Posted: Thursday, 16 March 2017 @ 14:00
It is nearly a year since the Immigration Act 2016 hit the
statute books on 12 May 2016. So what parts of it are in force and how does it
affect the trade?
The first relevant measures came into force on 12 July 2016.
It is of course not without significance that the Brexit Referendum vote had
been only a few weeks before.
Although there were existing laws having more or less the
same effect, the government considered it necessary to bring in new specific
laws which made it a criminal offence to work whilst living unlawfully in the
UK, or to work in breach of any conditions on a worker’s right to remain in the
UK. In addition it is a criminal offence for anyone to employ an illegal worker
when the employer knew or had reasonable cause to believe that a person had no
right to work.
It is therefore vital
that employers check that potential employees have the necessary rights
otherwise they will be in danger of facing conviction and fines or, in the most
severe cases, up to 5 years imprisonment.
But further and more significant changes for the trade are
likely to come into force this Spring.
Firstly, the Secretary of State will become a “responsible authority”
and must be served with any application for a Premises Licence or application
for a variation or transfer, but only where the Premises Licence authorises or
will authorise the sale of alcohol or provision of late night refreshment (11pm
Secondly, an individual who is resident in the UK is not
allowed to apply for a Premises Licence for the sale of alcohol or late night
refreshment unless the individual is entitled to work in the UK.
Thirdly, a Premises Licence for the sale of alcohol or late
night refreshment will lapse if the holder ceases to be entitled to work in the
Fourthly, in the above circumstances, when served with an application
the Secretary of State may give notice to the licensing authority that it is satisfied
that the exceptional circumstances of the case are such the granting of the
application would be prejudicial to the prevention of illegal working in
There are also similar provisions regarding Personal Licences.
An applicant must have the right to work in the UK, and if they already have a
Personal Licence it will lapse if their right to work lapses.
Immigration offences will be added to relevant and foreign
offences, so will entitle the Secretary of State to give an immigration
objection notice which would scupper the Personal Licence application.
Hand in hand with these measures there will be a right for
immigration officers, under Section 179 of the Licensing Act 2003, to enter
premises if they have reason to believe that they are being used for the e sale
of alcohol or late night refreshment so they can check if any offence under the
Immigration Acts are being committed.
Of course, if the Brexit negotiations go badly there is every possibility that there
could be a fundamental change in the rights of foreign workers to remain and
work in the UK. Will that also apply to Scottish workers at that stage? I
sincerely hope that such damaging isolationism does not descend upon us, but I
am sure that everyone will be keeping a close eye on developments.
This blog is not intended to constitute legal advice, nor is it intended to be a complete and authoritative statement of the law, and what we say might be out of date by the time you read it. You should always seek legal advice to confirm whether or how any information in this article applies to your particular situation. We offer a free telephone consultation
to discuss your particular circumstances.