Employing 'illegal workers' - and licence reviews

It is not unheard of for licensed premises to employ (and subsequently be caught employing) ‘illegal workers', that is to say an ‘adult who is subject to immigration control'.

This would be where:

(a) the individual concerned has not been granted leave to enter or remain in the United Kingdom, or
(b) his leave to enter or remain in the United Kingdom
(i) is invalid,
(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
(iii) is subject to a condition preventing him from accepting the employment.

In such circumstances, the often normal route is for the authorities to impose on the employer a financial penalty for so employing someone subject to immigration control. This is under section 15 of the Immigration, Asylum and Nationality Act 2006 and is a civil remedy. Alternatively it is possible (but potentially less likely) that the employer might be prosecuted for the offence under section 21 of that Act, which prosecution may result in a conviction.

These are apparently alternative remedies - but the distinction is significant in terms of licensing.

It is often the case that in such cases a premises licence review will follow with the operator at risk of revocation of his licence or any of the other penalties which can follow such a review.

A recent case, in which barrister Sarah Clover was involved, successfully argued that in the case in question only a civil penalty was imposed, this is not a ‘crime' and it was argued does not bring into question the ‘crime objective', without which a review should not have been pursued.

In similar circumstances, it is therefore important to see what approach was taken under the 2006 Act as this may well impact of the appropriateness of any subsequent application for review.