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Immigration Act 2016

How the Immigration Act will affect you.

The Immigration Act 2016 (the Act) has had a significant impact on operators of licensed premises and is set to make further amendments affecting premises and personal licence holders.

We have already seen the offences of illegal working and employing illegal workers introduced from the Act in July 2016, along with immigration officers being granted powers to enter premises to investigate potential offences being committed in connection with licensable activities.

Although the Secretary of State is yet to confirm exactly when further amendments will come into force, they were expected to commence in Spring 2017 and operators should be prepared for imminent changes.

To begin with, and perhaps rather belatedly, it will be a requirement for applicants seeking a premises licence permitting the sale of alcohol or late night refreshment to be entitled to work in the UK. In the case of existing licence holders who cease to be entitled to work in the UK, the licence will lapse. However, it will be possible to submit an interim authority notice within 48 hours and a transfer application to reinstate the licence within 28 days.

The Secretary of State is to become a Responsible Authority for applications relating to licences permitting sale of alcohol or late night refreshment, meaning that representations could be made against relevant new, variation and transfer applications. Specifically, the Secretary of State will be able to object to an application where they are ‘satisfied that exceptional circumstances of the case are such that granting the application would be prejudicial to the prevention of illegal working in licensed premises’.

As with premises licences, personal licence holders and applicants will also need to be entitled to work in the UK and if that ceases then their licence will lapse. In cases where the DPS’s licence lapses the sale of alcohol from the premises immediately becomes unlawful, opening the premises licence holder up to a potential review and criminal prosecution.

Amendments will also make offences under any of the Immigration Acts ‘relevant offences’ for the purposes of personal licences.

Finally, the Act will grant immigration officers the power to issue illegal working closure notices if they are satisfied that the relevant requirements are not being met. This will prevent access to the premises by anyone other than residents and prohibit paid or voluntary work being undertaken at the premises (unless authorised by the immigration officer) for up to 48 hours. Following this, unless the notice is cancelled a court must hear an illegal working compliance order within 48 hours of the notice being issued. The court can make such an order as it deems appropriate, but in particular it may restrict access to the premises and require employers to carry out right to work checks. An order could have effect for up to 12 months, although an immigration officer can apply to have this extended.

Operators will need to be diligent with respect to immigration matters and their staff if they are to avoid significant risks to their business.

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