Entiltlement to work in the United Kingdom - amendments to the Licensing Act 2003 - implications for business owners and operators of licensed premises
The Immigration Bill received Royal Assent in May and became the Immigration Act 2016. There are notable sections affecting the licensing Act 2003, and came into force on 6 April 2017. The general purpose of the 2016 Act is to make it more difficult to live and work illegally in the United Kingdom, and introduces changes in respect to illegal working on licensed premises.
Changes to the Licensing Act 2003
1. Premises Licence Applications
- Individuals resident in the UK will not be able to apply for a premises licence unless the individual is entitled to work in the United KIngdom.
- The Secretary of State (Home Office) will become a Responsible Authority where the premises is or proposes to sell alcohol by retail or provide late night refreshment. This will allow the Immigration Service to make representations against the grant of a premises licence.
- Premises licences will lapse if the licence holder ceases to be entitled to work in the UK whilst resident in the UK whilst resident in the UK (or becomes resident without being entitled to work).
2. Premises Licence Transfers
- Individulas resident in the United Kingdom will not be able to apply for a licence transfer if the licence authorises the sale of alcohol or late night refreshment (neither may they give an interim authority notice) unless the individual is entitled to work in the UK.
- The Secretary of State (Hiome Office) will need to be served with a copy of the application (where the premises sells alcohol by retail or provide late night refreshment) and will have 14 days to object if satisfied that the exceptional circumstances of the case are such that granting the application would be prejudicial to the prevention of illegal working in licensed premises.
In a hearing convened due to the Home Office's objection the licensing Autority must reject the transfer application if it considers it appropriate for the prevention of illegal working in licensed premises to do so.
3. Personal Licences
- Those not entitled to work in the United Kingdom will not be able to apply for a Personal Licence
- Immigration offences (under schedule 4 paragraph 7A Licensing Act 2003 i.e. an offence under any of the Immigration Acts) will become relevant for Personal Licences.
- Immigration penalties contrary to s15 of the Immigration and Nationality Act 2006 or s23 Immigration Act 2014 also become disclosable subject to certain exceptions.
- The Secretary of State (Home Office) will need to be seved a copy of the application if the application has an unspent immigration offence,foreign offence equivalent or has been required to pay an immigration penalty. The Home Office will have 14 days to object to the application. In a hearing convened due to teh Home office's objection, the licensing authority must reject the application if it considers it appropriate for the prevention of illegal working in licensed premises to do so.
- There will be a new duty for Personal Licence Holders to inform the licensing authority if required to pay an immigration penalty.
- A Personal Licence will cease to have effect if the holder ceases to be entitled to work in the UK.
4. Rights of Entry
- Immigration officers will be able to enter premises (selling alcohol or providing late night refreshment) with a view to seeing whether an offence under of the Immigration Acts is being committed in connection with the carrying on of a licensing activity.
5. Illegal working Closure Notices
- An immigration officer will be able to issue an 'illegal working closure notice' for up to 48 hours if he or she is satisfied, on reasonable grounds, that an employer operating at the premises is employing a person who does not have the correct work status. A closure notice may only be issued if reasonable efforts have been made to inform any person who has interest in the premises that the notice is to be issued. Additionally, the immigration officer is required to consult any person he belives is appropriate.
Implementation of the Licensing Act 2003
In 2001, the Government announced plans to reform the country's licensing laws and produced the Licensing Bill.
The Licensing Bill received Royal Assent on 10 July 2003 and came fully into force on 24 November 2005. The changes in the law affect anyone who is concerned with:
- pubs and nightclubs
- off licences
- restaurants that serve alcohol
- businesses offering hot food between 11pm and 5am (including takeaways and mobile caterers)
- hotels, guest houses and other places that sell alcohol
- private members clubs and social clubs
- theatres and amateur dramatic groups
- organisers of occasional entertainments (see below for more details)
- indoor sporting events.
The licensable activities are:
- The sale by retail of alcohol
- The supply of alcohol by or on behalf of a club, or to the order of, a member of a club
- The provision of regulated entertainment
- The provision of late night refreshment
The Licensing Act 2003 has changed the existing laws concerning the type of licences needed to provide any of the above facilities. Under the new system:
- A premises licence will be required for any place which offers entertainment, refreshment at night and/or alcohol
- A personal licence will be required by anyone who wants to sell or supply alcohol for consumption on or off their premises
- Licensees, the council and other agencies must all work to promote the licensing objectives
- The Police will have greater power to deal with problems and be able to close premises, which are the focus of disorder
- There will be no fixed permitted hours on closing times
- The council, and not the court, will deal with all of the new licences.
Guidance and information
We have prepared a series of fact sheets and guidance notes to assist applicants to make applications under the Licensing Act 2003. See Licensing Downloads for more information.
If you require any further guidance from the police regarding licensing applications they can be reached at 'D' Division Headquarters by ringing 01332 613037. Alternatively, you can access the local area police website to talk to an officer regarding local issues.
A Premises Licence can be granted for a business supplying alcohol or entertainment or late night food (on or off the premises)
When applying for a Premises Licence applicants will have to submit:
- a plan of their building
- an Operating Schedule (a brief description of how the premises will be operated safely)
- a fee - the fees are in bands corresponding to your non-domestic rateable value and are set by the Government
- the name of the designated premises supervisor (only for those premises that supply alcohol)
The applicant must advertise their application in a local newspaper within 10 working days of making the application to the licensing authority.
The four licensing objectives are:
- prevention of crime and disorder
- prevention of public nuisance
- public safety
- prevention of harm to children.
We must carry out its functions under the legislation with a view to promoting the licensing objectives and must issue a licensing statement setting out its policy.
We will have to grant a licence unless it conflicts with one of the four Licensing Objectives. The Responsible Authorities may also impose conditions that promote the licensing objectives, for example, noise control measures to prevent public nuisance.
If representations are made about either granting or varying a licence in any way, our Licensing Committee (made up of Councillors) will hold a Hearing to consider the application. For further information see Current Applications.
Club Premises Certificates
The Licensing Act 2003 recognises that volunteer and social clubs give rise to different issues for licensing law than commercially run premises selling direct to the public.
These clubs (such as the Royal British Legion, working men's or cricket or rugby clubs) are generally organisations where members join together for a particular social, sporting or political purpose and then combine to purchase alcohol in bulk for members.
The clubs carry on activities from premises to which public access is restricted and alcohol is supplied other than for profit. For these reasons, the 2003 Act preserves aspects of earlier alcohol licensing law which applied to 'registered members clubs' and affords clubs special treatment outside the normal premises licence arrangements.
Clubs which meet specified criteria set out in the 2003 Act are known as 'qualifying clubs' and the authority under which they may supply alcohol and conduct other 'qualifying club activities' from their premises is a club premises certificate issued by the licensing authority. The grant of a club premises certificate means that a club is entitled to certain benefits, which include the authority to supply alcohol to its members and sell it to guests without the need for any member or employee to hold a personal licence, and the absence of a requirement to specify a designated premises supervisor. There are also more limited rights of entry for the police and other authorised persons, as the premises are considered private and not generally open to the public.
The arrangements for applying for club premises certificates are extremely similar to those in respect of premises licences. For example, similar provisions apply regarding the requirement for advertisement of applications and the making of representations to the licensing authority as apply in the case of applications for premises licences. For further information please see Clubs - Guidance.
A key feature of the new licensing regime is to allow anyone to have a say in licensing applications that they think may affect them, as well as ensuring that professionals such as the police, public health, fire, planning, trading standards, child protection and environmental health officers are able to submit their recommendations, and take action if problems occur after the grant of a premises licence.
The 2003 Act allows anyone to make a 'representation' if they think they will be affected by an application for a premises licence. This includes any individual, body, business or organisation. Whilst any of these persons may act in their own right, they may also request that a representative makes a representation to the licensing authority on their behalf. A representative may include a legal representative, a friend, a Member of Parliament, or a local ward or parish councillor who can all act in such a capacity.
If they think granting a new, or varying an existing licence or certificate would undermine any of the licensing objectives, they can make representations to the relevant licensing authority. Any representation made by these persons must be 'relevant' to the 'licensing objectives'. They can also ask the licensing authority to review a licence or certificate if problems occur which undermine the licensing objectives.
If someone wishes to appeal against a licensing decision, they will have the right to do so to the magistrates' court. For further information on representations please see Current Applications.
People who are considering opening licensed premises may apply for a provisional statement.
This allows new premises to be prepared in the confidence that a full licence will be granted, providing that it is built according to the original Operating Schedule and plans submitted to us, and that there have been no material changes in the meantime.
Temporary Event Notices
Licences will not be needed for small events where fewer than 499 people are likely to attend, and which last for less than 168 hours (1 week), at a time.
Someone who holds a Personal Licence will be able to hold up to 50 temporary events a year (including 10 late TENs). Non-Personal Licence holders will be able to hold up to 5 temporary events a year (Including 2 late TENs).
A Temporary Event Notice must be given to the licensing department, Environmental Health and the police at least 10 working days (5-9 working days if a late TEN) before an event of this sort can be held. NB This does not include the day of receipt of the Notice by the Council and the police, or the actual day of the event. The police may object to a Temporary Event Notice on crime and disorder grounds. For further information see Temporary Event Notice.
To get a Personal Licence you must:
- be over 18
- not have any relevant criminal convictions as spelt out in the Act
- possess an approved licensing qualification
- have the entiltlement to live and work in the UK.
- pay the required fee.
Personal Licences will be needed to supervise the sale of alcohol in any premises including pubs, off-licences, restaurants, hotels and private members' clubs.
You can apply for a Personal Licence to the council for the area in which you live. This will then remain the council responsible for continuing to licence you, even if you move away from the area.
Personal Licences will be valid for 10 years. There will be various duties on holders of Personal Licences, and the court can forfeit their licence if they are convicted of any relevant offences.
The police will have the right to object to a licensee on the ground of crime prevention, particularly if someone has a relevant criminal conviction. For further information see Personal Licence.
Review of Premises Licences
Sometimes, licensed premises can create some problems for local residents. On the rare occasion this happens, we will try and resolve the issues informally. However, any of the Responsible Authorities, or any person, body or organisation can apply for a Review of a licensed premises.
Providing a complaint is not frivolous, vexatious or repetitive, a Hearing will be held by a licensing committee made up of Councillors. This committee may decide to take no action, to impose extra conditions on the licence, or It can also suspend either all or part of the licence for up to three months.
For further information and guidance please see Problem Premises and Reviews.
Security Industry Authority (SIA)
Door supervisor licences and badges are changing. During 2004 door supervisor licences and badges currently issued by the police and some local authorities will be phased out.
The Security Industry Authority (SIA) has been set up by the Government to issue licences instead. You will then need only one licence to work anywhere in England and Wales.
It will be against the law to work as a door supervisor without an SIA licence.
The SIA will only grant a licence to people who have the right skills and training to do the job, and who can pass a criminal background check.
SIA licences are not being issued yet but anyone wishing to make an application needs to give their details to the SIA now. More information will then be sent to them in time to apply.
Details can be submitted to the SIA on 08702 430 100 or see the SIA Website.
NB: This information is only intended as a general guide to changes in the law. You should consult your own professional advisers for more detailed advice.
Licensing Applications and Guidance Information
You can download licensing forms and application guidance information from the Licences and Licensing Downloads section. See Licensing Downloads.
Information on other websites
For further information on any of the above please contact the Licensing Department using the details below:
Erewash Borough Council
The Civic Centre
Tel: 0115 9071113
Fax: 0115 9071121
Erewash Borough Council is under a duty to protect the public funds it administers, and to this end may use the information you provide on the above application forms for the prevention and detection of fraud. It may also share this information with other bodies responsible for auditing or administering public finds for these purposes.
Further information is available on our website (see Fair Processing Notice).