23_CARRIER’S LIABILITY

Relevant Legislation  The Immigration and Asylum Act 1999 (“the 1999 Act”)1 as amended by the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) The Carriers’ Liability Regulations 2002 (as amended)2 Council Directive 2001/51/EC

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Background 1. The generic reference to Carrier’s Liability refers to two3 broad areas: (a) the first issue is the liability of carriers for undocumented or inadequately documented passengers; and (b) the second ground for liability is in respect of clandestine entrants. 2. Part II of the 1999 Act, as amended by section 125 and Schedule 8 of the 2002 Act, allows the Secretary of State to impose penalties or charges on carriers for clandestine entrants and improperly documented passengers. The penalties imposed must comply with Council Directive 2001/51/EC which stipulates either a maximum charge of not less than 5,000 euros (or equivalent national currency), or a minimum of not less than 3,000 euros . Under this Directive sanctions must be “dissuasive, effective and proportionate”.

Passengers without proper documents (section 40, 1999 Act) 3. The Secretary of State can impose a penalty on a carrier when a person on arrival in the United Kingdom by ship or aircraft is required to produce a valid identity document4 and fails to do so, or when a person who is required under the Immigration Rules to obtain permission before arrival does not have such permission (which should include a person who requires permission to transit the United Kingdom). The penalty of up to £2,000 is set out in section 40(2) of the 1999 Act, and there is a power to substitute the sum by order under subsection (10).

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Part II. 2002 No. 2817 3 The liability of carriers to remove people from the United Kingdom, and in certain circumstances to pay the costs of their detention pending removal is dealt with in section 4 and 5 and Schedule 2 and 3 of the Immigration Act 1971. This is beyond the scope of this Note. 4 An identity document is a passport or other identity document establishing identity and nationality.

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The Home Office has been considering a two-tier fixed charge to replace the current single charge to reflect the value they attribute to their Approved Gate Check (AGC) system5. Pursuant to section 40(7), it is possible by order to extend this provision to a person who arrives it the United Kingdom by train and to make consequential amendments to the provision. The penalty is imposed where the required document is not produced on arrival. However, if the carrier demonstrates the production of a bona fide document to him, his employee or agent by the individual on embarking the vessel (see section 40(4)) but subsequently destroys it en route to the United Kingdom, the carrier does not incur liability. In practice this means that carriers can either take copies of documents on embarkation or operate an Approved Gate Check procedure. For these purposes, a carrier shall be entitled to regard a document as valid unless it is reasonably apparent that it is false, or that it does not relate to the person who produced it (see section 40(5)). The courts have interpreted the “reasonably apparent” test as meaning that forgeries must be of “a standard which a trained representative of the carrying company, examining the document carefully but briefly and without the use of technological aids could reasonably be expected to detect”.

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Clandestine entrants (Section 32 of the 1999 Act) 10. The Secretary of State is able to impose a penalty on a carrier who is responsible for a clandestine entrant. The penalty that the Secretary of State may impose is currently not fixed, but there is a prescribed maximum (see section 32(2A) of the 1999 Act). It is currently set at £2,000.6 11. The penalty may be imposed on more than one responsible person, as long as it does not in aggregate amount to more than the prescribed maximum. The maximum penalty is prescribed by statutory instrument, subject to the negative resolution procedure, and is currently set at £4,000.7 12. The definition of a clandestine entrant is in section 32(1) of the 1999 Act, including the relevant interpretations in section 32(10) and section 43. In broad terms the a person is a clandestine entrant if he arrives in the United Kingdom concealed in a vehicle, ship, aircraft etc

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AGC status is granted in return for an audited high standard of document checking and security procedures at a port of embarkation, a good level of co-operation from the carrier, and a satisfactory record in respect of its liabilities. If UKBA prescribed measures are in place, a limited presumption that satisfactory checks have been carried out applies. 6 The Carriers’ Liability Regulations 2002, 2002 No. 2817 7 The Carriers’ Liability Regulations 2002, 2002 No. 2817

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13. The Secretary of State must have regard to a code of practice specifying matters that will be considered by him in determining the amount of the penalty. A draft of the code, and any revisions to it, are be laid before Parliament before coming into force (see section 32A of the 1999 Act, as amended by the Nationality, Immigration and Asylum Act 2002 section 125, Schedule 8, paragraphs 1, 3). 14. It is not be possible to impose a penalty if any of the carriers responsible has a defence in relation to that clandestine entrant. The defences are set out in section 34 of the 1999 Act. 15. Under section 34(3) of the 1999 Act, where it is alleged a person is liable to a penalty under section 32 for bringing a clandestine entrant to the United Kingdom, it is a defence to show that:  he did not know and had no reasonable grounds for suspecting that a clandestine entrant was, or might be, concealed in the transporter;  there was an effective system in operation in relation to the transporter to prevent the carriage of clandestine entrants; and  on the occasion concerned, the person or persons responsible for operating that system did so properly. 16. A Code of Practice, which is made under section 33 of the 1999 Act, sets out the measures to be taken and the procedures to be followed by persons operating a system for preventing the carriage of clandestine entrants to the United Kingdom, in respect of vehicles. Regard will be had to this Code of Practice in determining whether such a system is effective (section 34(4) of the 1999 Act). 02/11/2009

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