Posted by Woods Whur | Alcohol, Licensing Law

One of the new areas that will be covered in the 4th edition of Manchester on Alcohol and Entertainment Licensing Law when it is published later this year –the book is currently at proof-reading stage, after which it will be ready to go to the printers – is changes made to the Licensing Act 2003 (2003 Act) by provisions in the Immigration Act 2016 (2016 Act) and powers contained in the 2016 Act that might affect premises having a premises licence or other authorisation under the 2003 Act. The latter includes a power in s 38 and Sched 6 for immigration officers to issue an illegal working closure notice (IWCN) in respect of any premises where an employer operating at the premises is employing an illegal worker and there has been a previous breach of illegal working legislation. The IWCN prohibits, for a period specified in the notice, access to the premises and paid or voluntary work being performed on the premises unless in either instance there is written authorisation from an immigration officer. The maximum period is normally 24 hours, although it can be 48 hours if the IWCN is issued by an immigration officer of at least the rank of immigration inspector. Paragraph 2(2)–(5) of Sched 6 provides:

(2) The maximum period that may be specified in an illegal working closure notice is 24 hours unless sub-paragraph (3) applies.
(3) The maximum period is 48 hours if the notice is issued by an immigration officer of at least the rank of immigration inspector.
(4) In calculating when the period of 48 hours ends, Christmas Day is to be disregarded.
(5) The period specified in an illegal working closure notice to which subparagraph (3) does not apply may be extended by up to 24 hours if an extension notice is issued by an officer of at least the rank of immigration inspector.

There is an element of uncertainty here in respect of the extent to which Christmas Day is to be disregarded and the following section is what the 4th edition will say on this matter.

It is clear from para 2(4) that Christmas Day is to be disregarded when calculating the

48 hour period mentioned in para 2(3) and thus an IWCN issued on the day before

Christmas might extend through Christmas Day and Boxing Day without exceeding

the 48 hour period. Less clear is whether Christmas Day is to be disregarded when an

extension notice is issued extending the period of up to 24 hours by a further period

of up to 24 hours (and the position is the same in respect of closure notices under s 76

of the ASBCPA 2014 – see 11.14.4 above). One view is that it ought not to be disregarded

because, although the period here might be 48 hours, the reference in para 2(4)

to disregarding Christmas Day seems to refer to the 48 hour period mentioned in para

2(3) i.e. an IWCN issued in the first instance for a period of up to 48 hours. This might

be reinforced by the fact that the provision in para 2(4) on disregarding Christmas day

precedes any reference to extending the period of up to 24 hours by a further period

of up to 24 hours, since this provision is contained in a later subparagraph, para 2(5).

On this view, focusing on the wording of para 2, Christmas Day will not be disregarded

but will be taken into account when an IWCN is issued for up to 24 hours on

the day before Christmas and the period is then subsequently extended. Another

view, based on a purposive interpretation of para 2(4), is that if Parliament intended

Christmas Day is to be disregarded when calculating a continuous 48 hour period (the

period specified in para 2(3)) it might reasonably be taken to have intended that it

should also be disregarded when calculating a cumulative 48 hour period (the period

specified in para 2(5)). The period is essentially the same in each instance and if

Christmas Day is to be disregarded in one instance it is difficult to see why it should

not be disregarded in the other. That said, it seems that Christmas Day is not to be

wholly disregarded, since there is no exclusion in para 2 of Christmas Day in respect

of an IWCN issued for a period of up to 24 hours. Such an IWCN might therefore

encompass part or all of Christmas Day, notwithstanding that the specimen IWCN in

Annex B of the IW Guidance appears to suggest to the contrary (‘This notice shall

cease to have effect immediately before [insert time 24 or 48 hours from time of issue

excluding Christmas Day] on [insert date] unless an extension notice is issued or the

court orders that it is to continue in force’). Although the two competing views seem

to be finely balanced and it is difficult to state a ‘better view’, it is submitted that the

balance is marginally tipped in favour of Christmas Day being disregarded under

para 2(4) only in respect of an IWCN issued in the first instance for a period of up to

48 hours. This view seems to accord with the meaning of ‘the period of 48 hours’ in

para 2(4) when taken in the context of para 2 as a whole and with Parliament not

intending, on the wording of para 2, that Christmas Day is to be disregarded in all

circumstances.

As you can see from the second sentence in the text above, the same point arises in respect of closure notices issued under s 76 of the Anti-Social Behaviour, Crime and Policing Act 2014 (ASBCPA 2014), which have replaced the (now repealed) closure power provisions for identified premises that were contained in s 161-166 of the 2003 Act. This reflects the fact that the IWCN provisions in the 2016 Act were closely modelled on the closure notice provisions in the ASBCPA 2014 and, in consequence, the uncertainty in respect of Christmas Day is not confined to the ASBCPA 2014 but also extends to the 2016 Act!

© Colin Manchester