Posted by Woods Whur | Licensing Law

I have recently been involved in representing a premises licence holder who had his licence reviewed by the police after being found with seven members of staff for whom he could not, during the raid by immigration officers, provide documentary proof that they were entitled to work in this country. The police brought a review of the premises licence and in the body of the review asked for revocation of the licence citing the case of East Lindsey District Council against Abu Hanif (Zara’s Restaurant). In that case the employer had no records for the illegal employee, the person was not on a payroll, he was paid less than the minimum wage, there were no PAYE records and there was no payment to HMRC for tax.

In quite an interesting case the premises licence holder sought to argue before the District Judge that because this was a matter which brought about a civil penalty, and not a criminal penalty, the crime and disorder licensing objective had not been engaged.

The District Judge agreed with those submissions and therefore dismissed the decision of the licensing authority to revoke the licence.

However, the High Court saw differently and Mr Justice Jay overturned the decision of the District Judge, saying that where there was evidence of defrauding HMRC, exploitation of vulnerable workers and a failure to pay the minimum wage, then in those circumstances, albeit being dealt with by way of a civil penalty, the crime and disorder licensing objective was clearly engaged. Mr Justice Jay didn’t remit the matter back to the authority for a re-hearing, but determined on what he had heard that the revocation should stand.

He did say that “the licensing objectives are prescriptive and are concerned with the avoidance of harm in the future.”

There had also been a decision two weeks before mine in my case in an adjoining licensing authority dealing with premises known as the Star of India. In that case the evidence was that the premise licence holder had made no request for ID documents, was defrauding HMRC, was not paying the minimum wage and in addition there were Licensing Act breaches.

We carefully prepared for our review with the assistance of an organisation called People Force International. They were challenging some of the findings of the immigration officer and had found documentary evidence to deal with some of the suggested instances of illegal workers. By the time we came to the review the investigations had not been completed, and there were still appeals pending in relation to the civil penalty finding.

Amongst other things I successfully argued that the review was at the very least premature, in that the investigation and appeals had not been finalised by the time of the review hearing – even less so by the day that the review was launched and revocation was sought in the application.

We offered robust conditions as an alternative to revocation ,which were as follows:-

  1. The Premises Licence holder will operate a full digital HR management system where all relevant documents are stored for each individual member of staff.
  2. The Premises Licence holder will work with People Force International, or a other similar agency and carry out checks on the Home Office website to verify identification, Visa and right to work documents.
  3. No new member of staff will be able to work at the premises (including any trial period) unless they have provided satisfactory proof of identification and right to work.
  4. All documents for members of staff will be retained for a period of 12 months post termination of employment and will be made available to police, immigration or licensing officers on request.

The licensing authority were not impressed with the quality of the case that had been brought by the police and the fact that there was no immigration officer present to give an update on what had happened and what was the continuing position with the appeals. The Committee was content that the operator was promoting the licensing objectives and now had systems in place which gave them comfort that the errors that had happened before would not happen again in the future.It concerns me that the police force in this case were relying on a High Court decision where the circumstances were significantly different to the matter before the licensing authority. None of the detail had been put in the application for review, nor was it given in all of the submissions to the licensing authority. It just goes to show that there is no substitute for preparing properly for hearings as serious as this.