Out-Law News 3 min. read
11 Apr 2017, 3:49 pm
Licensing expert Christopher Rees-Gay of Pinsent Masons, the law firm behind Out-Law.com, said that the revised 'section 182' (S182) guidance (151-page / 1.37MB PDF) mainly reflects sections of new immigration laws that recently came into force.
Under the relevant amendments introduced by the Immigration Act, people are barred from holding a premises licence, which authorises licensable activities, such as selling alcohol, if they are not eligible to work in the UK. They are also not able to hold a personal licence if they are not eligible to work in the UK.
The reforms, which came into force on 6 April, place new obligations on local authorities on the checks they need to carry out when employing new staff and what information they need to share with Home Office officials where they believe applicants have convicted immigration offences.
The new Home Office guidance called on local authorities to treat all licence applications equally.
"Assumptions should not be made about a person’s right to work in the UK or their immigration status on the basis of their nationality, ethnic origin, accent, the colour of their skin, or the length of time they have been resident in the UK," the Home Office said.
The guidance also explains how the licensing process should work when applicants are migrants or otherwise restricted in the length of time they can work in the UK.
"If an applicant has restrictions on the length of time they may work in the UK, a premises licence or personal licence may still be issued, but the licence will cease to have effect when the right to work lapses," according to the guidance.
"Migrants who are subject to UK immigration control may be granted permission to enter or remain in the UK, with a condition permitting employment, on a time-limited basis or on an indefinite basis. When the person’s stay is time limited, this will be shown in their immigration documentation. It is possible for a migrant to apply to extend their stay, and if they do so before their previous status expires, they continue to have any right to work that they previously had while their application and any associated administrative review or appeal is outstanding," it said.
Rees-Gay said that the new S182 guidance features a new chapter on summary reviews, which was previously contained in separate documentation issued by the Home Office. Summary reviews are powers the police have where they suspect that a premises selling alcohol is associated with serious crime or serious disorder. The powers allow for interim conditions to be attached to a licence and for a fast-track licence review to take place.
The new guidance also confirms that the Home Office Immigration Enforcement has become a 'responsible authority' by-designate under the licensing regime, Rees-Gay said.
The guidance said: "The Immigration Act 2016 made the Secretary of State a responsible authority in respect of premises licensed to sell alcohol or late night refreshment with effect from 6 April 2017. In effect this conveys the role of responsible authority to Home Office Immigration Enforcement who exercises the powers on the Secretary of State’s behalf. When Immigration Enforcement exercises its powers as a responsible authority it will do so in respect of the prevention of crime and disorder licensing objective because it is concerned with the prevention of illegal working or immigration offences more broadly."
Rees-Gay said that the guidance could need further updating if the government chooses to act on a recent report by a parliamentary committee. Earlier this month a report by a committee set up to scrutinise the operation of the 2003 Licensing Act in England and Wales said that a "radical comprehensive overhaul" of the Act is needed.
"It remains to be seen how long it will be before further revisions are made to the section 182 guidance in the light of the recently released House of Lords, Licensing Act 2003 post-legislative scrutiny report," Rees-Gay said.
In Scotland, the equivalent guidance, under section 142 of the Licensing (Scotland) Act 2005, was issued on 16 April 2007 and has never been updated.
The Scottish guidance was published before the Licensing (Scotland) Act 2005 came fully into force so it also does not take account of how the Act has operated or case law subsequently established. In addition, there have been a number of legislative reforms to the Act in the years since it came into force, including provisions in the Alcohol etc (Scotland) Act 2010, the Criminal Justice and Licensing (Scotland) Act 2010 and the Air Weapons and Licensing (Scotland) Act 2015.