The Nationality and Borders Act 2022 – what does this mean for my business?

The Nationality and Borders Act 2022 (“the Act”), which received Royal Assent on 28 April 2022, is aimed at deterring illegal entry into the UK. The majority of the provisions contained within the Act came into force in June 2022.

Whilst the Act is far-reaching in scope, one noteworthy change to the UK’s immigration policy is in respect of clandestine entrants to the UK. A clandestine entrant is a person who enters a vehicle, or somehow attaches to the external fittings of a vehicle, for the purpose of accessing the UK by undetected means.

Why was the Nationality and Borders Act introduced?

The Home Office has published figures for the financial year 2020 to 2021, which shows that there were 3,863 clandestine entrants detected at the UK borders. The aim of the Act is to try and reduce these numbers and to prevent the high levels of illegal immigration into the UK.

The Act now makes it an offence for commercial drivers to fail to adequately secure a vehicle, such as lorries and vans, irrespective of whether any clandestine entrants are located in the vehicle. The steps which drivers are expected to take are set out in guidance published by the Border Force, but include (without limitation):
1.    Obtaining written instructions on vehicle security from the employer
2.    Watching the vehicle being loaded to ensure no unauthorised individuals enter
3.    Checking the fabric of the vehicle to ensure there is no damage
4.    Locking integral doors and securing with a padlock. Soft-sided vehicles should apply a good quality tilt cord, which is secured with a robust padlock / unique seal
5.    Check the panniers and secure with locks where possible and check the wind deflector and axles
6.    Check the fabric, roof and security of the vehicle. If there is evidence of damage, tampering or unauthorised access, check the loan and load-space
7.    Record all checks which are made on a checklist at loading, after every stop and before entering the UK.

What fines might businesses face for clandestine entrants?

In the event that a clandestine entrant is detected in the vehicle, a large fine may be levied on both the employer and the individual driver in question. This fine can be as large as £2,000 for both the driver and the employer. It is also on a joint and several basis which means that, should the driver be unable or unwilling to pay the fine, a company may face a fine as large as £4,000.

Should the UK Border Force be concerned that the fine will not be paid, or there are any outstanding fines for repeat offenders, the vehicle in question may be detained at the border. This could obviously cause issues if the vehicle in question is part of a wider supply-chain and have an impact on your contractual obligations.

These new stricter rules regarding clandestine entrants should be a concern for both businesses and their employees. More cautious action should be taken in order to avoid either party paying a fine up to £4,000.