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IMD Corporate obtained a substantial reduction of civil penalties imposed by UK Border Force on a transport operator, our client, and the vehicle driver. The penalties originally issued were significant; following detailed written representations, both penalties were materially reduced. This result reflects the practical value of early, evidence-based submissions under the Level of Penalty: Code of Practice (updated 1 December 2023) and the relevance of recent appellate authority addressing proportionality.
Factual summary
Border Force issued penalty notices after unauthorised entrants were discovered in a vehicle operated by the client. The operator is a small-to-medium enterprise and employed the driver on standard terms. The client initially doubted that a reduction was feasible. After he heard we secured a penalty reduction in a comparable matter for a person known to him, the client decided to trust us and instructed IMD Corporate to challenge the penalty notices and to request reassessment by reference to means.
IMD Corporate acted for both the operator and the driver, submitting appropriate authority and comprehensive supporting material to the UK Border Force.
Statutory and policy framework
Civil penalties for transporting unauthorised entrants are assessed under the relevant statutory regime and applied in accordance with the Code of Practice. The Code sets out mitigation factors, including:
- whether reasonable preventive systems were in place;
- the extent of cooperation with enforcement authorities; and
- the financial means of the operator and the individual driver.
The Code requires that penalties be reasonable and proportionate. The courts have endorsed proportionality as a central consideration when penalties are imposed on foreign operators or individuals with limited means; recent precedents confirm that penalty levels must reflect commercial and personal financial realities where appropriate.
Approach to representation
IMD Corporate prepared and submitted early, structured written representations for both parties. Key elements of the representation included:
- Means evidence: translated financial statements and income documentation demonstrating that the operator is an SME with turnover within the threshold for medium companies, marginal profit performance in the most recent accounting period, constrained liquidity and existing indebtedness. For the driver, the submission showed modest income and family commitments that would make a full penalty unaffordable.
- Compliance and cooperation: evidence of preventive measures adopted by the operator, records of routine vehicle checks, and a record of full cooperation with enforcement officers during and after the incident.
- Legal precedent and proportionality: citation of relevant case law establishing that administrative decision-makers must apply the proportionality principle and take financial capacity into account, together with a reasoned argument applying that principle to the documented facts.
All documentation was provided in English with certified translations where required. The representations requested reassessment of penalty levels under the Code and suspension of recovery pending determination.
Legal analysis
The central legal issue was the application of proportionality when assessing civil penalties against a foreign-based operator and a low-income driver. The representation argued that automatic adoption of standard penalty scales without regard to means risks producing an outcome that is excessive and unjust.
IMD Corporate’s submissions integrated the Code’s mitigation factors with the evidential record. The factual material addressed two distinct but related lines of inquiry: first, whether the operator had taken reasonable steps to prevent unauthorised carriage; and second, whether the level of a fixed penalty was commensurate with the true financial capacity of the operator and of the driver. The submissions demonstrated that the combined effect of thin margins, constrained liquidity and household dependency meant the original penalty amounts would have disproportionate economic consequences.
The legal argument emphasised that proportionality requires the decision-maker to select a penalty that is effective as a deterrent. But also fair, taking into account the specific financial circumstances proven by the parties.
Outcome
Following consideration of the written representations and supporting evidence, the enforcement authority reduced both penalty notices substantially:
- For the company from £10,000 to £5,000; and
- For the driver from £6,000 to £809,
The decision recognised the relevance of means testing and expressly noted the operator’s financial constraints and the driver’s personal circumstances. In addition to the monetary reductions, the authority confirmed a new payment due date.
Practical recommendations
IMD Corporate also provided the client with practical steps to reduce the risk of future liability, including:
- formalising documented pre-departure vehicle inspections and retention of inspection logs;
- implementing regular driver briefings and written procedures to evidence preventive efforts;
- conducting periodic internal audits of compliance procedures; and
- considering enrolment in the Civil Penalty Accreditation Scheme that provide mitigation incentives under the Code.
Conclusion
This outcome shows that timely, well-prepared submissions supported by evidence of means, compliance, and proportionality can achieve meaningful penalty reductions. Those facing Border Force penalties should prepare complete evidence and take early legal advice to make sure any assessment is fair and proportionate.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.