Peter McDonnell, Associate in the Cargo and Logistics practice at leading commercial law firm Hill Dickinson, provides clarity on UK Border Force regulations. Peter discusses the rights to detain and seize goods, issue penalties, and explains how businesses must comply with regulations and avoid penalties.
As a haulier or logistics operator transporting goods to or from the UK, it is important to understand the UK Border Force’s enforcement powers and procedures. Border Force regulations can have serious consequences for a business’s reputation if not understood or adhered to correctly. It’s therefore important to understand how to avoid or deal with these situations and what the options are for recovering property or challenging the penalties.
What enforcement powers does the UK Border Force have?
The UK Border Force, a law enforcement command under the Home Office, enforces customs controls and immigration checks on goods and individuals entering the UK.
Of primary concern to hauliers is the Customs and Excise Management Act 1979 which grants Border Force the authority to seize goods and vehicles. This power is invoked when Border Force suspects that the goods are ‘liable to forfeiture’ which means having violated customs regulations, lacked duty payment, or involved restricted or prohibited items.
Furthermore, Border Force can seize the haulage vehicle if there’s suspicion of an intent to evade duty payments or if financial penalties, like those associated with transporting clandestine migrants, remain unpaid.
If the haulier is present during the seizure or detention of goods, Border Force will issue a ‘seizure information notice.’ If absent, a ‘notice of seizure’ is provided. These notices outline the seizure’s rationale, its legal foundation, and the available options for the haulier to recover the seized goods.
If property is seized by the UK Border Force, what are the recovery options?
In response to a seizure of goods or vehicles by UK Border Force, the two main options (and most timely), for recovery available to a party whose property has been seized are through condemnation (challenging the legality of the seizure), or restoration (requesting restoration of the seized goods or vehicles).
What is the Condemnation procedure?
The ‘Condemnation’ process requires a Magistrates’ Court review to assess the legality of Border Force property seizures. If the court deems a seizure unlawful, the property will be returned. To initiate this process, a Notice of Claim must be sent to Border Force within one month of receiving the seizure notice. Failure to do so results in property forfeiture, and Border Force can dispose of it which can be a complex process to navigate.
What is the Restoration procedure?
Alternatively, the ‘Restoration’ process allows for the return of seized property when it’s acknowledged that Border Force had a legal right to seize it, provided fees and duty are paid. To request Restoration, a letter must be sent promptly to the address on the seizure notice. Although there’s no specific time limit, a timely request is recommended as goods can be sold immediately if perishable or within 45 days for non-perishables.
Border Force may return the property upon payment or offer compensation if it’s sold or destroyed. Rejected requests can be reviewed by their designated ‘Review Officer,’ with an appeal option to the First Tier Tax Tribunal if needed, although this is a potentially costly and lengthy process.
What is the UK Border Force’s approach to Restoration applications?
Border Force’s approach varies based on the case’s merits, which can make understanding the rules and regulations challenging. Goods seized for duty evasion are typically not restored, and vehicles linked to significant revenue loss won’t be returned. For other cases, the vehicle may be restored on the first detection of such conduct for a fee equal to 100% of the revenue involved or the trade value of the vehicle (whichever is lower).
Vehicles with ‘reasonable steps’ for legitimacy can be restored at no cost. But adapted vehicles for smuggling usually won’t be returned.
Border Force’s approach clearly demonstrates the benefits to hauliers in guaranteeing that all proper checks for illicit goods are made, as the chances of recovering a seized vehicle are much higher if this can be shown. It’s important for businesses and hauliers to ensure that they fully understand what they must do to adhere to Border Force regulation to avoid penalties.
What are the penalties for transporting clandestine entrants?
Under the Immigration and Asylum Act 1999, UK Border Force has powers to impose penalties on owners, drivers, hirers and operators of vehicles which transport clandestine entrants to the UK. Penalties range from £2,000 to £10,000 per clandestine entrant, and failure to pay can result in vehicle seizure.
These penalties encourage hauliers to enhance security on their vehicles to try and reduce the risk of clandestine entry. By proving that they have good security systems and entry prevention in place, companies can receive a 50% penalty reduction through the Civil Penalty Accreditation Scheme (should clandestine entry still happen). Therefore, it’s important that hauliers are aware of this to encourage them to adhere to security regulations and avoid these unwanted penalty fines.
Key takeaways for hauliers
Clearly, it is important to be aware of UK Border Force rules and regulations when it comes to transporting cargo in order to avoid hefty penalty fines. Whilst the power is ultimately in the hands of Border Force, the condemnation and restoration recovery options discussed should provide a palpable way out of most difficult situations. Hauliers must ensure that they have a clear understanding of the legislation for a smooth transportation of goods to and from the UK.
