The Home Office's tightening of Immigration Audits increases risk of other regulatory punishments
It is well recognised that the Home Office possesses the authority to perform immigration audits on holders of sponsorship licences throughout the duration of the licence validity. This measure is designed to ensure that sponsor licence holders adhere to the obligations and responsibilities outlined in the UK's sponsorship licence framework. In the wake of the COVID-19 pandemic, the Home Office has increasingly resorted to conducting these audits to ensure compliance is maintained.
However, Section 36 and Schedule 4 of the Immigration Act 2016 amended the Licensing Act 2003, introducing immigration safeguards, pertaining to licensing applications / already licensed premises. The aim was to prevent illegal employment in establishments (such as restaurants, hotels, off-licences, bars and nightclubs) offering licensable activities including the sale/supply of alcohol, the provision of regulated entertainment or the provision of late-night refreshment.
Notably, the Secretary of State for the Home Department (SSHD) has been incorporated into the list of Responsible Authorities (RA) within the regulatory licensing framework. This development allows the Home Office’s Immigration Enforcement division to provide feedback and make representations regarding the grant, full variation, transfer, and review of premises licences. In addition, as stipulated in Section 179 (1A) of the Licensing Act 2003, immigration officers are permitted to enter licenced premises to ascertain whether any offences under the Immigration Acts are being committed in relation to the licensable activities.
This integration of the two regulatory frameworks was implemented to address deficiencies in the enforcement of illegal working laws. Prior to these changes, migrants in the UK lacking valid leave to remain could acquire licences, as local authorities were not legally obligated to refuse licences to illegal migrants or those prohibited from engaging in licensable activities due to their immigration status. Further, any premises licence issued in respect of an application made on or after 6 April 2017 will become invalid if the holder of the premises licence ceases to be entitled to work in the UK.
Since the conclusion of the COVID-19 pandemic, the Home Office's Immigration Enforcement has been conducting audits of UK businesses more frequently, particularly in sectors such as domiciliary nursing, agriculture, and hospitality. The hospitality sector, which has experienced significant job vacancy rates in the UK, is now more inclined to recruit international talent to fill these gaps, especially in light of Brexit and the pandemic. In late August 2024, Yvette Cooper MP, the current SSHD, announced the recruitment of up to 100 new specialist intelligence and investigation officers for the National Crime Agency (NCA) to combat organised immigration crime networks in the UK. A significant focus of this initiative will be on imposing sanctions against employers who hire illegal workers, utilising financial penalties, business closure orders, and prosecutions as deterrents. Earlier in 2024, civil penalties for employers were raised from a maximum of £20,000 to as much as £60,000, representing a 200% increase.
The hospitality sector has become a primary target in the SSHD's efforts to combat illegal employment in the UK. The Home Office's Immigration Enforcement increasingly leverages the statutory powers granted by the Licensing Act 2003 to recommend actions against businesses suspected of employing illegal workers and to conduct immigration enforcement audits.
A recent case example includes a restaurant operator who was faced with an application against him, made by Home Office Immigration Enforcement, to review his premises licence, when it was alleged that various staff employed by the operator did not have the right to work in the UK. This was a serious matter as the operator was at risk of his premises licence being revoked.
On this occasion Irwin Mitchell’s immigration team worked closely with the regulatory team to represent the client, and the outcome was a three-month suspension with various conditions added to the premises licence. This was a far better outcome than the premises licence being revoked in its entirety.
To assist in navigating these challenges, Irwin Mitchell’s expert immigration team and regulatory team are available to conduct a review of your business to ensure it is compliant from an immigration and a regulatory perspective.
For more information contact Mandeep Khroud and Ewan Collett in Irwin Mitchell's Immigration team, or Regulatory legal expert Joanna Onisiforou.
