Immigration Act 2016 - and its implications for licensing - update and commencement

We refer to our previous news outlining proposed changes to the Licensing Act 2003 being introduced by the above Act (https://www.john-gaunt.co.uk/news/immigration-act-2016-and-its-implications-for-licensing)

The amendments to the Licensing Act in the Immigration Act 2016 are due to come into force on 6 April 2017, subject to the Minister signing the relevant Commencement Order - but this is largely expected to be the formality it usually is.

To remind:

1. Licensing elements are contained in Schedule 4 and the principal points of note include the following.
   1. Premises Licence applications
      • Individuals resident in the UK will not be able apply for a premises unless the individual is entitled to work in the UK.
      • The Secretary of State will become a Responsible Authority where the premises is or proposes to sell alcohol by retail or provide late night refreshment.
   2. Premises Licence lapse
      • Premises licences will lapse if the licence holder ceases to be entitled to work in the UK whilst resident in the UK (or becomes resident without being entitled to work).
   3. Premises Licence transfers
      • Individuals resident in the UK will not be able apply for a licence transfer if the licence authorises the sale of alcohol or late night refreshment (neither may they give an interim authority notice) unless the individual is entitled to work in the UK.
      • The Secretary of State will need to be served with a copy application (where the premises sells alcohol by retail or provides late night refreshment) and will have 14 days to object if satisfied that the exceptional circumstances of the case are such that granting the application would be prejudicial to the prevention of illegal working in licensed premises.
      • In a hearing convened due to the Secretary of State’s objection the Licensing Authority must reject the transfer application if it considers it appropriate for the prevention of illegal working in licensed premises to do so.
   4. Personal licences
      • Those not entitled to work in the UK will not be able to apply for a personal licence.
      • Immigration offences (under schedule 4 paragraph 7A Licensing Act 2003 i.e. an offence under any of the Immigration Acts) will become relevant for personal licences.
      • Immigration penalties contrary to s15 Immigration, Asylum and Nationality Act 2006 or s23 Immigration Act 2014 also become disclosable subject to certain exceptions.
      • Secretary of State will need to be served a copy of the application if the applicant has an unspent immigration offence, foreign offence equivalent or has been required to pay an immigration penalty. The Secretary of State will have 14 days to object to application.
      • In a hearing convened due to the Secretary of State’s objection, the Licensing Authority must reject the application if it considers it appropriate for the prevention of illegal working in licensed premises to do so.
      • There will be a new duty for personal licence holders to inform Licensing Authority if required to pay an immigration penalty.
      • A personal licence will cease to have effect if the holder ceases to be entitled to work in the UK.
   5. Rights of Entry
      • Immigration officers will be able to enter premises (selling alcohol or providing late night refreshment) with a view to seeing whether an offence under any of the Immigration Acts is being committed in connection with the carrying on of the licensable activity.
2. Immigration Act 2016 - Closure Notices (schedule 6) – these came into force on 1 December 2016

   The new Act created new powers of illegal working closure notices and illegal working compliance orders. Very briefly:

   • An Illegal Working Closure Notice will be able to be issued by a Chief Immigration Officer (or more senior) in certain circumstances but principally due to an illegal worker being at the premises (which is further defined in the Act). The Notice will prohibit for a period specified:
     • access to the premises other than by a person who habitually lives on the premises; and
     • paid or voluntary work being performed on the premises, except where so authorised.
   • The Closure Notice will be able to last up to 24 hours or up to 48 hours if issued by an immigration inspector (or higher).
   • Unless cancelled, the Court must within 48 hours hear an application for an Illegal Working Compliance Order. There are several options available to the Court (including up to a 14 day adjournment of the hearing), one of which will include prohibiting or restricting access to the premises.
   • An Illegal Working Compliance Order will be able to last for 12 months albeit they may be extended but cannot be in force for a period exceeding 24 months in total.