The Immigration (Alcohol Licensing and Late Hours Catering) (Scotland) Regulations 2018

Draft Regulations laid before Parliament under section 93(2)(e) of the Immigration Act 2016, for approval by resolution of each House of Parliament.

Draft Statutory Instruments

2018 No.

Immigration, Scotland

The Immigration (Alcohol Licensing and Late Hours Catering) (Scotland) Regulations 2018

Made

***

Coming into force in accordance with regulation 1

The Secretary of State, in exercise of the powers conferred by sections 36(2) and (3) and 93(6)(c) and (d) of the Immigration Act 2016(1), makes the following Regulations.

In accordance with section 93(2)(e) of that Act, a draft of these Regulations was laid before and approved by a resolution of each House of Parliament.

PART 1 CITATION, COMMENCEMENT AND INTERPRETATION

Citation, commencement and extent

1.—(1) These Regulations may be cited as the Immigration (Alcohol Licensing and Late Hours Catering) (Scotland) Regulations 2018 and come into force on the twenty-first day after the day on which they are made.

(2) These Regulations extend to Scotland only.

Interpretation

2.  In these Regulations—

“the 1982 Act” means the Civic Government (Scotland) Act 1982(2);

“the 2005 Act” means the Licensing (Scotland) Act 2005(3);

“the 2015 Act” means the Air Weapons and Licensing (Scotland) Act 2015(4).

PART 2 ENTITLEMENT TO WORK IN THE UNITED KINGDOM

Entitlement to work in the United Kingdom: alcohol licensing

3.  In section 147 of the 2005 Act (interpretation) after subsection (5)(5) insert—

“(6) For the purposes of this Act an individual is entitled to work in the United Kingdom if—

(a) the individual does not under the Immigration Act 1971 require leave to enter or remain in the United Kingdom, or

(b) the individual has been granted such leave and the leave—

(i) is not invalid,

(ii) has not ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), and

(iii) is not subject to a condition preventing the individual from doing work relating to the sale of alcohol on any premises.

(7) Where an individual is on immigration bail within the meaning of Part 1 of Schedule 10 to the Immigration Act 2016—

(a) the individual is to be treated for the purposes of subsection (6) as if the individual had been granted leave to enter the United Kingdom, but

(b) any condition as to the individual’s work in the United Kingdom to which the individual’s immigration bail is subject is to be treated for those purposes as a condition of leave.”.

Entitlement to work in the United Kingdom: late hours catering licensing

4.  After section 42 of the 1982 Act (late hours catering licences)(6) insert—

“42A    Persons entitled to work in the United Kingdom

(1) For the purposes of section 42(2A) an individual is entitled to work in the United Kingdom if—

(a) the individual does not under the Immigration Act 1971 require leave to enter or remain in the United Kingdom, or

(b) the individual has been granted such leave and the leave—

(i) is not invalid,

(ii) has not ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), and

(iii) is not subject to a condition preventing the individual from doing work relating to the use of premises for the sale to or consumption by the public of food between the hours of eleven o’clock in the evening and five o’clock the following morning.

(2) Where an individual is on immigration bail within the meaning of Part 1 of Schedule 10 to the Immigration Act 2016—

(a) the individual is to be treated for the purposes of subsection (1) as if the individual had been granted leave to enter the United Kingdom, but

(b) any condition as to the individual’s work in the United Kingdom to which the individual’s immigration bail is subject is to be treated for those purposes as a condition of leave.”.

PART 3 ALCOHOL LICENSING

Amendments to the 2005 Act

5.  The 2005 Act is amended as follows.

Application for premises licence

6.  In section 20 (application for premises licence)(7)—

(a) in subsection (1), at the beginning insert “Subject to subsection (1A),”;

(b) after subsection (1) insert—

“(1A) An individual who is resident in the United Kingdom may not apply for a premises licence in respect of any premises unless the individual is entitled to work in the United Kingdom.

(1B) If, notwithstanding subsection (1A), an individual who is resident but not entitled to work in the United Kingdom applies for a premises licence, the application is invalid and must be treated by the Licensing Board as not having been made.”.

Notification of application

7.—(1) Section 21 (notification of application)(8) is amended as follows.

(2) In subsection (1)—

(a) omit “and” at the end of paragraph (d);

(b) after paragraph (e) insert—

“, and

(f) the Secretary of State.”.

(3) In subsection (2)(a), after “chief constable” insert “and the Secretary of State”.

Objections and representations

8.  In section 22(1) (objections and representations)(9), after “any person” insert “, including the Secretary of State,”.

Determination of premises licence application

9.  In section 23(5) (determination of premises licence application)(10), after paragraph (c) insert—

“(ca) that the Licensing Board, having regard to any notice given by the Secretary of State under section 22(1), considers that it is appropriate for the prevention of illegal working in licensed premises to refuse the application.”.

Period of effect of premises licence

10.  In section 28 (period of effect of premises licence)(11), in subsection (5), after paragraph (c) insert—

“(ca) the premises licence holder, being an individual—

(i) ceases to be entitled to work in the United Kingdom at a time when the premises licence holder is resident in the United Kingdom, or

(ii) becomes resident in the United Kingdom without being entitled to work in the United Kingdom,”.

Application for transfer of premises licence

11.—(1) Section 33 (application for transfer of premises licence) is amended as follows.

(2) In subsection (1), at the beginning insert “Subject to subsection (1ZA),”.

(3) After subsection (1)(12) insert—

“(1ZA) An individual who is resident in the United Kingdom may not make an application under subsection (1) unless the individual is entitled to work in the United Kingdom.

(1ZB) If, notwithstanding subsection (1ZA), an individual who is resident but not entitled to work in the United Kingdom makes an application under subsection (1), the application is invalid and must be treated by the Licensing Board as not having been made.”.

(4) After subsection (7A)(13), insert—

“(7B) Where a Licensing Board receives an application under subsection (1), the Board must give notice of it, together with a copy of the application, to the Secretary of State, unless the Board must refuse the application under subsection (8A).

(7C) Where the Secretary of State is given notice under subsection (7B) and is 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, the Secretary of State must give the Licensing Board a notice stating the reasons for being so satisfied.

(7D) The Secretary of State must give that notice within the period of 21 days beginning with the day on which the Secretary of State is given notice of the application under subsection (7B).”.

(5) In subsection (8)(14)—

(a) omit “and” at the end of paragraph (b);

(b) after paragraph (c) insert—

“, and

(d) no notice has been given under subsection (7C),”.

(6) In subsection (10)(15), after “subsection (7A)” insert “and any notice given by the Secretary of State under subsection (7C)”.

(7) In subsection (11)(16), after paragraph (a) insert—

“(aa) that, having regard to a notice given under subsection (7C), it is appropriate for the prevention of illegal working in licensed premises to refuse the application,”.

Application for review of premises licence

12.—(1) Section 36 (application for review of premises licence)(17) is amended as follows.

(2) After subsection (2) insert—

“(2A) Where a Licensing Board receives a premises licence review application, the Board must give notice of it, together with a copy of the application, to the Secretary of State, unless the Secretary of State is the applicant or the Board intends to refuse the application under subsection (6).

(2B) Where the Secretary of State is given notice under subsection (2A) and is satisfied that the exceptional circumstances of the case are such that the continuation of the licence is prejudicial to the prevention of illegal working in licensed premises, the Secretary of State must give the Licensing Board a notice stating the reasons for being so satisfied.”.

(3) After subsection (3)(za) insert—

“(zb) that the continuation of the licence is prejudicial to the prevention of illegal working in licensed premises,”.

Review of premises licence on Licensing Board’s initiative

13.  In section 37 (review of premises licence on Licensing Board’s initiative)(18), after subsection (2) insert—

“(2A) Where a Licensing Board makes a premises licence review proposal, the Board must give notice of the proposal to the Secretary of State.

(2B) Where the Secretary of State is given notice under subsection (2A) and is satisfied that the exceptional circumstances of the case are such that the continuation of the licence is prejudicial to the prevention of illegal working in licensed premises, the Secretary of State must give the Licensing Board a notice stating the reasons for being so satisfied.”.

Review hearing

14.  In section 38(3)(b) (review hearing), following sub-paragraph (i) and before the “and” insert—

“(ia) the Secretary of State, if the Secretary of State is not the applicant,”.

Notification of determinations

15.  In section 39A(2) (notification of determinations)(19), following paragraph (a) and before the “and” insert—

“(aa) in a case where the Secretary of State has provided information to the Licensing Board for the purposes of the review hearing, the Secretary of State, and”.

Application for personal licence

16.—(1) Section 72 (application for personal licence) is amended as follows.

(2) In subsection (1), at the beginning insert “Subject to subsection (1A),”.

(3) After subsection (1) insert—

“(1A) An individual who is resident in the United Kingdom may not apply for a personal licence unless the individual is entitled to work in the United Kingdom.

(1B) If, notwithstanding subsection (1A), an individual who is resident but not entitled to work in the United Kingdom applies for a personal licence, the application is invalid and must be treated by the Licensing Board as not having been made.”.

(4) After subsection (2) insert—

“(3) A personal licence application must state whether the applicant has been required to pay an immigration penalty.”.

Notification of application to Secretary of State

17.  After section 73A(20), insert—

“73B    Notification of application to Secretary of State

(1) Where a Licensing Board receives a personal licence application, the Board must give notice of it, together with a copy of the application, to the Secretary of State.

(2) If the Secretary of State is satisfied that granting the licence would be prejudicial to the prevention of illegal working in licensed premises, the Secretary of State must, within the period of 21 days beginning with the day on which the Secretary of State received the notice under subsection (1), give the Licensing Board an immigration objection notice.”.

Determination of personal licence application

18.—(1) Section 74 (determination of personal licence application) is amended as follows.

(2) In subsection (2), after paragraph (ca)(21) insert—

“(cb) the Board has not received an immigration objection notice within the period referred to in section 73B(2),”.

(3) In subsection (3)(22), after paragraph (a) insert—

“(aa) the applicant is entitled to work in the United Kingdom,”.

(4) After subsection (5), insert—

“(5ZA) If—

(a) all of those conditions are met in relation to the applicant, and

(b) the Board has received an immigration objection notice within the period referred to in section 73B(2),

the Board must hold a hearing for the purpose of considering and determining the application.”.

(5) In subsection (6)(23)—

(a) after “hearing under subsection (5),” insert “(5ZA),”; and

(b) after “section 73(5) or 73A(2)” insert “or in a notice given under 73B(2)”.

(6) In subsection (6A)(24), after paragraph (b) insert—

“or,

(c) that granting the licence would be prejudicial to the prevention of illegal working in licensed premises.”.

Applicant’s duty to notify Licensing Board of convictions

19.—(1) Section 75 (applicant’s duty to notify Licensing Board of convictions) is amended as follows.

(2) In the title of section 75, after “convictions” insert “and penalties”.

(3) In subsection (1), after “foreign offence” insert “or required to pay an immigration penalty”.

(4) In subsection (2)—

(a) after “conviction”, in the first place where it occurs, insert “or (as the case may be) the date on which the requirement to pay the immigration penalty arose”; and

(b) after “conviction”, in the second place where it occurs, insert “or the penalty”.

(5) In subsection (3)—

(a) in paragraph (a), after “offence” insert “or the penalty”; and

(b) in paragraph (b), after “conviction” insert “or the date on which the requirement to pay the immigration penalty arose”.

(6) In subsection (4)(b)(25), at the beginning insert “in the case of a notice which specifies a conviction,”.

(7) After subsection (7)(26) insert—

“(7A) The Licensing Board must give notice to the Secretary of State where they receive a notice under subsection (2) that the applicant has been—

(a) convicted of an immigration offence,

(b) convicted of a foreign offence that the Licensing Board considers to be comparable to an immigration offence, or

(c) required to pay an immigration penalty.

(7B) If the Secretary of State is satisfied that granting the licence would be prejudicial to the prevention of illegal working in licensed premises, the Secretary of State must, within the period of 21 days beginning with the day on which the Secretary of State received the notice under subsection (7A), give the Licensing Board an immigration objection notice.”.

(8) In subsection (8), after “section 74” insert “(but subject to subsection (8A))”.

(9) After subsection (8) insert—

“(8A) If the Licensing Board has given notice to the Secretary of State under subsection (7A), the Board must not comply with the duties imposed by subsection (8) until either of the following occurs—

(a) receipt by the Board of an immigration objection notice within the period referred to in subsection (7B), or

(b) the expiry of that period without the Board receiving such a notice.”.

(10) In subsection (9)(27)—

(a) for “For that purpose, that section” substitute “For the purposes of subsection (8) and (8A), section 74”;

(b) omit “and” at the end of paragraph (b);

(c) after paragraph (c) insert—

“, and

(d) references in it to an immigration objection notice received within the period referred to in section 73B(2) include references to an immigration objection notice received within the period referred to in subsection (7B) of this section.”.

Issue of licence

20.  In section 76(2) (issue of licence), following paragraph (d) and before the “and” insert—

“(da ) any immigration penalty which the applicant has been required to pay,”.

Period of effect of personal licence

21.  In section 77(5) (period of effect of personal licence), before paragraph (a) insert—

“(za) the personal licence holder ceases to be entitled to work in the United Kingdom,”.

Renewal of personal licence

22.  In section 78(5) (renewal of personal licence: application of other provisions of Act)(28), after “73A” insert “, 73B”.

Notification of determinations

23.—(1) Section 79(2) (persons to be notified of determinations)(29) is amended as follows.

(2) Omit “and” at the end of paragraph (a).

(3) After paragraph (b) insert—

“, and

(c) if the Board has received an immigration objection notice under section 73B(2) or 75(7B), the Secretary of State,”.

Licence holder’s duty to notify Licensing Board of convictions

24.—(1) Section 82 (licence holder’s duty to notify Licensing Board of convictions) is amended as follows.

(2) In the title of the section, after “convictions” insert “and immigration penalties”.

(3) In subsection (1), after “offence” insert “or required to pay an immigration penalty”.

(4) In subsection (2)—

(a) after “conviction”, in the first place where it occurs, insert “or (as the case may be) the date on which the requirement to pay the immigration penalty arose”; and

(b) after “conviction”, in the second place where it occurs, insert “or the penalty”.

(5) In subsection (3)—

(a) omit “of conviction”;

(b) for sub-paragraphs (i) and (ii) of paragraph (a), but not the “and” at the end of sub-paragraph (ii), substitute—

“(i) where the notice relates to a conviction, the nature of the offence and the date of conviction, and

(ii) where the notice relates to an immigration penalty, the date on which the requirement to pay the immigration penalty arose,”.

(6) In subsection (4) after “conviction” insert “or immigration penalty”.

Procedure where Licensing Board receives notice of conviction

25.—(1) Section 83 (procedure where Licensing Board receives notice of conviction) is amended as follows.

(2) In the title of the section, after “conviction” insert “or immigration penalty”.

(3) In subsection (1)—

(a) in paragraph (a), for “of conviction” substitute “under section 81(2) or 82(2)”; and

(b) in paragraph (b), after “foreign offence” insert “or required to pay an immigration penalty”.

(4) For subsection (2)(30) substitute—

“(2) The Licensing Board must—

(a) give notice to the chief constable of any conviction included in a notice or of which they become aware, and

(b) give notice to the Secretary of State of any conviction or penalty included in a notice or of which they become aware, where the licence holder has been—

(i) convicted of an immigration offence,

(ii) convicted of a foreign offence that the Licensing Board considers to be comparable to an immigration offence, or

(iii) required to pay an immigration penalty.”.

(5) After subsection (5)(31), insert—

“(5A) If the Secretary of State is satisfied that it would be prejudicial to the prevention of illegal working in licensed premises if the licence were not revoked, suspended or endorsed, the Secretary of State must, within the period of 21 days beginning with the day on which the Secretary of State received the notice under subsection (2)(b), give the Licensing Board an immigration objection notice.”.

(6) In subsection (6)(32)—

(a) after “(4)(a)” insert “and does not receive an immigration objection notice within the period referred to in subsection (5A)”; and

(b) after “conviction” insert “or penalty”.

(7) In subsection (7)(33), after “subsection (5)” insert “or receives an immigration objection notice within the period referred to in subsection (5A)”.

(8) In subsection (7A)(34)—

(a) after “subsection (5)” insert “and does not receive an immigration objection notice within the period referred to in subsection (5A)”; and

(b) in paragraph (b), after “conviction” insert “or penalty”.

(9) In subsection (8)(35)—

(a) for paragraph (a), substitute—

“(a) having regard to—

(i) any conviction,

(ii) any immigration penalty,

(iii) any recommendation contained in the chief constable’s notice under subsection (5),

(iv) an immigration objection notice,”;

(b) omit “and” at the end of paragraph (b)(i); and

(c) after paragraph (b)(ii), insert—

“and

(iii) if an immigration objection notice has been received, the Secretary of State,”.

(10) In subsection (10)(36), following paragraph (b) and before the “and” insert—

“(ba) if an immigration objection notice has been received, the Secretary of State,”.

(11) In subsection (11), omit the definition of “notice of conviction”.

Relevant offences and foreign offences

26.  In section 129 (relevant offences and foreign offences)(37)—

(a) in subsection (1), at the beginning insert “Subject to subsection (1A),”;

(b) after subsection (1) insert—

“(1A) In this Act, a “relevant offence” includes an immigration offence (whether or not the immigration offence is prescribed in regulations made under subsection (1)).”.

Appeals

27.  In section 131 (appeals)(38), after subsection (5) insert—

“(5A) In any proceedings under this section, the sheriff principal or (as the case may be) the sheriff is not entitled to entertain any question as to whether—

(a) a person should be, or should have been, granted leave to enter or remain in the United Kingdom, or

(b) a person has, after the date of the decision being appealed against, been granted leave to enter or remain in the United Kingdom.”.

Form etc. of applications, proposals and notices

28.  In section 134 (form etc. of applications, proposals and notices)(39), after subsection (2) insert—

“(3) Subsection (1) does not apply to a notice mentioned in section 33(7B) or (7C), 36(2A) or (2B), 37(2A) or (2B), 73B(1) or (2), 75(7A) or (7B) or 83(2)(b) or (5A).”.

Powers of entry: immigration officers

29.  After section 138 of the 2005 Act, insert—

“138A    Powers of entry: immigration officers

(1) Where an immigration officer has reason to believe that any premises are being used for the sale of alcohol, the officer may enter the premises with a view to seeing whether an offence under any of the Immigration Acts is being committed in connection with the sale of alcohol.

(2) An immigration officer exercising a power conferred by this section must, if so requested, produce evidence of that officer’s authority to exercise the power.

(3) An immigration officer exercising a power conferred by this section may, if necessary, use reasonable force.

(4) A person commits an offence if the person intentionally obstructs an immigration officer exercising a power conferred by this section.

(5) A person guilty of an offence under subsection (4) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(6) In this section, “immigration officer” means a person appointed as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971(40).”.

Interpretation

30.—(1) Section 147 of the 2005 Act (interpretation) is amended as follows.

(2) In subsection (1)(41), insert at the appropriate places—

““the Immigration Acts” has the meaning given by section 61 of the UK Borders Act 2007(42),”;

““immigration objection notice” means a notice given by the Secretary of State stating the reasons why the Secretary of State is satisfied that granting a licence or omitting to revoke, suspend or endorse a licence (as the case may be) would be prejudicial to the prevention of illegal working in licensed premises,”;

““immigration offence” means an offence under the Immigration Acts,”.

(3) After subsection (1) insert—

“(1A) For the purposes of references in this Act to the prevention of illegal working in licensed premises, a person is working illegally if by doing that work at that time the person is committing an offence under section 24B of the Immigration Act 1971(43).”.

(4) After subsection (7)(44), insert—

“(8) In this Act “immigration penalty” means a penalty under—

(a) section 15 of the Immigration, Asylum and Nationality Act 2006(45) (“the 2006 Act”), or

(b) section 23 of the Immigration Act 2014(46) (“the 2014 Act”).

(9) For the purposes of this Act an immigration penalty is to be disregarded if—

(a) more than three years have elapsed since the date on which the penalty was imposed, and

(b) the amount of the penalty has been paid in full.

(10) For the purposes of this Act a person to whom a penalty notice under section 15 of the 2006 Act has been given is not to be treated as having been required to pay an immigration penalty if—

(a) the person is excused payment by virtue of section 15(3) of that Act, or

(b) the penalty is cancelled by virtue of section 16 or 17 of that Act(47).

(11) For the purposes of this Act a person to whom a penalty notice under section 15 of the 2006 Act has been given is not to be treated as having been required to pay an immigration penalty until such time as—

(a) the period for giving a notice of objection under section 16 of that Act has expired and the Secretary of State has considered any notice given within that period, and

(b) if a notice of objection was given within that period, the period for appealing under section 17 of that Act has expired and any appeal brought within that period has been finally determined, abandoned or withdrawn.

(12) For the purposes of this Act a person to whom a penalty notice under section 23 of the 2014 Act has been given is not to be treated as having been required to pay an immigration penalty if—

(a) the person is excused payment by virtue of section 24 of that Act, or

(b) the penalty is cancelled by virtue of section 29 or 30 of that Act.

(13) For the purposes of this Act a person to whom a penalty notice under section 23 of the 2014 Act has been given is not to be treated as having been required to pay an immigration penalty until such time as—

(a) the period for giving a notice of objection under section 29 of that Act has expired and the Secretary of State has considered any notice given within that period, and

(b) if a notice of objection was given within that period, the period for appealing under section 30 of that Act has expired and any appeal brought within that period has been finally determined, abandoned or withdrawn.”.

Index of defined expressions

31.  In section 148 (index of defined expressions), in the table, insert at the appropriate places—

“entitled to work in the United Kingdom

section 147(6)”

“the Immigration Acts

section 147(1)”

“immigration objection notice

section 147(1)”

“immigration offence

section 147(1)”

“immigration penalty

section 147(8)”

“working illegally, in relation to the prevention of illegal working in licensed premises

section 147(1A)”.

PART 4 LATE HOURS CATERING

Amendments to the 1982 Act

32.  The 1982 Act is amended as follows.

Powers of entry: immigration officers

33.  After section 6 insert—

“6A    Powers of entry: immigration officers

(1) Where an immigration officer has reason to believe that any premises are being used between the hours of eleven o’clock in the evening and five o’clock the following morning for the sale to or consumption by the public of food, the officer may at any time enter the premises with a view to seeing whether an offence under any of the Immigration Acts is being committed in connection with the carrying on of that activity.

(2) The reference in subsection (1) to the sale of food is to the sale of food for consumption on as well as off the premises in which it is sold.

(3) An immigration officer exercising a power conferred by this section must, if so requested, produce evidence of that officer’s authority to exercise the power.

(4) An immigration officer exercising a power conferred by this section may, if necessary, use reasonable force.

(5) A person commits an offence if the person intentionally obstructs an immigration officer exercising a power conferred by this section.

(6) A person guilty of an offence under subsection (5) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(7) In this section—

“food” has the meaning given in section 1 of the Food Safety Act 1990(48);

“immigration officer” means a person appointed as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971;

“premises” includes a vehicle or vessel.”.

Late hours catering licences

34.  In section 42 (late hours catering licences)(49) after subsection (2) insert—

“(2A) An individual who is resident in the United Kingdom may not apply for a late hours catering licence unless the individual is entitled to work in the United Kingdom.

(2B) Section 42A makes provision for the purposes of subsection (2A) about the circumstances in which a person is entitled to work in the United Kingdom.

(2C) If, notwithstanding subsection (2A), an individual who is resident but not entitled to work in the United Kingdom applies for a late hours catering licence, that application is invalid and must be treated by the Licensing Board as not having been made.”.

Amendments to Schedule 1 to the 1982 Act

35.—(1) Schedule 1 to the 1982 Act (licensing – further provisions as to the general system) is amended as follows.

(2) In paragraph 2 (notice of applications)(50) after sub-paragraph (1) insert—

“(1A) A licensing authority shall, as soon as an application for the grant or renewal of a late hours catering licence is made to them, send a copy of the application to the Secretary of State.”.

(3) In paragraph 3 (objections and representations)(51), after sub-paragraph (3B) insert—

“(3C) Where the Secretary of State is given notice under paragraph 2(1A) and is satisfied that granting or renewing the application would be prejudicial to the prevention of illegal working in licensed premises, the Secretary of State must give the Licensing Board a notice stating the reasons for being so satisfied.

(3D) The Secretary of State must give that notice within the period of 28 days beginning with the day on which the Secretary of State receives a copy of the application under paragraph 2(1A).”.

(4) In paragraph 5 (functions of licensing authority in relation to application for licence)(52)—

(a) after sub-paragraph (3)(a) insert—

“(aa) having regard to any notice by the Secretary of State given under paragraph 3(3C), it is appropriate for the prevention of illegal working in licensed premises to refuse the application;”;

(b) after sub-paragraph (6) insert—

“(6A) In the case of a relevant objection or representation made by the Secretary of State in relation to an application for the grant or renewal of a late hours catering licence, notification shall be made under sub-paragraph (5)(c) within 7 days of the decision to be notified by sending written notice of the decision to the Secretary of State.”.

(5) In paragraph 8 (duration of licences)(53), in sub-paragraph (8) (provisions to which paragraph 8 is subject), after “8A” insert “, 8B”.

(6) After paragraph 8A(54) insert—

“8B    Late hours catering licences for persons subject to immigration control

(1) A late hours catering licence ceases to have effect if the person to whom it was granted—

(a) ceases to be entitled to work in the United Kingdom at a time when the person is resident in the United Kingdom, or

(b) becomes resident in the United Kingdom without being entitled to work in the United Kingdom.

(2) Section 42A (persons entitled to work in the United Kingdom) applies for the purposes of this paragraph as it applies for the purposes of section 42(2A).”.

(7) In paragraph 11 (suspension and revocation of licences)(55) in sub-paragraph (2A) (suspension and revocation of certain licences on immigration grounds), after “the suspension or revocation of” insert “a late hours catering licence,”.

(8) In paragraph 18 (appeals)(56) in sub-paragraph (8A) (sheriff may not consider immigration issues on certain appeals), after “an appeal under this paragraph relating to” insert “a late hours catering licence,”.

PART 5 TRANSITIONAL PROVISIONS RELATING TO ALCOHOL LICENSING

36.  The amendments of sections 20, 21, 72, 74 and 75 of the 2005 Act made by regulations 6, 7, 16, 18 and 19 respectively do not apply in relation to applications made before the coming into force of the respective regulations.

37.  The amendments of section 28 of the 2005 Act made by regulation 10 do not apply in relation to a premises licence granted pursuant to an application made before the coming into force of that regulation.

38.  The amendment of section 77(5) of the 2005 Act made by regulation 21 does not apply in relation to a personal licence granted pursuant to an application made before the coming into force of that regulation.

39.  The amendment of section 129 of the 2005 Act made by regulation 26 applies on and after the coming into force of that regulation in relation to—

(a) premises licences and personal licences granted before, on or after the coming into force of that regulation; and

(b) offences committed on or after the coming into force of that regulation.

40.—(1) Schedule 1 contains transitory provisions relating to the coming into force of certain provisions of the 2015 Act.

(2) The provisions in Schedule 1 do not apply to applications made before the coming into force of that Schedule.

PART 6 TRANSITIONAL PROVISIONS RELATING TO LATE HOURS CATERING

41.  The amendments of section 42 of, and paragraphs 2 and 5 of Schedule 1 to, the 1982 Act made by regulations 34 and 35(2) and (4) do not apply in relation to applications (whether for the grant or renewal of a licence) made before the coming into force of the respective regulations.

42.  The amendment of paragraph 8 of, and insertion of paragraph 8B into, Schedule 1 to the 1982 Act by regulation 35(5) and (6) do not apply in relation to a licence granted pursuant to an application made before the coming into force of that regulation, but will apply to a renewal of such a licence if it is renewed pursuant to an application made on or after the coming into force of that regulation.

43.  The amendment of paragraph 11 of Schedule 1 to the 1982 Act made by regulation 35(7) applies on and after the coming into force of that regulation in relation to—

(a) licences granted before, on or after the coming into force of that regulation;

(b) offences committed on or after the coming into force of that regulation; and

(c) an immigration penalty imposed as a result of conduct which took place on or after the coming into force of that regulation.

PART 7 CONSEQUENTIAL AMENDMENTS

44.—(1) The Personal Licence (Scotland) Regulations 2007(57) (“the 2007 Regulations”) are amended as follows.

(2) For the form in Schedule 1 to the 2007 Regulations, substitute the form in Schedule 2 to these Regulations.

(3) For the form in Schedule 2 to the 2007 Regulations, substitute the form in Schedule 3 to these Regulations.

45.  For the form in Schedule 3 to the Premises Licence (Scotland) Regulations 2007(58), substitute the form in Schedule 4 to these Regulations.

Name

Minister of State

Home Office

Date

Regulation 40

SCHEDULE 1 TRANSITORY PROVISIONS RELATING TO THE COMMENCEMENT OF THE 2015 ACT

46.  Until the coming into force of section 49 of the 2015 Act (transfer of premises licences), regulation 11 (application for transfer of premises licence) has effect as if for that regulation there were substituted the following—

“Transfer on application of licence holder

11.— (1) Section 33 (transfer on application of licence holder) is amended as follows.

(2) After subsection (2), insert—

“(2A) An individual who is resident in the United Kingdom may not be a transferee unless the individual is entitled to work in the United Kingdom.”.

(3) After subsection (7A), insert—

“(7B) Where a Licensing Board receives an application under subsection (1), the Board must give notice of it, together with a copy of the application, to the Secretary of State.

(7C) Where the Secretary of State is given notice under subsection (7B) and is 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, the Secretary of State must give the Licensing Board a notice stating the reasons for being so satisfied.

(7D) The Secretary of State must give that notice within the period of 21 days beginning with the day on which the Secretary of State is notified of the application under subsection (7B).”.

(4) In subsection (8)—

(a) omit “and” at the end of paragraph (b);

(b) after paragraph (c), insert—

“, and

(d) no notice has been given under subsection (7C),”.

(5) In subsection (10) for “and any information provided under subsection (7A)” substitute “, any information provided under subsection (7A) and any notice given by the Secretary of State under subsection (7C)”.

Transfer on application of person other than licence holder

11A.— (1) Section 34 (transfer on application of person other than licence holder) is amended as follows.

(2) After subsection (1), insert—

“(1A) An individual who is resident in the United Kingdom may not apply under subsection (1) for the transfer to that person of the premises licence unless the individual is entitled to work in the United Kingdom.

(1B) If, notwithstanding subsection (1A), an individual who is resident but not entitled to work in the United Kingdom makes an application under subsection (1), the application is invalid and must be treated by the Licensing Board as not having been made.”.”.

Regulation 44(2)

SCHEDULE 2 FORM IN SCHEDULE 1 TO THE 2007 REGULATIONS

Regulation 44(3)

SCHEDULE 3 FORM IN SCHEDULE 2 TO THE 2007 REGULATIONS

Regulation 45

SCHEDULE 4 FORM IN SCHEDULE 3 TO THE PREMISES LICENCE (SCOTLAND) REGULATIONS 2007

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations extend to Scotland and are made under section 36 of the Immigration Act 2016 (c. 19) (“the 2016 Act”), which allows regulations to make provision for Scotland which has similar effect to that which Schedule 4 to the 2016 Act makes for England and Wales. Schedule 4 to the 2016 Act makes amendments to the Licensing Act 2003 (c. 17) relating to illegal working. These Regulations make similar effect by amending the Licensing (Scotland) Act 2005 (asp 16) (“the 2005 Act”) and the Civic Government (Scotland) Act 1982 (c. 45) (“the 1982 Act”). These Regulations place restrictions on the holding of alcohol or late night catering licences by people who are not entitled to work in the United Kingdom, or people who have been convicted of immigration offences or required to pay immigration penalties.

Part 2 of the Regulations amends section 147 of the 2005 Act (interpretation) and inserts a new section 42A into the 1982 Act (persons entitled to work in the United Kingdom), to provide a definition of an individual who is entitled to work in the United Kingdom.

Part 3 of the Regulations amends the 2005 Act. In respect of premises licences, regulation 6 amends section 20 of the 2005 Act to provide that an individual who is resident in the UK may not apply for a premises licence unless the individual is entitled to work in the UK. Regulation 7 makes provision that the Secretary of State should be notified of applications for premises licences. Regulation 10 amends section 28 of the 2005 Act to provide that a premises licence lapses if the licence holder ceases to be entitled to work in the United Kingdom. Regulations 11 and 12 amend section 33 and section 36 respectively of the 2005 Act to make provision in respect of applications for the transfer or review of a premises licence.

In respect of personal licences, regulation 16 amends section 72 of the 2005 Act to require a personal licence application to state whether the applicant has been required to pay an immigration penalty and regulation 17 inserts a new section 73B into the 2005 Act to provide for the Secretary of State to be notified of an application for a personal licence.

Regulation 18 amends section 74 of the 2005 Act to make provision for the determination of personal licence applications where the Secretary of State has given an immigration objection notice. Regulation 19 amends section 75 of the 2005 Act to ensure that an applicant must notify a Licensing Board of convictions, including immigration offences, and a requirement to pay an immigration penalty. Regulation 21 amends section 77(5) of the 2005 Act to provide that a personal licence lapses if the licence holder ceases to be entitled to work in the UK.

Regulation 27 amends section 131 of the 2005 Act to provide that on an appeal in relation to a licensing decision, the court cannot entertain any question as to whether a person should be, or should have been, granted leave to enter or remain in the United Kingdom or a person has, after the date of the licensing decision, been granted leave to enter or remain in the United Kingdom. Regulation 29 adds a new section 138A to the 2005 Act to make provision for immigration officers to enter any premises where alcohol is being sold for the purpose of determining whether an immigration offence is being committed in connection with the sale of alcohol.

Part 4 of the Regulations relates to late hours catering licences. Regulation 33 adds a new section 6A to the 1982 Act which provides an immigration officer with the power at any time to enter premises for the purpose of determining whether an immigration offence is being committed in connection with the carrying on of late hours catering activities. Regulation 34 provides that an individual who is resident in the United Kingdom may not apply for a late hours catering licence unless the individual is entitled to work in the United Kingdom.

Regulation 35 amends Schedule 1 to the 1982 Act to require licensing authorities to notify the Secretary of State of applications for late hours catering licences and their decisions. It also makes provision for the cessation of late hours catering licences in the event that a licence holder who is resident in the United Kingdom ceases to be entitled to work in the United Kingdom. It also makes similar provision to regulation 27 in relation to late hours catering licences.

Parts 5 and 6 of the Regulations make transitional provision in relation to alcohol licensing and late hours catering respectively. Regulation 40 and Schedule 1 make transitory provision in relation to alcohol licensing pending the commencement of section 49 of the Air Weapons and Licensing (Scotland) Act 2015 (2015 asp 10). Part 7 of the Regulations and Schedules 2, 3 and 4 make consequential amendments by inserting new forms (containing requirements relating to the immigration provision made by these Regulations) into the Personal Licence (Scotland) Regulations 2007 (S.S.I. 2007/77) and the Premises Licence (Scotland) Regulations 2007 (S.S.I. 2007/452).

A regulatory impact assessment was carried out at the time of the passage of the Immigration Act 2016 in relation to the UK-wide impact of the policy to which these Regulations give effect in Scotland. That impact assessment is available from https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/619768/VIA_Alcohol_LNR_Licensing_20170504.pdf . A separate impact assessment has not been carried out for these Regulations.

(1)

2016 c. 19.

(2)

1982 c. 45.

(3)

2005 asp 16.

(4)

2015 asp 10.

(5)

Section 147(5) was inserted by section 184(1) and (4) of the Criminal Justice and Licensing (Scotland) Act 2010 (2010 asp 13) (“the 2010 Act”), and amended by section 59(1) and (5) of the Air Weapons and Licensing (Scotland) Act 2015 (2015 asp 10) (“the 2015 Act”); neither the insertion nor the amendments are yet in force.

(6)

Section 42 was amended by section 177 of the 2010 Act.

(7)

Section 20 was amended by section 179(1), (2) and (3) of the 2010 Act and S.S.I. 2012/304.

(8)

Section 21(1) was amended by paragraphs 29(1) to (3) of Schedule 7 to the Police and Fire Reform (Scotland) Act 2012 (2012 asp 8) (“the 2012 Act”) and section 180(1) and (2) of the 2010 Act. There are other amendments to section 21 but none is relevant.

(9)

Relevant amendments to section 22 were made by section 183(2) (partially in force) of and paragraph 4 of Schedule 6 to the 2010 Act, paragraph 29 of Schedule 7 to the 2012 Act and section 43(2) of the 2015 Act.

(10)

Section 23(5) was amended by sections 43(3) and 55(3) of the 2015 Act.

(11)

Section 28(2) is prospectively amended by paragraph 4(1) and (2) of Schedule 2 to the 2015 Act.

(12)

Section 33(1A) is prospectively inserted by section 49(1) and 2(a) of the 2015 Act.

(13)

Section 33(7A) was inserted by section 44(1) and (2)(a) of the 2015 Act. Section 33(8A) is prospectively inserted by section 49(1) and (2)(d) of the 2015 Act.

(14)

Section 33(8) was amended by section 44(1) and (2)(b) of the 2015 Act and is prospectively amended by section 49(1) and (2)(c) of the 2015 Act.

(15)

Section 33(10) was amended by paragraphs 1 and 7(1) and (3) of Schedule 6 to the 2010 Act and is prospectively amended by section 44(1) and (2)(c) of the 2015 Act.

(16)

Section 33(11) was inserted by section 44(1) and (2)(d) of the 2015 Act.

(17)

Section 36 was amended by section 45(1) and (2)(a) to (c) of the 2015 Act.

(18)

Section 37 was amended by paragraphs 4(1) and (5) of Schedule 2 to the 2015 Act.

(19)

Section 39A(2) was inserted by section 182(1) and (2) of the 2010 Act and amended by section 45(1) and (5) of the 2015 Act.

(20)

Section 73A was inserted by section 46(1) and (3) of the 2015 Act.

(21)

Paragraph (ca) of section 74(2) was inserted by section 46(1) and (4)(a) of the 2015 Act.

(22)

Section 74(3) was amended by section 192(1) and (2)(b) of the 2010 Act and section 60(1) and (2) of the 2015 Act.

(23)

Section 74(6) was amended by paragraphs 1, (4)(a) and (b), and 13(1) of Schedule 6 to the 2010 Act and section 46(1) and (4)(d) of the 2015 Act.

(24)

Section 74(6A) was inserted by section 46(4)(e) of the 2015 Act.

(25)

Section 75(4)(b) was amended by paragraph 29(1) to (3) of Schedule 7 to the 2012 Act.

(26)

Section 75(7) was amended by paragraphs 1 and 14(1) and (2) of Schedule 6 to the 2010 Act.

(27)

Section 75(9) was amended by paragraphs 1 and 14(1) and (3)(b) of Schedule 6 to the 2010 Act.

(28)

Section 78(5) was amended by sections 46(1) and (5) and 60(1) and (4)(b) of the 2015 Act.

(29)

Section 79(2) was amended by paragraph 29(1) to (3) of Schedule 7 to the 2012 Act.

(30)

Section 83(2) was amended by paragraph 29(1) to (3) of Schedule 7 to the 2012 Act.

(31)

Section 83(5) was amended by paragraphs 1 and 15(1) and (2) of Schedule 6 to the 2010 Act and by paragraph 29(1) to (3) of Schedule 7 to the 2012 Act.

(32)

Section 83(6) was amended by paragraph 29(1) to (3) of Schedule 7 to the 2012 Act.

(33)

Section 83(7) was amended by paragraph 29(1) to (3) of Schedule 7 to the 2012 Act and section 51(a) of the 2015 Act.

(34)

Section 83(7A) was inserted by section 51(b) of the 2015 Act.

(35)

Section 83(8) was amended by paragraphs 1 and 15(1) and (3) of Schedule 6 to the 2010 Act, paragraph 29(1) to (3) of Schedule 7 to the 2012 Act and section 51(c) of the 2015 Act.

(36)

Section 83(10) was amended by paragraph 29(1) to (3) of Schedule 7 to the 2012 Act and by section 47(1) and (2)(c) of the 2015 Act.

(37)

Section 129 was amended by section 24(5) of the 2010 Act and is prospectively amended by section 52 of the 2015 Act.

(38)

There have been amendments to section 131 which are not relevant to these Regulations.

(39)

Section 134 was amended by section 62 of the 2015 Act.

(40)

There have been amendments to paragraph 1 of Schedule 2 to the Immigration Act 1971 which are not relevant to these Regulations.

(41)

Section 147(1) was amended by section 11(5) of the Alcohol etc. (Scotland) Act 2010, section 184(1) and (4) of the 2010 Act, and paragraph 29(1) and (8) of Schedule 7 to the 2012 Act, and is prospectively amended by section 59(1) and (5) of the 2015 Act.

(42)

2007 c. 30. Section 61 was amended by section 73(5) of the Immigration Act 2014 (c. 22) and section 92(5) of the Immigration Act 2016 (c. 19) (“the 2016 Act”).

(43)

Section 24B was inserted by section 34(1) and (3) of the 2016 Act.

(44)

Section 147(5) was inserted by section 184(1) and (4) of the 2010 Act and amended by section 59(1) and (5) of the 2015 Act; neither the insertion nor the amendments are yet in force. Section 147(6) and (7) are inserted by regulation 3 of these Regulations.

(45)

2006 c. 13. Section 15 was amended by paragraph 61 of Schedule 9 to the Immigration Act 2014.

(46)

2014 c. 22.

(47)

Section 17 of the Immigration, Asylum and Nationality Act 2006 was amended by paragraph 52(1)(b) and (2) of Schedule 9 to the Crime and Courts Act 2013 (c. 22) and section 44 of the Immigration Act 2014.

(48)

1990 c. 16. There are amendments to section 1 but none is relevant.

(49)

Section 42 was amended by section 177 of the 2010 Act.

(50)

Paragraph 2 of Schedule 1 to the 1982 Act was amended by section 178(1) and (2)(c) and (d) of the 2010 Act, paragraph 53(1) and (6) of Schedule 7 to the 2012 Act and S.S.I. 2006/475.

(51)

Paragraph 3 of Schedule 1 to the 1982 Act was amended by section 178(2)(e) of the 2010 Act and section 83(2)(a) of the 2015 Act.

(52)

There are amendments to paragraph 5 but none is relevant.

(53)

Paragraph 8 was amended by section 178(1) and (2)(g) of the 2010 Act and paragraph 32(2) of Schedule 5 to the 2016 Act.

(54)

Paragraph 8A was inserted by paragraph 32(3) of Schedule 5 to the 2016 Act.

(55)

Paragraph 11 was amended by section 178(1) and (2)(h) of the 2010 Act, paragraph 53(1) and (6) of Schedule 7 to the 2012 Act, section 78(1) and (3)(b) of the 2015 Act, paragraph 32(4) of Schedule 5 to the 2016 Act and S.S.I. 2006/475.

(56)

Paragraph 18 was amended by section 78(1) and (3)(g) of the 2015 Act and paragraph 32(5) of Schedule 5 to the 2016 Act.

(57)

S.S.I. 2007/77.

(58)

S.S.I. 2007/452.