Agenda item

To consider and determine an application for a review of a Premises Licence in respect of Tale of Spice, Malmesbury Road, Chippenham, SN15 1QA made by the Home Office (Immigration Enforcement).  The report of the Public Protection Officer – Licensing is attached.

Application by the Home Office (Immigration Enforcement) for a Review of a Premises Licence in respect of The Tale of Spice, Malmesbury Road, Chippenham

 

Roy Bahadoor (Public Protection Officer – Licensing) presented his report which outlined the licensing objectives and the step the Sub Committee could take to meet these objectives.

 

The Public Protection Officer – Licensing reported that on 20 November 2019 an application for a review of the Premises Licence was received from the Home Office (Immigration Service), this was accepted as a valid application.  The application was made on the grounds set out below:

 

·       The Premises Licence Holder has failed to meet the licensing objective, the prevention of crime and disorder, due to illegal working identified at the premises.

·       A visit to the premises on 20 September 2019, identified seven persons found to be working illegally.

·       A previous visit on 16 April 2015, identified seven persons found to be working illegally.

·       A previous visit on 12 June 2015, identified one person found to be working illegally.

 

The Public Protection Officer – Licensing gave details of how the Premises Licence Holder or the Review Applicant could appeal the decision made by the Licensing Sub Committee to the Magistrates Court.

 

In accordance with Section 52 (3) of The Licensing Act 2003 the Licensing Sub Committee was required to take such steps as it considered necessary for the promotion of the licensing objectives.

 

The licensing objectives were: -

 

·              The Prevention of Crime and Disorder

·              Public Safety

·              The Prevention of Public Nuisance

·              and the Protection of Children from Harm.

 

Such steps available to the committee were: -

 

·                To modify the conditions of the licence

·               To exclude a licensable activity from the scope of the   licence

·                To remove the Designated Premises Supervisor

·               To suspend the licence for a period not exceeding three months

·                To revoke the licence

·                Or to determine that No steps are necessary

 

Key points raised by Gemma Corfield (Immigration Officer) Home Office (Immigration Enforcement) were that:

 

·       Immigration Enforcement were new Responsible Authorities to the Licensing Act having only been added in April 2017.  Immigration Officers are responsible for everything after the border which will include people who have overstayed their visa and those who have entered the UK illegally.  Operations respond to intelligence where this is information to suggest that businesses are employing illegal workers.  Immigration Enforcement provide support response to the Police when foreign nationals are arrested, assist with establishing identity and where necessary detain or remove them.  Immigration Enforcement are able to prosecute for those most serious immigration offences;

 

·       The prevalence of illegal workers in the licensing trade is so grave that the government has made significant changes to the Licensing Act making Immigration a responsible authority and empowering licensing authorities;

 

·       That the review of the Premises Licence was being requested on the grounds of preventing crime and disorder;

 

·       Working illegally in the UK is a criminal offence and an illegal worker may receive a custodial sentence of up to six months and an unlimited fine.  The Immigration Service are committed to tackle the economic motivation behind illegal migration and those who facilitate it.  However, employers also have an important role to play by undertaking simple checks on their employees’ right to work in the UK.  Employers have had a responsibility since 1997 to ensure they do not employ illegal workers and since 2008 there are also civil and criminal sanctions for non-compliance with a possible civil penalty of up to £20,000 per illegal worker and could also be subject to a custodial sentence and an unlimited fine;

 

·       The High Court Judgement East Lindsey District Council v Abu Hanif (trading as Zara’s Restaurant and Takeaway) 2016 states that prosecutions do not have to occur in order for the crime prevention objective to be undermined and the Licensing Authority to be able to take action;

 

·       On 19 September 2019, Immigration Officers from the Home Office Immigration Enforcement Alcohol Team attended the Premises and nine individuals, two of which tried to escape via a flat roof were located and questioned.  Only two of those individuals, one of who was the Premises Licence Holder were established to have leave to be in and work in the UK;

 

·       A civil penalty application was currently being considered by the Home Office.  Illegal working was undoubtably taking place at the premises and this fact is not disputed by the Licence Holder;

 

·       The Immigration Service is asking the Sub Committee to consider measures to prevent illegal working at the premises in the future via the following actions

 

i)               Removal of the Designated Premises Supervisor (‘DPS’)

ii)              Suspension of the Premises Licence to enable a new DPS to be appointed and the application of conditions.  These conditions to require that a system be put in place to ensure that the required employment checks are conducted of any prospective employees before employment commences and that copies of the documents relating to the checks are retained and available for checking upon request

 

·       The amended guidance under Section 182 (paragraphs 11.27 and 11.28) states that where reviews arise, and the licensing authority determines that the crime prevention objective is being undermined through the premises being used to further crimes, it is expected that revocation of the licence – even in the first instance – should be seriously considered.  The Immigration Service felt that the Premises Licence Holder/Designated Premises Supervisor have seriously undermined the prevention of crime and disorder objective by allowing offenders to work at the premises.  This role is a person in whom trust is invested and if staff are employed without the appropriate employment checks how can the Panel be confident that the correct training is being provided in respect of the supply and service of alcohol?

 

Questions were asked of the Immigration Officer (Review Applicant) by the Sub Committee members as follows:

 

Q        Please could you confirm what you are asking for?

A        We would like the licence to be revoked, that would be the ideal outcome for us but if not, we would ask you to consider removing the Designated Premises Supervisor and a suspension of the licence

 

Q        The previous event that happened at the premises in 2015, I note that you were not a Responsible Authority at that time, what was that outcome following that visit?

A       We did not have the licensing power in 2015 and we dealt with this through the civil penalties route but I do not know the outcome. 

 

Q        You allude to other issues at the premises – could you clarify what you meant?

A        During the visit in September 2019 I was outside of the premises when Officers entered, as people escaped and were on the flat roof, so I was responsible for their safety.    At the time of the visit we encountered people who were working in an open and functioning restaurant and there were customers present.  Out of all of the persons encountered only 2 had the right to be there.  Those in the kitchen and behind the bar were assumed to be working there.  Some were arrested upstairs.  I have no evidence of how much they were paid but those on the premises were working and the restaurant functioning and we were in no doubt those people were working.

 

Q        How many staff where in at the time?

A        Nine staff in, seven of interest to us and we detained six members of staff.

 

Q        You say you are seeking revocation – yet your reports comments are showing that you wish to make a strong stance to the public rather than a suspension which you view as more of a soft touch – can you clarify?

A        The intention is that the business would have to find a new DPS and effectively prove that they have the correct methods in place to check all staff.

 

Q        I wish to understand the process you went through on the day of the visit.  You say you were outside and there with issues with those outside and then you say you establish those who are working at the premises, how did you establish that?

A        We receive an intelligence package and then as a team we seek powers of entry to the Premises.  At the time of entry, we have officers based outside so minimise any risks and some officers go inside.  We clear the restaurant area, clear the kitchen area and then all individuals perceived to be employees are brought forward to the front of the property so not to hinder business.  We have intelligence for illegal workers, my colleagues will gather personal details and use fingerprint checkers.  We would run a series questions and their responses will help us to fill in the picture of their immigration status.

 

Questions were asked of the Immigration Officer (Review Applicant) by Mr Frank Fender (on behalf of the Premises Licence Holder) as follows:

 

Q        Please could you clarify the date of the visit to the premises.  The report says       20 September but in your oral submission you said 19 September

A        I confirm the visit was 20 September 2019.

 

Q        In the papers you have submitted within the Agenda it seemed you wished for a revocation, but at no time did you say revocation in your speech, you said you would be seeking the removal of the DPS and suspension and for conditions to be added.  Would you be happy for strict conditions to be applied to the licence?

A        I did say revocation would be our preference.

 

Q        You say that it is an employer’s responsibility to carry out right to work checks, is that a legal duty to carry out, is it required by law and is there an Act you can point me to where it says that?

A        My understanding is that it is a legal obligation.  For someone to be employed

          In the UK they need to have the right to work and be legally present. 

 

A reference was made by the Sub-committee to the Immigration Act 2016 (section 35) where it is an offence to employ a person who is disqualified by reason of that employee’s immigration status or has reasonable cause to believe that person is disqualified from employment by their immigration status. 

 

Q        I cannot find any legal requirement but accept that it is recommended that such checks are carried out.

A        It is an offence to knowingly employ someone who has no right to work – an employer should take such checks.

 

Q        You stated that the addition of conditions is purely duplicating law, but we say there is no legal basis to carry out the checks.

A        You must take checks and if you employ someone who maybe illegal you must establish their status otherwise by default, you are employing illegally.  You should obtain legal status for working.

 

Mr Frank Fender, Licensing Consultant (on behalf of the Premises Licence holder) then addressed the Sub Committee.  Mr Fender highlighted the following:

 

·       Mr Rahaman deeply regrets and is very sorry for situation he finds himself in, his business is at risk and he is not proud;

 

·       The purpose of a review hearing is to establish if the licensing objectives are being promoted and if not, what is appropriate to ensure that they are moving forward.  The purpose is not to determine guilt or otherwise or to impose punishment – that is a matter for the Courts of Law;

 

·       Mr Rahaman has been the Premises Licence Holder and Designated Premises Supervisor on 18 October 2016.  There is a 90-cover capacity at the restaurant and these are all based on the ground floor.  This restaurant is managed independently from the Tale of Spice in Pewsey, this is stated as there is reference to the Pewsey restaurant in the papers;

 

·       Mr Rahaman has operated the Premises since October 2016 and since then there have been no problems or issues raised.  You will be aware that the Local Authority advertise when a Review application is submitted and that there are no other relevant representations.  We will say that this proves that Mr Rahaman has a good track record as no other concerns have been raised;

 

·       In reference to the by the Immigration Service on 20 September we feel that there is some confusion in the papers about what was found at the time of this visit, the numbers of those located/found to be working illegally/arrested differs between the Council Licensing Officer’s report and the evidence supplied by the Immigration Service.  This information is confusing, and it doesn’t help that the details have been redacted;

 

·       The review application on page 32 of the Agenda refers to two previous visits (April 2015 and June 2015 and then April 2014 is mentioned.  We would remind you that these visits took place before the current Premises Licence Holder was in place;

 

·       Mr Rahaman was not knowingly employing people who did not have the right to work.  No civil penalty notices have been issued following the visit – we feel sure that if they thought he knowingly employed illegal workers then he would have been issued with a civil penalty notice;

 

·       The Immigration Service supply you with case law to say why you can revoke and we remind you that each application will be considered on its own individual merits as stated in your Council’s Statement of Licensing Policy.  The Immigration Service are inviting you to revoke the licence because of what has happened before and show that you can punish the Premises Licence Holder by revoking the premises licence;

 

·       Since the visit on 20 September the Premises Licence Holder has recognised that he needs to put things into place.  He has sought advice from an Independent Immigration Consultant and a Licensing Consultant and made sure that all records are up to date and all subsequent checks are diarised.  These records have been sent to you although we accept this was very late;

 

·       It could seem that these actions were taken only as a result of the visit but in this case the physical right to work checks were carried out, but they had not been documented.  For this reason, we believe that an appropriate response to this review application would be to modify the conditions on the premises licence rather than revoke the licence;

 

·       On page 47 of the agenda at paragraph 3.1 the Immigration Service tell you that the addition of conditions to the licence is insufficient. There has been no dialogue between the Immigration Service and the Licence Holder.  They have rejected plans to do anything other than revoke and have closed their mind to options.  We take issue with that conditions being appended are insufficient or in fact are just a duplication of law.  Failure to comply with conditions has severe consequences and will help to focus the mind of any Premises Licence Holder;

 

The Premises Licence Holder accepts there have been shortfalls in meeting the required standard and he regrets this position.  He accepts he should have documented checks, and this would have prevented the allegations made.  He doesn’t accept he knowingly employed people who were disqualified due to their immigration status but he does accept that sanctions are likely to be imposed:

 

·       The Section 182 guidance advises in deciding which power to invoke, the Local Authority should as far as possible seek to identify remedial action which she should be an appropriate and proportionate response to address the concerns raised in the review.  We believe that this should be achieved by modifying the conditions on the premises licence as this would ensure that proper and robust checks are in place.  The following conditions were proposed by Mr Fender (with subsequent comments by Mr Fender shown in italics):

 

i)               The premises licence holder will operate a full HR Management system where all relevant documents, to prove entitlement to work, are stored for each individual member of staff.  This is not a duplication of law.

 

ii)              All copies of relevant documents for members of staff will retained for a period of 24 months post termination of employment and will be made available to Police, Immigration or Licensing Officers upon request.  This is not a legal requirement or a duplication of law, but the Premises Licence Holder could show this as evidence in the event of a future Home Office operation.

 

iii)            The premises licence holder will work with an immigration compliance business to carry out checks on the Home Office website and verify identification documents such as right to work documents to ensure that all new members of staff can be legally employed.  The Premises Licence Holder will work with an immigration compliance business on the Home Office website and verify identification documents such as right to work documents to ensure that all new members of staff can be legally employed.  This is over and above legal requirements to show all checks carried out as per the Immigration Service requirements.

 

iv)            No new member of staff will be able to work at the premises unless they have provided satisfactory proof of identification and right to work. This includes any work undertaken on a trial period or a part time basis.  Not a legal requirement but by conditioning this it affords a consequence if not complied with.

 

v)             The premises shall be subject to an unannounced compliance audit by a suitably qualified licensing consultant at least once every three months for a period of 12 months. The audit shall include compliance with conditions and the right to work of those working at the venue. A copy of these audits will be made available to the police and licensing authority within one month of the audit taking place.  Not a legal requirement but a visit could occur at any time to carry out a spot check of compliance.

 

·       The Premises Licence Holder has already taken steps to ensure he complies with the requirements and with the imposition of the proposed conditions will ensure that the measures he has already taken are continued.  If he doesn’t comply there are serious legal consequences and we feel that it the conditions are an appropriate and proportionate response to address the causes of concern in the review application; and

 

·       There have been no other representations summitted and it is indicative that since October 2016 there have been no issues or concerns raised, this record of excellent management cannot be ignored.  No other issues have come to light since the visit and the Premises Licence Holder has taken proactive steps and we think you should modify the conditions.  This would be an appropriate and proportionate response, not to revoke today but to append conditions.

 

Questions were asked of the Premises Licence holder by the Sub Committee members as follows:

 

Q        How does the Premises Licence Holder keep up to date with current legislation within the licensing aspects of running a business?

A        I did not know but since then now I do.

 

Q        Ignorance is not a defence.  The legislation changed in 2017 and introduced this.  This has a direct implication on your licence which you have failed to keep up to date with.  This has come into place since you have taken over and you have said you don’t know about it.  It is your responsibility to comply with current legislation and you seem to have missed out a piece of legislation that is critical for this premises licence.

A        The legislation on the right to work checks did not change in 2017, but it was then the Immigration Service became a Responsible Authority

 

Q        My concerns are that you have not kept up to date with changes and with what are your duties are as a Premises Licence Holder. You have missed out on a piece of legislation.

A        Mr Fender replied on behalf of the Licence-holder that for the previous investigations in 2015 the licence couldn’t be reviewed but now it can.   My experience is that once people are aware it is up to the individuals to keep up to date with legislation – things come to a head once this happened.

 

Q        What do you do?  The answer appears to be nothing.  You have been running the premises since 2016.  There have been no allegations of breaches of the other licensing objectives – why don’t you know about it?

A        I didn’t know about it.

 

Q        It is your responsibility.

A        I am just the manager.

 

Q        But you are the licence holder. When you refer to employment law you say that your proposed conditions don’t duplicate any law.  You are supposed to carry out checks.   You have suggested that your conditions will enforce employment law through the licensing objectives.  I don’t understand why we should be using the licence to get them to run the business properly using employment law - are you following proper employment law with this people?  You have also said there are no issues noted.  You say there have been no other changes to legislation, this may have been going on for some time but only now been picked up.  You are now saying that you have checked employees right to work but perhaps you haven’t been doing it right for years and this is just what we know about.

 

Mr Fender answered on behalf of the Licence Holder.

A        My understanding is that there is no legal requirement in law for those records to be checked and maintained.  By proposing those conditions, they would be bound by law under the Local Authority and that brings it onto a legal footing.  I understand those checks are not required by law and this would allow the Local Authority to tighten up.  The two offences are to work illegally and to knowingly employ someone who doesn’t have the right to work. There are no civil penalty notices.  They should appear by default, but we see nothing in law.

 

 

Q        Where you involved at the premises before you were the Premises Licence Holder in another role?

A        Yes, as a waiter.

 

Q        As the papers from the Immigration Service have been redacted we cannot cross reference the documents you have supplied to see if the workers are the same.

 

Mr Fender answered on behalf of the Licence Holder.

 

A        The papers submitted (in confidential Agenda Supplement 1) are related to the current members of staff not those at the time of the visit in September 2019,

 

Mr Fender answered on behalf of the Licence Holder.

 

Q        Mr Rahaman was aware of the impact of illegal activity given that he was around at the time of previous visits and regardless of his legal responsibility and the fines that were given before, why didn’t he check that the same problems didn’t arise again.  He has seen that penalties have been applied and that there is damage to the business – why did he not think to check that they should be able to work in UK.

 

Mr Fender answered on behalf of the Licence Holder.

 

 

A        I have had a have had similar conversation with the Premises Licence Holder.  He was an employee before then.  He said that when he took over he carried out the right to work checks but didn’t document this.  He accepts that there is a shortfall in recording.  The Premises Licence Holder stated that he didn’t know who was in to work and did not know the consequences of working and that he respects the law.

 

Q        Are you saying that you employ people who are sent to you to work in the restaurant by someone else   Had you had concerns with them about their right to work in your restaurant?

A        Yes, I did, but they were sent to help out.

 

Q        You didn’t ask any of those people about their right to work - did you assume they had been checked by your boss?

A        Yes.

 

Q        In your new role as Premises Licence Holder you were accepting these workings in to the restaurant and accepting that others had checked them?

A        I didn’t know as Premises Licence Holder I had to check, and I am very sorry for that, I was not aware of my responsibility. Once I know it I put things in place.

 

Q        When did you take the qualification for the Personal Licence Holder?

A        In 2016. 

 

 

The Public Protection Officer – Licensing asked the following questions of the Premises Licence Holder:

 

Q        Who is employing staff for the premises?

A        Another person, the business owner.

 

Q        We have heard that there were previous visits in 2014 – 2015, could you clarify your position at that time.  We have you listed on our records as the Food Business Operator since 2011 and not just from 2016 when you were Premises Licence Holder.

A        I am there for a long time.

 

Gemma Corfield on behalf of the Immigration Service asked the following questions of the Premises Licence Holder:

 

Q        Are the premises managed independently.  Is there an overall manager supplying staff for yours and to other restaurants?  Is there a connection with the owner of the Tale of Spice in Pewsey?

A        As far as I know there is no connection between the restaurants.

 

The Sub Committee asked the Immigration Officer the following:

 

Q        Is a civil penalty notice going to be issued in this case?

A        Consideration of the case is still underway, and a decision is yet to be made on the issue of a civil penalty notice.

 

Q        If you do make a prosecution in a case who would you look to prosecute?

A        We would prosecute the owner of business and we would actively look for who employed those staff.

 

A Sub Committee Member asked the following question to the Premises Licence Holder’s representative:

 

Q        Are you aware if the same owner of the business has remained through the 3      visits from the Immigration Service or did it liquidate and get new owners.  Are           they different limited companies following liquidation of the previous one?

A        The owners are not the same I believe from my enquiries.

 

Mr Fender on behalf of the Premises Licence Holder made the following points in summation:

 

·       Any sanctions must be appropriate and proportionate and to revoke the premises licence would close the restaurant, the family business would be lost, and the employment of staff would be lost.  Is this proportionate in a case where a long-standing businessman has admitted a minor error.  There is no evidence of wrong doing since the visit and you need to take into account that there are no other representations made in this case; and

 

·       A proportionate response is to modify the conditions of the premises licence to make sure that the appropriate checks are carried out.  The consequences of failing to abide by such conditions will go a long way to ensure problems are not repeated.

 

The Immigration Service did not wish to make any closing submissions.

 

The Sub Committee then adjourned at 11.25am and retired with the Senior Solicitor and the Democratic Services Officer to make a decision on the licensing application.

 

The Hearing reconvened at 12.30pm.

 

The Senior Solicitor advise that she gave legal advice on the wording for the decision and possible remedies but no significant legal advice was given to the Sub Committee and the parties did not make any further representations to the Sub-Committee.

 

Following the deliberations of the Sub Committee Members, it was

 

Resolved:

 

The Northern Area Licensing Sub Committee in respect of the Tale of Spice, Malmesbury Road, Chippenham, resolved;

 

1.    To remove the Designated Premises Supervisor – Mr MD Hafizur Rahaman.

 

2.    To add a condition to the Premises Licence that all relevant records must be maintained and retained accordingly of the right to work of any person working at the premises.  Such records to be made available for inspection on demand by any Responsibility Authority.

 

3.    In order for the above condition to be actioned and for a new Designated Premises Supervisor to be put in place at the Premises, that the Premises Licence LN/000003324 be suspended for a for a period of 2 months until 16 March 2020.

 

Reasons for the Decision

 

The Sub Committee was of the view that the evidence presented by the Home Office Immigration Enforcement Alcohol Team (Immigration Enforcement) and the Licensing Authority demonstrated that the Premises Licence Holder/Designated Premises Supervisor had failed to effectively manage the premises so far as the employment of staff were concerned and had failed to actively promote the licensing objective of the prevention of crime and disorder.

 

The Premises Licence Holder was found to have employed or retained staff at the business who did not have the relevant permits to work in the United Kingdom (UK).  The Premises Licence Holder had not kept sufficient records to prove to the Responsible Authorities that any staff working at the Premises were legally able to work and had not updated himself, nor undertaken appropriate training on the employer’s legal requirements needed for the employment of staff in particular to take steps to manage the business to ensure staff who were employed at the business had the relevant permits to work in the UK.   

 

The Sub Committee determined that the Premises Licence Holder had failed to comply with his obligations in respect of the following licensing objective: -

 

·       The Prevention of Crime and Disorder.

 

In reaching its decision, the Sub Committee took account of all the written representations contained within the Agenda and the Agenda Supplement, in addition to the oral arguments presented at the hearing and made on behalf of the Review Applicant (Home Office Home Office Immigration Enforcement Alcohol Team ( Immigration Enforcement)) , the Public Protection Officer (Licensing), the Premises Licence Holder, Mr MD Hafizur Rahaman and the representative for the Premises Licence Holder, Mr Frank Fender. 

 

The Sub Committee also considered and took account of the relevant provisions of the Licensing Act 2003 (in particular Sections 4 and 52); the four licensing objectives, the guidance issued under Section 182 of the Act (in particular paragraphs 11.27 and 11.28) and the Licensing Policy of Wiltshire Council.

 

Conclusions

 

The Sub Committee acknowledged the Premises Licence Holder’s apology and the efforts made by the Premises Licence Holder since the visit on 20 September 2019 to ensure where applicable that staff held the appropriate permit to work in the UK.  The Sub Committee also noted that the Premises Licence Holder had held the Premises Licence since October 2016 and was not the Premises Licence Holder when the two visits from the Immigration Service took place in 2015. 

 

However, the Sub Committee were mindful that the s182 guidance (paragraphs 11.27 and 11.28) considers the employment of persons not permitted to work in the UK to be criminal activity which should be treated particularly seriously, and revocation of the Licence should be seriously considered even in the first instance.

 

In view of the evidence heard, the Sub Committee determined that they did not have confidence in the ability of the Premises Licence Holder as DPS to uphold the licensing objective to prevent crime and disorder in future. In particular the Sub Committee were concerned that the Premises Licence Holder appeared to have not have made himself aware of all his legal responsibilities concerning the employment of illegal workers.  

 

The Sub Committee concluded that in this case the removal of the Designated Premises Supervisor, the imposition of an additional condition on the Premises Licence and a suspension of the Premises Licence for a period of 2 months was both proportionate and necessary to meet the licensing objective of the prevention of crime and disorder.

 

Right to Appeal and Effective Date of Decision

 

The Sub-committee informed the parties that the Premises Licence Holder, the party that applied for the review and any Responsible Authority or Interested Parties who have made representations may appeal the decision made by the Licensing Sub Committee to the Magistrates Court.  The appeal must be lodged with the Magistrates Court within 21 days of the notification of the decision.  The decision of the Licensing Sub Committee does not take effect until the end of the period for appealing against that decision.  In the event of an appeal being lodged, the decision made by the Licensing Sub Committee does not take effect until any appeal is heard and finally determined.