Back to top
Article

Immigration meets licensing: not a marriage made in heaven

18 July 16

Licensing briefing: now immigration controls are extending into the world of licensing law, but the draft regulations affecting Scotland are not a model of clarity

by Tom Johnston

As licensing lawyers we might have been forgiven for paying little or no notice to the passage of the Immigration Act 2016, one of Westminster’s most recent statutes. You may be surprised to learn that by regulations, a draft of which has just been published (Draft Immigration (Alcohol Licensing) (Scotland) Regulations), Westminster will be amending the Licensing (Scotland) Act 2005. Two cautionary notes at the outset. The draft may be improved; however, given Governments’ unwillingness to listen, I have my doubts. Secondly, the draft regulations assume that the Air Weapons and Licensing (Scotland) Act is fully in force. To make sense of them you have to have copies of both Acts to hand.

In essence, anyone who is not entitled to work in the UK may not be the holder of a premises or personal licence. (One does question whether anyone working here illegally would choose to draw attention to themselves by making such an application.) Once again the major impact will be on sorely pressed clerks and their staff. A variety of things will have to be notified to “the Secretary of State”, presumably the Home Secretary, though this is not further clarified.

Notices and restrictions

The drafting is of the standard we expect here in Scotland. A premises licence application must be intimated, but not necessarily copied. The Secretary of State has 14 days to respond, beginning with the date on which she is notified. However a personal licence application must be notified and copied; the Secretary of State has 21 days to respond, beginning with the date she receives the notice. The reason for this disparity is not immediately apparent. In each case the time limit is mandatory. There is no provision for extension, but I dare say we will see s 131 invoked in cases of late response.

If the holder of a premises licence ceases to be entitled to work in the UK, that licence will cease to have effect. On a practical level, care should now be taken in appointing as licensee anyone who is here on a visa. My experience is that someone can cease to be entitled to work in the UK for a variety of reasons, even if they are here on a valid visa which has plenty of time to run. The most common example I have encountered is where someone is here on a study visa but has stopped attending the college course, this invalidating the visa. Prospective licensees will now have to notify not only criminal convictions, but also any immigration penalty.

The ground for the Secretary of State to object to a premises licence is not only that the proposed licensee is not entitled to work in the UK. It is “that it is appropriate to refuse the application for the purpose of the prevention of illegal working in licensed premises”. I assume this is intended to strike at someone who has a history of employing illegal immigrants.

Procedural points

Bizarrely, the clerks will have to intimate each and every review application (other than those which they reject as frivolous or irrelevant) and they must intimate the hearing itself. This will apply even if, say, Joe Smith is being hauled up for selling after hours.

The provisions relating to appeals seem a little odd. A sheriff “may not entertain the question [whatever that means] as to whether (a) a person should be, or should have been granted leave to enter or remain in the United Kingdom”. That seems straightforward, to prevent sheriffs being asked to rehear immigration proceedings; however, the regulation continues: “(b) a person has, after the date of the decision being appealed against, been granted leave to enter or remain in the United Kingdom”. Let us suppose review proceedings are instigated because an employee’s visa has expired, and the licence is revoked. If this has been a genuine oversight and that visa is subsequently reinstated, does this mean that the sheriff cannot take that into account? I am unclear as to what “question” falls to be entertained in those circumstances.

Licensing law and clear drafting? That would be a first.

Tom Johnston, Ormidale Licensing Services

Have your say