The latest changes to the Licensing Act 2003 reflect the continued impact for the sector of the Immigration Act 2016 and are aimed at making it more difficult for illegal workers to work in licensed premises in England and Wales.
Premises Licence – beware risk of lapse
Individual applicants must be entitled to work in the UK and must prove their entitlement by producing a copy of a specified document with the application. If an existing licence holder ceases to be entitled then the licence will lapse. Individual applicants must declare that they understand that the licence will not be issued if they do not have the entitlement to live and work in the UK and that the licence will become invalid if they cease to be entitled to live and work in the UK. In addition the applicant must also declare that the DPS named in the application is entitled to work in the UK and is not subject to a condition preventing them from doing work relating to the carrying on of a licensable activity. The applicant must have seen a copy of the DPS’s proof of entitlement to work if appropriate.
Warning: The requirement to provide proof of entitlement extends beyond new licences and also includes premises licence variations and transfer applications.
The Secretary of State will now become a responsible authority for applications permitting the sale of alcohol or late night refreshment. So moving forward the Secretary of State will be able to object to an application for a Premises Licence, variation or transfer if: “satisfied that exceptional circumstances of the case are such that granting the application would be prejudicial to the prevention of illegal working in licensed premises”
Personal Licence – proof of entitlement to work in the UK
Both applicants and holders must now be entitled to work in the UK and again if that entitlement ceases the licence will lapse. Applicants must demonstrate entitlement to work in the UK and also that they are not subject to a condition preventing them from doing work in relation to the carrying on of a licensable activity. This is done by providing a copy of a specified document with the application.
The Criminal Record Disclosure form is now renamed as the “Disclosure of Convictions and Civil Immigration Penalties and Declaration” form.
Beware: The obvious risk will arise here if the Personal Licence holder in question is also the DPS, in such cases the sale of alcohol becomes immediately unlawful and must stop. If a Premises Licence lapses, an Interim Authority Notice must be submitted with 28 days in order to reinstate the licence.
The Immigration Act 2016 had already introduced offences for illegal working and employing illegal workers at licensed premises. However these latest changes give rise to additional risks for operators and extra diligence will be needed in relation to immigration issues to avoid placing the Premises licence in jeopardy.
This diligence should also be extended to buyers of licensed premises to ensure that enquiries are made into any history of immigration law, convictions, penalties or restrictions. It has now become even more important that operators and purchasers of licensed premises know exactly who is working at their premises at all times and that they are entitled to live and work in the UK.
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.