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New measures on immigration status and right to work impact on licensing applications

On the 6 April 2017 the Home Office issued new Guidance and forms to deal with a proliferation of illegal workers in licensed premises.

Please find a link below for the Guidance and new forms which need to be used from this date.

The Home Office highlights in the documentation that the policy seeks to prevent illegal working in premises licensed for the sale of alcohol and late night refreshment by introducing immigration safeguards into the existing licensing regime. Its aspiration is that the measures will prevent premises and personal licences being issued to individuals who, if resident in the UK, do not have permission to be in the UK or work in the sector and where to grant a licence will be prejudicial to the prevention of illicit immigration, crime and illegal working.

Section 36 of, and Schedule 42 to, the Immigration Act 2016 amend the Licensing Act 2003 and introduce immigration safeguards in respect of licensing applications. These measures were not well circulated in advance of their effective date of the 6 April 2017 for England and Wales.

In real terms the following consequences arise:

  1. Licences will not be granted to those without lawful immigration status or entitlement to work in the UK. As a result of this there are practical implications for those making applications, in that all applications (by individuals irrespective of their nationality or the size of the business they represent) for licences will be required to include documentary evidence of their lawful immigration status and entitlement to carry out work in a licensable activity, and checks will be performed on a non-discriminatory basis. In real terms this has meant that in applications to transfer Designated Premises Supervisors we have now been asked to send identification and confirmation of right to work as part of the application process.
  2. The Secretary of State will be added to the list of existing responsible authorities under the Licensing Act 2003. All applications for personal licences will require the applicant to demonstrate that they are eligible to carry out work in the licensed business and they must declare any previous criminal offences, together with immigration offences (including receipt of civil penalties). Where the applicant declares in their application for a personal licence a previous immigration offence or a comparable foreign offence, the relevant Licensing Authority will forward the application to the Home Office for further consideration. The Home Office will decide whether to make representations to the Licensing Authority, in their status as a responsible authority.

Where it is necessary to prevent illegal working and immigration crime, the Secretary of State (Immigration Enforcement) will submit to the relevant Licensing Authority an objection to the grant of a licence, or request that conditions be applied to a premises licence. Immigration Enforcement may also request the review of an existing premises licence as a result of enforcement activity which identifies the commission of immigration offences or where the holder of a licence issued before the 6 April 2017 no longer has immigration permission to work. In all cases it is the Licensing Authority that makes the decision on the licence application or review, having considered any representations. The measures do not change the existing process of licensing hearings and appeals.

  1. Section 179 of the Licensing Act 2003 in relation to rights of entry to investigate licensable activities has also been amended by the 2016 Act to align the power of entry of an immigration officer with that of a licensing enforcement officer. This power of entry will be used to investigate illegal working following receipt of intelligence and will facilitate joint working operations of immigration officers with licensing enforcement officers, the police and bodies involved in the inspection of licensed premises.
  2. The new measures will ensure that, for those licence holders who immigration status in the UK is time limited, their licence, if issued on or after the 6 April 2017, will lapse at the point that their immigration permission and their entitlement to work in licensable activities comes to an end.

Application forms have been amended in Regulations: the Licensing Act 2003 (Miscellaneous Amendments) Regulations 2017 to include a requirement to provide details of the date of birth, nationality and evidence of an entitlement to carry out work in the licensable activity with the application. These evidential requirements are broadly similar to existing right to work checks, which have been in place since 2006, and are set out in the application forms.

This has immediately had an impact in our office as our forms have had to change and we have had to request the additional information that the change in legislation has brought about.

This could potentially create delay in applications and is a factor which should be borne in mind when taking instructions. We are presuming that Licensing Authorities have had better notification of these changes than we have.