Scotland: Licensing immigration changes
2018
The draft Immigration (Alcohol Licensing and Late Hours Catering) (Scotland) Regulations 2018 has now been issued and will come into force 21 days after they are made, a date which itself is yet to be determined.
Material changes to the Licensing (Scotland) Act 2005 include the following.
- Premises Licence application
The applicant, where resident in the UK, will need to be entitled to work in the UK otherwise the application will be invalid.
Further, the Secretary of State will becomes a consultee and the Licensing Board will be able to refuse the application if, having regard to any notice issued by the Secretary of State, it is considered appropriate for the prevention of illegal working in licensed premises.
- Period of effect of premises licence
The 2005 Act will also be amended so that a Premises Licence will cease to have effect if an individual holds the premises licence and either ceases to be entitled to work in the UK (when resident in the UK) or becomes resident in the UK without being entitled to work (in the UK).
- Premises Licence Transfer
Where an individual who is resident in the UK, they will not be able to make a licence transfer application unless entitled to work in the UK.
Notice of the transfer application will be given to the Secretary of State who will have 21 days to, if appropriate, submit a notice to the Board that due to the exceptional circumstances of the case they believe granting the application would be prejudicial to the prevention of illegal working in licensed premises.
- Premises Licence Reviews
The Secretary of State will be notified of premises licence Reviews and notify the Board if they are satisfied that the exceptional circumstances of the case are such that the continuation of the licence is prejudicial to the prevention of illegal working in licensed premises.
A new ground for Review will therefore be “that the continuation of the licence is prejudicial to the prevention of illegal working in licensed premises”.
- Personal licence application
As with premises licence applications, a personal licence applicant, where resident in the UK, must be entitled to work in the UK otherwise the application is invalid.
In addition, personal licence applicants will need to state whether the applicant has been required to pay an immigration penalty.
The Secretary of State will be forwarded copies of all personal licence applications and will have 21 days to decide whether to give an immigration objection notice to the Licensing Board on the basis that granting the licence would be prejudicial to the prevention of illegal working in licensed premises.
If the Board receives an immigration objection notice then it will need to determine the application in a hearing in which a ground for refusal will be that “granting the licence would be prejudicial to the prevention of illegal working in licensed premises.”
- Period of effect of personal licence
Under the changes a personal licence will cease to have effect if the personal licence holder ceases to be entitled to work in the UK.
- Duty of personal licence holder to notify Licensing Board of convictions
Immigration penalties will become notifiable under the 2005 Act in line with notification requirements for relevant convictions and foreign offences (and immigration offences will become ‘relevant’).
- Powers of entry – immigration officers
Immigration officers will gain power of entry to premises they believe are being used for the sale of alcohol with a view to seeing whether an offence under any of the Immigration Acts is being committed in connection with the sale of alcohol.
As would be expected, the immigration officer will be able to use reasonable force to gain access and an offence is committed if a person intentionally obstructs the officer exercising their power.
Transitional provisions
As with similar provisions that have now been in force for some time in England and Wales, transitional provisions will ensure that the new law does not retrospectively affect applications and licences made/granted before the new law commences.
Changes to forms
Both the application forms for personal and premises licences will need updating when the law changes and a document proving the applicant’s right to work in the UK will need to be included with the applications. The format of the new application forms is included within the Regulations.
Late Hours Catering Licence
The new regulations will also make changes to the Civic Government (Scotland) Act 1982(Civic Government (Scotland) Act 1982 in respect of Late Hours Catering Licences.
In brief, these will be similar to the above in that:
- applicants resident in the UK must have the right to work in the UK otherwise the application will be invalid;
- the Secretary of State can provide a notice to the Licensing Board that they believe granting or renewing the application would be prejudicial to the prevention of illegal working in licensed premises;
- the licence ceases to have effect if the licence holder either ceases to be entitled to work in the UK when resident in the UK or becomes resident in the UK without being entitled to work in the UK; and
- immigration officers will obtain certain powers of entry in respect of any premises being used between 23.00 and 05.00 for the sale to or consumption by the public of food with a view to seeing whether an offence under any of the Immigration Acts is being committed in connection with the carrying on of that activity.
Should you have any queries, please contact us. We will, as ever, keep you apprised of developments.