Agenda item

To consider an application for the review of a Premises Licence under the Licensing Act 2003.

 

Councillor Gerard declared a personal interest as a customer of Radhuni restaurant and took no further part in the meeting. He left the room at 1.10pm.

 

The Chairman explained procedure and introduced the panel to Mr Ahmed. The Licensing Team Leader presented her report to the panel, explaining why the premises licence was under review, and what decisions the Committee could make in respect of the review; Mr Ahmed confirmed he had been sent a copy of the report.

 

At the invitation of the Chairman, Ms Powell presented her report to the Committee, outlining the Police’s case for revocation of Mr Miah’s premises licence on the grounds that the ‘Prevention of Crime and Disorder Objective’ of the Licensing Act 2003 had been undermined. No questions were asked at this point.

 

Mr Ahmed presented his own account at the request of the Chairman. He said the letter he had sent to the Licensing Team Leader was in effect his statement. He said that he was on holiday at the time of the Immigration Officer’s visit and that he only knew one of the three men arrested. He added that the man he knew had been staying with him but he had not given permission for any of the three men to work at his restaurant.

 

Ms Powell said one of the men arrested claimed he had been working at the restaurant for three months; Mr Ahmed said he had not employed the man but he was staying as a guest in his house. She asked if Mr Ahmed kept employment records; Mr Ahmed said he did not need to as he mainly employed family and friends. He added that he did carry out Right to Work checks if he employed somebody he did not know.

 

In response to a question from the Chairman, Mr Ahmed said he had not checked the immigration status of his friend who had been arrested for working illegally in his restaurant.

 

The Chairman asked Mr Ahmed if he did not feel liable for the illegality that had occurred at his restaurant, as referred to in his statement. Mr Ahmed said he did feel responsible and he was only quoting the letter he had received from the police. Mr Clarke said the letter he was referring to was essentially a ‘no further action’ letter which was commonly sent out when a prosecution was not to be taken forward.

 

At the invitation of the Chairman, Ms Powell submitted a closing statement on behalf of Essex Police. She told the panel that it was common for no prosecution to be brought forward for illegal employment, due to the heavy burden of proof required, but reminded Members that illegal workers had been found on the premises. She said Mr Ahmed had previously failed to carry out Right to Work checks and had been issued a civil penalty in 2011 for this offence. He had also failed to carry out due diligence and provided no employment contracts or proof of right to work checks. For these reasons she recommended that his licence should be revoked as Licensing Objective One, the prevention of crime and disorder, had been breached. She added that revoking a premises licence was a legitimate deterrent and highlighted the case of Bassetlaw as legal precedent.

 

At the invitation of the Chairman, Mr Ahmed submitted his closing statement. He asked Members to consider the impact of revoking his licence and said he would lose his business if he could no longer sell alcohol. He apologised for his staff being rude on the day Immigration Officers visited the premises. He thanked the panel and said he would accept their decision.  

 

At 1.50pm, the Committee withdrew to make its determination.

 

At 2.15pm, the Committee returned and read the decision to Mr Ahmed.

 

DECISION

 

The application before the Panel today is for the review of the premises licence of the Radhuni Restaurant, High Street, Newport, dated 18^th November 2015 and held by Shamim Ahmed. Mr Ahmed is also the DPS. The application is being made by Essex Police and they are supported by the Immigration Authorities.

 

The grounds for the application are that the Police consider Licensing Objective One, the prevention of crime and disorder, is being breached and specifically, that no right to work checks are being carried out under the Immigration, Asylum and Nationality Act 2016, three persons having being found on the premises carrying out work while not being entitled to do so under the immigration legislation. This is a serious offence and on indictment carries with it liability to 2 years imprisonment and/or an unlimited fine.

 

We have had sight of a detailed report and have considered the extensive background papers, including:-

 

a.    Premises Licence

b.    Plan of Premises

c.    Application for the review of a premises licence under the Licensing Act 2003

d.    Licensing Act 2003

e.    Revised Guidance issued by the Home Office dated April 2017 under section 182 of the Licensing Act 2003

f.     Uttlesford District Council Statement of Licensing Act 2003 Policy 2017-22.

g.    Supplemental Statement from Immigration Officer Clouting

h.    Letter from Mr Ahmed with enclosures.

 

In particular we have been mindful of paragraph 2.6 of the Home Office Guidance, which specifically includes illegal working within licenced premises as a matter Licensing Authorities are to take account of. Paras 4.22, 8.99, 11.18 and 11.26 expand further upon this, and para 11.27 states that “there is certain criminal activity that may arise in connection with licensed premises which should be treated particularly seriously. These are the use of the licensed premises for…..employing a person who is disqualified from that work by reason of their immigration in the UK.”

 

Paragraph 11.28 says ‘It is envisaged that licensing authorities, the police, the Home Office (Immigration Enforcement) and other law enforcement agencies, which are responsible authorities, will use the review procedures effectively to deter such activities and crime. 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.’

 

We have also been referred to case law which specifically provides that a) deterrence of others is a consideration that this Committee may have in mind (The Queen on the Application of Bassetlaw District Council v Worksop Magistrates Court [2008] EWHC 3530 Admin) in making its decision and b) there does not have to be a conviction for an offence under the 2006 Act for a licence to be revoked under the crime prevention objective ( East Lindsey District Council v Hanif t/a Zara’s Restaurant and takeaway [2016]EWHC 1265 Admin)

 

The Council’s existing licensing policy does not specifically make reference to immigration issues but it has been recently revised and the amended version contains the following provisions:-                    

 

3.3       The prevention of crime includes the prevention of immigration crime, and the Licensing Authority will work with Home Office Immigration Enforcement in respect of these matters.

 

• The promotion of the licensing objective, to prevent crime and disorder, places a responsibility on licence holders to become key partners in achieving this objective.If representations are made to the Licensing Authority applicants will be expected to demonstrate in their operating schedule that suitable and sufficient measures have been identified and will be implemented and maintained to reduce or prevent crime and disorder on and in the vicinity of their premises, relevant to the individual style and characteristics of their premises and events.

 

3.4       When addressing the issue of crime and disorder, the applicant should consider those factors that impact on crime and disorder. These may include:

 

·         Underage drinking

·         Drunkenness on premises

·         Public drunkenness

·         Drugs

·         Violent behaviour

·         Anti-social behaviour

·         Illegal working

 

Control Measures

 

3.5       The following examples of control measures are given to assist applicants who may need to take account of them in their operating schedule in the event that representations are received, having regard to their particular type of premises and/or activities:

a.    Effective and responsible management of premises

b.    Training and supervision of staff

c.    Adoption of best practice guidance (e.g. Safer Clubbing, the National Alcohol Harm Reduction Strategy Toolkit and other voluntary codes of practice, including those relating to drinks promotions e.g. The Point of Sale Promotions published by BBPA (British Beer and Pubs Association)  Security in Design published by BBPA and Drugs and Pubs, published by BBPA)

d.    Acceptance of accredited ‘proof of age’ cards e.g. PASS, locally approved ‘proof of age’ cards e.g. ’Prove It’ and/or ‘new type’ driving licences with photographs or adoption of industry best practice (e.g. Challenge 25 policy)

e.    Provision of effective CCTV and mirrors in and around premises

f.     Employment of Security Industry Authority licensed door staff

g.    Provision of toughened or plastic drinking vessels

h.    Provision of secure, deposit boxes for confiscated items (‘sin bins’)

i.      Provision of litterbins and other security measures, such as lighting, outside premises

j.      Membership of local ‘Pubwatch’ schemes or similar organisations

k.    Right to work checks on staff and retention of documents

 

The Committee’s powers on a review are as follows:-

 

·         Allow the licence to continue unmodified

·         Modify the conditions of the licence

·         Modify the conditions of the licence for a period not exceeding 3 months.

·         Exclude a licensable activity from the scope of the licence

·         Exclude a licensable activity from the scope of the licence for a period not exceeding 3 months.

·         Revoke a licence

·         Remove the Designated Premises Supervisor.

 

Should the Committee be minded to impose conditions, the only conditions that can be imposed are those that are necessary and proportionate to promote the licensing objective relative to the representations received. This is made clear in paragraphs 10.8 and 10.10 of the Home Office Guidance. Equally, the Committee should not impose conditions that duplicate the effect of existing legislation, in this case S21 of the Immigration, Asylum and Nationality Act 2006.

 

We have heard from Ms Powell on behalf of the Police and Mr Clarke from the Immigration Authority. We have also read a letter from Mr Ahmed and he has addressed us in person. However, he has not produced any proper personnel or other records and we note that it was a failure to produce these records evidencing employee status that meant he could not be prosecuted or subjected to a Civil Penalty by the Immigration Authorities.

 

The evidence we have seen shows that the three individuals concerned admitted working without the proper immigration checks having been undertaken, and furthermore, that one of them also admitted to working for his keep only in breach of other employee rights legislation. Though Mr Ahmed has stated in his letter that the licensee of other premises was overseeing Radhuni during his absence abroad, he has produced nothing whatsoever to substantiate this and we cannot accept a bare statement as being sufficient proof of compliance with his continuing obligations as licensee. Finally, we cannot overlook the fact that this is not a first offence: Mr Ahmed was made subject to an Illegal Working Civil Penalty in April 2011.

 

The grounds upon which the Police have made this application are that Licensing Objective One, the prevention of crime and disorder, has been breached. The important word is “prevention” and Mr Ahmed has failed to prevent, not for the first time, illegal working.  We have considered the decisions of R on the application of Bassetlaw District Council v Worksop Magistrates Court [2008] EWHC 3530 and East Lindsey District Council v Hanif t/a Zarsa Restaurant [2016] EWHC 1265 and are satisfied that even though on this occasion Mr Ahmed has not on this occasion been subject to any penalty, the licensing objective is nevertheless engaged.

 

This Committee’s primary function is the protection of the public. Though we are not a Court and the standard of proof before us is the civil one of the balance of probabilities, we are satisfied that Mr Ahmed engaged the three people referred to in the Police submissions to work unlawfully in this country.

 

We therefore consider that the premises licence should be revoked under S52 (4) (e) of the Licensing Act 2003 and that revocation is an appropriate step with a view to promoting the crime prevention licensing objective.

 

There is a right of appeal against this decision which must be exercised within a period of 21 days and during this period the licenses remain in force. Mr Ahmed will receive a letter from the Legal Department explaining this.

 

 

The meeting ended at 2.30pm.