From the 6 April 2017, premises and personal licence holders in England and Wales will have their immigration offences considered when licences are granted.

Another business losing its licence for not carrying out the correct checks of an employee's right to work in the UK highlights that some Licencing Authorities are already using immigration legislation to regulate licensed premises in their area ahead of these amendments coming into force.

Amendments to the Licensing Act 2003 brought in by the Immigration Act 2016, give heavy penalties to licence holders who don’t check employees' right to work and comply with immigration laws.

Offences under the Immigration Act 2016 have been added to the list of relevant offences listed in Schedule 4 of the Licencing Act 2003 to be considered when granting or renewing a licence. 

Key changes in the legislative framework

We have highlighted below the key changes for operators of licensed premises that will come in to force on the 6 April:

Premises licences

  • Applicants must be entitled to work in the UK
  • Licence applications can be rejected if the Licensing Authority considers it appropriate for the prevention of crime or for the prevention of illegal working in licensed premises to do so
  • The Secretary of State will become a responsible authority where a premises is, or proposes to sell alcohol by retail or provide late night refreshment. The Licensing Authority must refuse an application where they are satisfied that granting the application would be prejudicial to the prevention of illegal working in licensed premises
  • A licence will lapse if a licence holder loses their right to work in the UK
  • The Secretary of State must receive a copy of an application for  transfer of a licence to sell alcohol or late night refreshments.

Personal licences

  • Applicants must be entitled to work in the UK
  • Applicants must inform the Licencing Authority if they have been convicted of an immigration offence (in the UK or abroad) or if they have been required to pay an immigration civil penalty
  • Any personal licence will be invalid if the holder ceases to be entitled to work in the UK
  • If an applicant has been convicted of an immigration offence (in the UK or abroad) or has been required to pay an immigration civil penalty, the Licencing Authority must notify the Secretary of State even if the applicant satisfies all other conditions
  • The Secretary of State then has 14 days to object.  An objection triggers a hearing where the Licencing Authority must reject the application if it agrees with the Secretary of State that the application would be prejudicial to the prevention of illegal working in licenced premises.

Rights of entry

Immigration Enforcement Officers will have new powers to enter premises selling alcohol or providing late night refreshments to check whether any offences under the Immigration Act are being committed in connection with the licensable activity.

Impact of the changes

Although these legislative changes have yet to be introduced, some licensing authorities have already used immigration legislation to regulate licensed premises in their areas. These further changes will only seek to strength the hand of the local regulator.

On 28 March 2017 East Lindsey District Council suspended a shop's licence for three months after the police found a man working there who had entered the country illegally.  In recent years East Lindsey District Council has revoked the licences of several businesses in their area under immigration legislation.

Three restaurants had their alcohol licences revoked by Cheltenham Borough Council where illegal immigrants were found to be working.  The Council used their power to review premises' licences on the grounds of prevention of crime and disorder to punish companies neglecting their obligation to prevent illegal working.

This further increase in regulation of the licensed sector will only increase the administrative burden that operators already face.

When employing new staff, it is important to carry out thorough identification checks in accordance with the current government guidance on right to work checks and also keep a thorough paper trail to show compliance as immigration offences can result in the loss of a licence in addition to civil penalties or prosecution under the immigration legislation.