Section 34: Defences to claim that penalty is due under section 32., Immigration and Asylum Act 1999

This section applies if it is alleged that a person ("the carrier") is liable to a penalty under section 32.

A person ("the carrier") shall not be liable to the imposition of a penalty under section 32(2) if he has a defence under this section.

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.

It is also a defence for the carrier 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;

an effective system for preventing the carriage of clandestine entrants was in operation in relation to the transporter; and

that on the occasion in question the person or persons responsible for operating that system did so properly.

It is also a defence for the carrier to show that—

he knew or suspected that a clandestine entrant was or might be concealed in a rail freight wagon, having boarded after the wagon began its journey to the United Kingdom;

he could not stop the train or shuttle-train of which the wagon formed part without endangering safety; and

an effective system for preventing the carriage of clandestine entrants was in operation in relation to the train or shuttle-train; and

the carrier had taken the actions specified in regulations under subsection (3B) in relation to the securing of the wagon against unauthorised access.

on the occasion in question the person or persons responsible for operating the system did so properly.

The Secretary of State must specify in regulations the actions to be taken for the purposes of subsection (3A)(c) in relation to the securing of a rail freight wagon against unauthorised access.

The actions that may be specified in regulations under subsection (3B) include, in particular—

actions in relation to checking a person has not gained unauthorised access to the wagon,

actions in relation to the reporting of any unauthorised access to the wagon, and

actions in relation to the keeping of records to establish that other actions specified in the regulations have been taken.

Before making regulations under subsection (3B), the Secretary of State must consult such persons as the Secretary of State considers appropriate.

In determining, for the purposes of this section, whether a particular system is effective, regard is to be had to the code of practice issued by the Secretary of State under section 33.

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.

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.

Where a person has a defence under subsection (2) in respect of a clandestine entrant, every other responsible person in respect of the clandestine entrant is also entitled to the benefit of the defence.

Section 34: Defences to claim that penalty is due under section 32.

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