Licensing and illegal workers

01 Jan 2018


In an important judgment in the High Court, a High Court Judge has restored a licensing authority’s decision to revoke a premises licence for employment of an illegal worker.

Zara’s restaurant traded in East Lindsey. The owner and licensee was Mr. Hanif. After a raid by the immigration authorities it was discovered that Mr. Hanif was employing an illegal worker.

The Police brought review proceedings and the licensing authority revoked the premises licence. Mr. Hanif appealed. At the appeal, which was heard by District Judge Veits, his Counsel argued before the District Judge that, since Mr. Hanif had not been prosecuted for employing an illegal worker under section 21 Immigration, Asylum and Nationality Act 2006, but had merely been given a civil penalty under section 15 of that legislation, the crime prevention objective was not engaged.

At the hearing of the magistrates’ appeal, it was established that Mr. Hanif had employed the illegal worker without paperwork showing a right to work in the UK, he had paid him cash in hand, he paid him less than the minimum wage, he did not keep or maintain PAYE records and that, while he had deducted tax from the worker’s salary, he failed to account to the HMRC for the tax deducted.

The District Judge held that because prosecution proceedings had not been brought, and no crime had been reported, the crime prevention objective was not engaged; and that in any event the failure to pay the minimum wage had not been the main basis of the licensing authority’s decision.

The Council appealed by way of case stated. It argued that it is not necessary for a crime to have been reported, prosecuted or established in a court of law in order for the crime prevention objective to be engaged. The licensing objectives are prospective, and are concerned with the avoidance of harm in the future.

The matter came before Mr. Justice Jay. He accepted all of the Council’s arguments. In his view, there was clear evidence of the commission of criminal offences, both in relation to the non-payment of the minimum wage and also tax evasion. As for the offence of knowingly employing an illegal worker, he considered that, based on the fact that the employee could not provide the requisite paperwork, a national insurance number or a tax code,  the clear inference was that Mr. Hanif well knew that he was employing an illegal worker. A deterrent approach was justified on the facts.

Mr. Justice Jay decided that remission of the case to the Magistrates’ Court was not appropriate, since he considered that the Council’s decision to revoke was clearly correct. In reaching that decision, the Learned Judge pointed out that employing an illegal worker involves not only defrauding the Revenue, but also the exploitation of vulnerable individuals including, here, by not paying them the minimum wage.

The Learned Judge ordered Mr. Hanif to pay costs in the High Court in the sum of £15,000 and ordered costs of the Magistrates’ proceedings in the sum of £4000.

Reflecting the importance of the principle that it is not necessary for a prosecution to be brought in order for the crime prevention objective to be engaged, Mr. Justice Jay certified the case as appropriate for citation in future cases under the relevant Practice Direction. This means that the judgment can be cited in future cases.

Philip Kolvin QC and David Dadds appeared for East Lindsey District Council, instructed by Dadds LLP.