Given the vast quantities of goods imported by the UK, one could be forgiven for assuming that importers will know exactly how to calculate duties owed and/or, that if the worst happens, and their goods are seized following random inspection, that the guidelines for how to get them back will be clear. However, experience would suggest that this is not always the case.
Seizures by Border Force in the year March 2019-March 2020 shot up by 55%, the second annual increase since a decline in 2012. The fact that this data largely pre-dates the restrictions imposed thanks to the pandemic would suggest that it could continue beyond the lifting of travel restrictions and economic resurgence.
Given that this trend seems to have gained some significant traction, what are a business’s options following a seizure of goods?
The first port of call is the seizure notice. This document should list the items seized, who they were seized by and should explain the legal grounds for the decision.
What are ‘condemnation proceedings’?
Option one for those who wish to challenge the lawfulness of the seizure, is that a notice of claim can be sent to Border Force or HMRC asking for what is known as ‘Condemnation Proceedings’. These proceedings must be commenced within 28 days of the seizure and will ultimately lead to a court hearing to determine whether the goods were lawfully seized.
Whilst this may seem an attractive option, particularly for those who can demonstrate unequivocally that the correct duty has been paid, the process can be lengthy (think months or even years rather than days and weeks) and consequently expensive.
Anyone considering submitting a claim should be aware that if your claim is unsuccessful, or you change your mind mid-way through the process, it is likely that you will be made to pay some of Border Force’s costs, particularly if you withdraw your claim at a late stage.
If you choose to withdraw the challenge your goods will be condemned and it may be inferred that you accept that the goods were lawfully seized; however, this does not operate as a bar to any application for restoration.
A less contentious approach?
Alternatively, importers may make an application for restoration. A successful restoration application results in goods being returned to the owner following a letter to Border Force requesting the items back.
Restoration applications can be made even where you are unsure as to whether the seizure was lawful and can even run concurrently with condemnation proceedings. This option seems deceptively simple, however, the default position is not to return certain goods. In successful cases, Border Force may agree to restoration, either upon the fulfilment of certain conditions such as further payment of duties or may even agree absolutely. Where restoration is refused you have a right to a review and finally can appeal to the Tax Tribunal.
Time is certainly of the essence when considering either application; whilst there is no time bar for making a restoration application, it is important to act promptly before goods are disposed of.
If the request for restoration is refused or the conditions attached to it are disputed, it is possible to request a review of the decision which, without any reasonable excuse for delay, should be commenced within 45 days of the letter of refusal.
As outlined above, a challenge to the lawfulness of the seizure (Condemnation Proceedings) must be commenced within 28 days.
We will need to wait and see whether this recent increase in seizure of goods directly correlates with a decrease in movement of individuals due to the pandemic and therefore, a more goods-focussed Border Force approach. If this is the case, we can no doubt expect to see the trend continue for a little while longer.
Given that the value of many seizures can exceed tens of thousands of pounds, either or both applications for condemnation or restoration proceedings should be viewed strategically giving thoughtful consideration to a cost/benefit analysis.
Birketts can provide a frank and honest appraisal of your options giving you a sound basis upon which to commence a claim or application. Our Regulatory and Corporate Defence Team can assist in drafting your claim or letter and guide you through the process, representing you at condemnation court hearings and appeal tribunals should the matter progress.
If you would like advice in relation to Regulatory matters please contact Francesca Reason in our Regulatory and Corporate Defence Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at February 2021.