Since the introduction of the Immigration Act 2016 into the Licensing Act 2003, and the additional changes to the section 182 guidance document, the use of illegal workers in licensed premises has become a thorny issue.
We have now had considerable success in defending premises who have been caught with illegal workers. The first of these was the Red Lion Truck Stop on the M1 some 18 months ago.
More recently I was instructed earlier this year to look after the operator of two convenience stores near Braintree, both of which had the benefit of premises licences to sell alcohol. The premises licences had been reviewed in March 2017 and a different legal team represented the operator. Unfortunately they were revoked as a result of the review proceedings and the reasons for the revocation centred around the premises licence holder admitting that he had made mistakes in employing illegal workers at the premises.
The Sub-Committee, both prior to the hearing and during the hearing, had not received any documents to evidence that he had put new processes in place to prevent this from happening in the future. The licences were therefore revoked as they were not persuaded that robust procedures/systems had been or were about to be introduced to ensure that immigration and right to work checks would be carried out appropriately. They formed the view that the premises licence holder’s approach to compliance with legal requirements was at best limited, which in turn raised concerns about actions the premises licence holder may take in future to ensure promotion of the licensing objectives in respect of the prevention of crime and disorder.
I was instructed to take over representation of the premises licence holder’s interests shortly after the review proceedings had revoked the two premises licences.
We lodged a notice of appeal to the Magistrates’ Court, which of course stayed the decision to revoke and allowed the premises licence holder to continue trading.
During this period, we reached out to the Licensing Authority and asked if we could have a meeting to discuss where we were in regards to potential settlement of any appeal. Braintree District Council were amenable to meet me as I had not been instructed in the review proceedings. At this meeting I highlighted the deficiencies that I had seen in the preparation and delivery of the defence of the review proceedings and how I would be looking to change this for any appeal. Rather than going down the root of a full contested appeal hearing, I asked them whether in the light of the new evidence that I could produce they would be amenable to settling the appeal by way of the addition of conditions to the premises licence. Having considered their position, they felt that the members should make a decision rather than the officers and therefore the appeal at the Magistrates’ Court was settled with the appeals being remitted back to the Licensing Authority for a fresh determination.
We disclosed additional evidence on the Authority and Essex Police, having instructed People Force International to conduct an audit of the procedures in place for right to work checks for all of their staff at the two premises. We offered the Authority the following conditions to be attached to the premises licence:-
- The premises licence holder will operate a full HR management system where all relevant documents are stored for each individual member of staff.
- All copies of relevant documents for members of staff will be retained for a period of 24 months post termination of employment and will be made available to Police, Immigration or Licensing Officers on request.
- The premises licence holder will work with People Force International (or any other similar agency) to carry out checks on the Home Office website and verify identification documents such as right to work documents to ensure that all new members of staff can be legally employed.
- No new member of staff will be able to work at the premises unless they have provided satisfactory proof of identification and right to work.
Essex Police determined not to accept these conditions and attempted to rely on the case of East Lindsey District Council v Abu Hanif (t/a Zara’s Restaurant and Takeaway) [2016] EWHC 1265 (Admin).
We attended the remitted review hearings for the two premises licences before Braintree District Council Licensing Sub-Committee on the 28 November 2017. The Police were represented by Counsel and also brought a senior immigration officer in their request to maintain the revocation of the two licences.
I was delighted that I was able to persuade the Licensing Sub-Committee to allow for the reinstatement of the licences by way of the additional conditions being attached to the premises licences and by way of one further condition which was offered during the hearing in that an unannounced periodical audit would take place whereby a consultant would come in to check that all of the relevant documents were being maintained.
A critical point of difference between the two sets of review proceedings was the introduction of People Force International, who I have worked with successfully on a number of occasions. They provided an HR package after an audit and ensured that all of the correct right to work documents were retained for each members of staff. Some of these documents run out of time and therefore it is clearly critical that a forward diary entry is put in place to ensure that the continued right to work documents are available.
One of my arguments in the case, which the Licensing Sub-Committee accepted, was that the facts of the East Lindsey District Council case were significantly different to mine. In my case we had a member of staff who had proved to us his ability to be legally employed through right to work documents. These had lapsed but his wife was applying for full residency status in the UK and he had produced letters to my client from his then solicitors explaining that this gave him a right to continue his employment. It was a moot point whether this was the case but on a belt and braces approach we should have had up to date verification of his ability to work rather than relying on a letter from a firm of solicitors. Interestingly, my client did not receive a civil penalty for the employment of this person and by the time we got to this week’s hearing, his wife had won his appeal and he was legally in the UK. My client, believing that he was legally employable, had paid for him to go on the BII course to get his qualification to become a personal licence holder and was actually the Designated Premises Supervisor for both venues. He was on the payroll and was being paid net of tax with PAYE being fully complied with and the revenue receiving the correct amount. This was all audited and he was paid a good living wage. In addition, he was renting accommodation from my client. Certainly nothing was been hidden about his employment. The case of East Lindsey District Council was strikingly different in that the premises licence holder in that case had:
- Employed the illegal worker without paperwork showing a right to work in the United Kingdom.
- Paid him cash in hand.
- Paid less than the minimum wage.
- Did not keep or maintain PAYE records.
- Reported to deduct tax from the employee.
- Did not account to HMRC for the tax deducted but kept it himself.
In that case there were serious criminal offences being committed by the premises licence holder and the Licensing Sub-Committee in Braintree found that the case law provided significant points of difference from my client’s position. In addition, they were impressed with the evidence given by People Force International’s representative about the way the systems would be robust and audited moving forward. The Police, in their attempts for revocation jumped straight to paragraphs in the section 182 guidance that deal with the “reviews arising in connection with crime” suggesting in this case that as the premises licence holder had employed a person who was disqualified from work by reason of their immigration status, the jump should be straight to revocation.
However, the Committee was impressed with our argument citing paragraph 11.20 of the guidance which states “in deciding which of these powers to invoke, it is expected that Licensing Authorities should so far as possible seek to establish the cause or causes of the concerns that the representations identifies. The remedial action taken should generally be directed at the causes and should always be no more than appropriate and proportionate response to address the causes of concerns that instigated the review.”
The other section of the guidance document which is of critical importance in cases such as this, paragraph 2.6, was introduced in the April 2017 version of the guidance and states “the prevention of crime includes the prevention of immigration crime including the prevention of illegal working in licensed premises. Licensing Authorities should work with Home Office Immigration Enforcement, as well as the Police, in respect of these matters. Licence conditions are considered appropriate for the prevention of illegal working in licensed premises might include requiring a premises licence holder to undertake right to work checks on all staff employed at the licensed premises or requiring that a copy of any document checked as part of the right to work check are retained at the licensed premises.”
I was very impressed with the way that Braintree District Council approached this case and that the Licensing Sub-Committee grasped the points of difference between our instant cases and that of the East Lindsey decision. They determined that it was appropriate and proportionate to promote the licensing objectives to impose additional conditions on the licences which allows the premises to continue to trade. I should also point out that the two premises were significantly invested in. The quality of the fit out and interior of the two shops was exceptional. The CCTV system was all encompassing digital and covered internal and external positions. Importantly, the Committee commented on the fact that there had been no suggestion of any other crime and disorder issues at the premises, nor any intelligence to suggest that illegal workers had been employed since the original raid of the premises in November 2016.