Illegal Workers and Licensed Premises David Dadds JP Barrister, Solicitor-Advocate - Dadds LLP

INTRODUCTION WHAT’S AT RISK TO A LICENSEE? Employing a person who is disqualified from that work by reason of their immigration status in the UK is a crime. It is expected that revocation of the licence – even in the first instance – should be seriously considered, at a review hearing.

LICENSING OBJECTIVES The prevention of crime includes the prevention of immigration crime including the prevention of illegal working in licensed premises. “About 60% of all civil penalties for illegal working served in the UK were issued in the retail, hotel, restaurant and leisure industry sectors…”

CIVIL PENALTIES – NOW A RELEVANT OFFENCE Civil penalties received after 6 April 2017 for immigration matters are treated in the same way as relevant offences. Licensing authorities are required to notify the Home Office Immigration Enforcement Team when an applicant declares that they have been issued with an immigration penalty. The Home Office may object to an application on grounds that granting the personal licence would be prejudicial to the prevention of illegal working in licensed premises. Civil penalties received before 6 April 2017 cannot be taken into account in respect of grant, revocation or suspension of a personal licence.

GUIDANCE AND REVIEWS Licensing Act 2003, s.182 Guidance (April 2017) “All employers, irrespective of size or sector, are required to prevent the employment of illegal workers”.

ENTITLEMENT TO WORK In the UK applying for a premises licence or personal licence you must demonstrate an entitlement to work in the UK. The Immigration Act 2016 amended the Licensing Act 2003 with effect from 6 April 2017 so that an application made on or after that date by someone who is not entitled to work in the UK must be rejected.

Offence Offence of employing a worker “knowing or having reasonable cause to believe” he/she has no right to work in UK Offence in force since 12.7.2016 Civil penalties - £20,000 per illegal worker

Home Office Guidance, 6 April 2017

CHECKS “An employer’s guide to right to work checks” (Home Office, August 2017) https://www.gov.uk/government/uploads/system/uploads/attachm ent_data/file/638349/Employer_s_guide_to_right_to_work_checks _-August_2017.pdf

3 SIMPLE STEPS Employers can prevent the employment of illegal workers by carrying out a simple 3 step check to confirm a potential employee is entitled to work in the UK

STEP 1 Obtain; You must obtain original documents from either List A or List B of acceptable documents at Annex A.

STEP 2 Check; You must check that the documents are genuine and that the person presenting them is the prospective employee or employee, the rightful holder and allowed to do the type of work you are offering, etc.

STEP 3 Copy; You must make a clear copy of each document in a format which cannot manually be altered, and retain the copy securely: electronically or in hardcopy.

APPEALS

Case law East Lindsey District Council v Abu Hanif (trading as Zara’s restaurant and takeaway) [2016] EWHC 1265 (Jay J)

Case law “The question was not whether the respondent had been found guilty of criminal offences before a relevant tribunal, but whether revocation of his licence was appropriate and proportionate in the light of the salient licensing objectives, namely the prevention of crime and disorder. This requires a much broader approach to the issue than the mere identification of criminal convictions. It is in part retrospective, in as much as antecedent facts will usually impact on the statutory question, but importantly the prevention of crime and disorder requires a prospective consideration of what is warranted in the public interest, having regard to the twin considerations of prevention and deterrence.”

Closure Notices & Compliance Orders Issued under para 16 of Sch 6 to the Immigration Act 2016 Compliance Order will lead to automatic premises licence review

Closure Notices & Compliance Orders Purpose : To allow Home Office Immigration Enforcement to quickly close a business premises where illegal working is being conducted, and there is a history of illegal working. To place an employer under a compliance regime, as directed by the court, to prevent an employer operating at the premises from employing illegal workers.

Compliance Orders Application to Magistrates’ Court for Illegal Working Compliance Order Various sanctions available from requiring immigration checks to closure of premises for up to 12 months. See s.38 and Sch.6 of Immigration Act 2016 Premises Licence Review triggered by Order: s.167(1A) LA03

Right to Work Checklist https://www.gov.uk/government/uploads/system/uploads/attachment _data/file/638349/Employer_s_guide_to_right_to_work_checks_- August_2017.pdf

ANNEX A Original Documents Required 1. A passport showing the holder, is a British citizen having the right of abode in the UK. 2. A passport or national identity card showing the holder is a national of a European Economic Area country or Switzerland. 3. A Registration Certificate or Document Certifying Permanent Residence issued by the Home Office. 4. A Permanent Residence Card issued by the Home Office. 5. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office. 6. A current passport endorsed to show that the holder is exempt from immigration control. 7. A current Immigration Status Document issued by the Home Office, together with permanent National Insurance number. 8. A full birth or adoption certificate issued in the UK, together with permanent National Insurance number. 9. A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with permanent National Insurance number. 10. A certificate of registration or naturalisation as a British citizen, together with permanent National Insurance number.

ANNEX B – GROUP 1 Original Documents Required 1. A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question. 2. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder which indicates that the named person can currently stay in the UK and is allowed to do the work in question. 3. A current Residence Card (including an Accession Residence Card or a Derivative Residence Card) issued by the Home Office to a non-European Economic Area national who is a family member of a national of a European Economic Area country or Switzerland or who has a derivative right of residence. 4. A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.

ANNEX B – GROUP 2 Original Documents Required 1. A Certificate of Application issued by the Home Office under regulation 17(3) or 18A (2) of the Immigration (European Economic Area) Regulations 2006, to a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old together with a Positive Verification Notice from the Home Office Employer Checking Service. 2. An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service. 3. A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.

Be a Smartie Remember the 3 Steps