Illegal workers could close down your licensed premises

26 Aug 2016

The Immigration Act 2016 received Royal Assent on 12 May 2016 but the main sections concerning licensing are not yet in force - Spring 2017 is the anticipated date.

There has been increasing concern to prevent persons who have no right to live and work in the UK from doing so.  Recent case law showed support for a Review of a premises licence on prevention of crime and disorder grounds, when the only complaint was the employment of illegal immigrants. 

The Government has now taken a step further, in this Act, to make it very clear that the repercussions of being, or employing, an illegal immigrant will roll over into licensing.  This is because the Government sees the hospitality industry as being at the forefront of employing foreign nationals, and had received statistics demonstrating that 82% of the civil penalties that can currently be issued for employing illegal immigrants were handed out to those in this sector.

Schedule 4 of the Act makes amendments to the Licensing Act 2003, which will affect:

  • Personal Licences

  • Premises Licence applications

  • Rights of Entry

And Schedule 6 of the Act adds new powers in respect of:

  • Closure Notices and Compliance Orders

Personal Licences

Applicants must be entitled to work in the UK.

Immigration offences and most Immigration penalties will become relevant for personal licences.  The Secretary of State will also need to be served with the application if Immigration issues are revealed in the application (unless a spent offence).  If a personal licence holder is required to pay an Immigration penalty, they will be under a duty to inform the Licensing Authority.

A personal licence granted to someone who is not, or who is no longer, so entitled, will lapse. 

If that person is a DPS, then the right to sell alcohol under the premises licence will also immediately lapse. 

It is an offence to sell alcohol if there is no DPS validly appointed in respect of the licence, even if the premises licence holder may not have been aware of the lapse of the DPS’ personal licence.  This could lead to prosecution and/or Review of the premises licence.  

Premises Licences for sale of alcohol and/or late night refreshment

Applicants must be entitled to work in the UK.

The application must also be served on the Secretary of State.  This will bring the number of responsible authorities who have to be served with such an application up to 10 in many cases.

Applicants for transfer or Interim Authority must be entitled to work in the UK, and the Secretary of State served with the application for transfer. 

A premises licence granted to someone who is not, or who is no longer, entitled to work in the UK, will lapse.  Any sale of alcohol or late night refreshment will be unlawful, and those involved could be liable to a maximum penalty of unlimited fines and/or 6 months’ imprisonment on a successful prosecution.

Rights of Entry (came into force 12 July 2016)

The police or authorised officers already have a right to enter under the Licensing Act 2003 if they have reason to believe that offences under the Immigration Act 2014 are being committed in connection with the sale of alcohol or provision of late night refreshment, but this Act extends that right to an Immigration Officer. 

Closure Notices and Compliance Orders

Schedule 6 of the Act gives new Closure and Compliance powers to Immigration officers.

Illegal Working Closure Notice

Basically, a Chief Immigration Officer or above can issue such a Notice for between 24-48 hours dependent on rank, if an illegal worker is found on the premises, and, amongst other things, reasonable efforts have been made to tell any person who has an interest in the premises that such a Notice is being issued.   The ‘premises’ for these purposes may include other buildings or areas also used in conjunction with the premises.

If such a Notice is issued, no-one is allowed on site, or to work (whether paid or not) on site, unless authorised in writing by the Immigration officer.

Demonstration of compliance with employment requirements for the worker concerned will enable the Notice to be lifted.  If there is an inability to show such compliance, the Officer must make application for a Compliance Order which must be heard by the Court within 48 hours of service of the Closure Notice.

Illegal Working Compliance Order

The Court may issue a Compliance Order for up to 12 months, which may

  • Prohibit or restrict access to the premises

  • Require right to work checks to be carried out

  • Require right to work documents to be produced

  • Specify times for an Immigration officer to be on the premises.

The Order may be extended on application by the Officer for a maximum of a further 12 months. 

Owner/operator remedies

On becoming aware of a Notice/Order, the following steps may be available:

  • Apply to the Court for an adjournment (14 days maximum)

  • Apply to the Court for the Order to be varied or discharged

The steps to take now

Having regard to the potentially very serious outcomes outlined briefly above, operators will wish to ensure that their practices on employing foreign nationals are water tight and that a full paper trail is kept so that, if necessary, the employment requirements can be shown to have been fully satisfied. 

Because of the risk of illegal workers using counterfeit documents, some employers are investing in the type of document scanner used at airports etc to ensure the permanent copies of documents that they are obliged to keep, are genuine.   Don’t accept copy documents – only originals.

If there is any doubt about a worker, the Home Office has a checking service, which should be used. 

Disclaimer

Every care has been taken to ensure that the information contained in this note is accurate, but no liability can be accepted if this is not the case.  Anyone with a problem relating to the legislation is advised to seek independent legal advice so that their particular needs and requirements may be addressed.

Author

Julia Palmer

Consultant - Licensing

Licensing

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01202 813658