before both Houses of Parliament.
 
      (3) After laying the draft code before Parliament, the Secretary of State may bring the code into operation by an order made by statutory instrument.
 
      (4) The Secretary of State may from time to time revise the whole or any part of the code and issue the code as revised.
 
      (5) Subsections (2) and (3) also apply to any revision, or proposed revision, of the code.
 
Defences to claim that penalty is due under section 18.     20. - (1) This section applies if it is alleged that a person ("the carrier") is liable to a penalty under section 18.
 
      (2) It is a defence for the carrier to show that he, or an employee of his who was directly responsible for allowing the clandestine entrant to be concealed, was acting under duress.
 
      (3) It is also a defence for the carrier to show that-
 
 
    (a) he did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the transporter;
 
    (b) an effective system for preventing the carriage of clandestine entrants was in operation in relation to the transporter; and
 
    (c) that on the occasion in question the person or persons responsible for operating that system did so properly.
      (4) In determining, for the purposes of this section, whether a particular system is effective, regard is to be had to any code of practice issued by the Secretary of State under section 19.
 
      (5) If there are two or more persons responsible for a clandestine entrant, the fact that one or more of them has a defence under subsection (3) does not affect the liability of the others.
 
      (6) But if a person responsible for a clandestine entrant has a defence under subsection (2), the liability of any other person responsible for that entrant is discharged.
 
Procedure.     21. - (1) If the Secretary of State decides that a person ("P") is liable to one or more penalties under section 18, he must notify P of his decision.
 
      (2) A notice under subsection (1) (a "penalty notice") must-
 
 
    (a) state the Secretary of State's reasons for deciding that P is liable to the penalty (or penalties);
 
    (b) state the amount of the penalty (or penalties) to which P is liable;
 
    (c) specify the date before which, and the manner in which, the penalty (or penalties) must be paid; and
 
    (d) include an explanation of the steps that the Secretary of State may take under this Part to recover any unpaid penalty.
      (3) Subsection (4) applies if more than one person is responsible for a clandestine entrant.
 
      (4) If a penalty notice is served on one of the responsible persons, the Secretary of State is to be taken to have served the required penalty notice on each of them.
 
      (5) The Secretary of State must nevertheless take reasonable steps to secure that the penalty notice is actually served on each of those responsible persons.
 
      (6) If a person on whom a penalty notice is served, or who is treated as having had a penalty notice served on him, alleges that he is not liable for one or more, or all, of the penalties specified in the penalty notice, he may give written notice of his allegation to the Secretary of State.
 
      (7) Notice under subsection (6) ("a notice of objection") must be given before the end of such period as may be prescribed.
 
      (8) If a notice of objection is given before the end of the prescribed period, the Secretary of State must consider the objections and determine whether or not any penalty to which it relates is payable.
 
      (9) The Secretary of State may by regulations provide, in relation to detached trailers, for a penalty notice which is served in such manner as may be prescribed to have effect as a penalty notice properly served on the responsible person or persons concerned under this section.
 
      (10) Any sum payable to the Secretary of State as a penalty under section 18 may be recovered by the Secretary of State as a debt due to him.
 
Power to detain vehicles etc. in connection with penalties under section 18.     22. - (1) If a penalty notice has been given under section 21, a senior officer may detain any relevant-
 
 
    (a) vehicle,
 
    (b) small ship, or
 
    (c) small aircraft,
  until all penalties to which the notice relates, and any expenses reasonably incurred by the Secretary of State in connection with the detention, have been paid.
 
      (2) That power-
 
 
    (a) may be exercised only if, in the opinion of the senior officer concerned, there is a significant risk that the penalty (or one or more of the penalties) will not be paid before the end of the prescribed period if the transporter is not detained; and
 
    (b) may not be exercised if alternative security which the Secretary of State considers is satisfactory, has been given.
      (3) If a transporter is detained under this section, the owner, consignor or any other person who has an interest in any freight or other thing carried in or on the transporter may remove it, or arrange for it to be removed, at such time and in such way as is reasonable.
 
      (4) The detention of a transporter under this section is lawful even though it is subsequently established that the penalty notice on which the detention was based was ill-founded in respect of all or any of the penalties to which it related.
 
      (5) But subsection (4) does not apply if the Secretary of State was acting unreasonably in issuing the penalty notice.
 
 
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Prepared 9 February 1999