Immigration, illegal working, and licensed premises
A recent case that Gregg Latchams was instructed in highlighted the potential serious consequences to the operators of licensed premises of employing illegal workers.
In this particular case, the premises in question were the subject of a visit by the enforcement arm of the Immigration Service. As officers entered the premises staff members attempted to flee from the premises by climbing out of a kitchen window, but were stopped and arrested.
A total of 5 staff members were arrested as they were found to have overstayed their permitted leave to remain in the UK.
As a consequence of this, the Home Office Immigration Enforcement Service commenced review proceedings of the premises licence, on the basis that the licence holder had failed to meet the licensing objective of prevention of crime and disorder with illegal working having been established on the premises.
Whilst in this particular matter we were able to preserve the licence on behalf of the new owners of the premises, the leading case in this area (East Lindsey District Council v Abu Hanif (t/a Zara’s Restaurant and Takeaway)  EWHC 1265) makes it clear that:
- The crime prevention objective does not require a crime to have been reported, prosecuted or established in court; and
- That the failure to pay the minimum wage and failure to account to the HMRC for tax deducted from wages engaged the “crime” objective.
In addition to this the Guidance issued to local authorities by the Home Office under s.182 of the Licensing Act makes it clear that there is certain criminal activity that may arise in connection with licensed premises which should be treated particularly seriously. This includes employing a person who is disqualified from work by reason of their immigration status
What should employers do?
It is unlawful to employ someone who does not have the right to work in the UK or who is in breach of their immigration conditions.
There are a number of offences that an employer can commit if they fail to check, before employing someone, that they had the right to work:
- Criminal offence – to employ someone who it either knows or has “reasonable cause to believe” is an illegal worker (Immigration Act 2016). Depending on the offence, an employer may receive an unlimited fine and/or imprisonment of up to 5 years. The earnings of illegal workers may also be seized under the Proceeds of Crime Act 2002.
- Civil fine – up to £20,000 for each individual found to have been an illegal worker.
- Businesses can also be closed for 48 hours pending the outcome of an application for an illegal compliance order.
To comply with their obligation to prevent illegal working, an employer must carry out the three step check:
- Check original documents from an acceptable list.
The Home Office has a checklist of the acceptable documents here.
2. Check that the documents are valid with the applicant present. Check that:
- the documents are genuine, original and unchanged;
- the dates for the applicant’s right to work in the UK have not expired;
- photos are the same across all documents and look like the applicant;
- dates of birth are the same across all documents;
- the applicant has permission to do the type of work you’re offering;
- for students check evidence of their study and vacation times;
- if 2 documents give different names, check that the applicant has supporting documents showing why they’re different, i.e. marriage certificate/divorce decree.
3. Make and keep copies. Record the date the check was completed.
- make a copy that cannot be changed, for example a photocopy;
- for passports, copy any page with the expiry date and applicant’s details (for example nationality, date of birth and photograph) including a work visa;
- for biometric residence permits and residence cards, copy both sides;
- for all other documents you must make a complete copy;
- keep copies during the applicant’s employment and for 2 years after they stop working for you;
- record the date the check was made.
If the job applicant cannot show their documents
- You must ask the Home Office to check your employee or potential employee’s immigration employment status.
- If the applicant has the right to work the Home Office will send you a ‘Positive Verification Notice’. You must keep this document.
This is an area of increasing compliance and employer’s and licence holders should take proactive steps at the outset to ensure that staff have the right to work otherwise they are likely to be subject to licence review proceedings and potentially both criminal and civil liability.
Where rights to work are time limited, employers should make a diary note of these dates and carry out further checks at the relevant time to ensure that the employee continues to have a right to work. If the employee is unable to satisfy you that they have a continuing right to work then you should seek further advice before taking action .