(1)

considered report from Director of Public Health and the law, policy and guidance contained therein;

(2)

considered the written application for review and verbal representations from Home Office Immigration Enforcement as follows:

·        

they believed the Premises Licence Holder (PLH) had failed to meet the Crime Prevention licensing objective as illegal working had been identified at his premises;

·        

immigration safeguards had been brought in April 2017 with an amendment to the Licensing Act 2003 by S.36 and Schedule 4 of the Immigration Act 2016 with the intention to prevent illegal working in premises licensed for the sale of alcohol or late night refreshment;

·        

On the 3.12.21 Immigration enforcement entered Nibana restaurant under S.179 Licensing Act 2003, the details were as follows:

o    

Four arrests were made for illegal working and a £40,000 penalty was issued to Future Spice Limited. The penalty was maintained following an objection. The penalty is being paid by instalments with the last payment on the 11 August 2022. The current balance is £35,555,52 (as at 16.08.22). One of the workers found working illegally was the same person as had been found working illegally in 2016.

o    

One of the illegal workers was working at one of the burner rings cooking food, dressed in black and wearing a black apron. Checks on the Home Office system revealed he had no permission to work. He said he had been working there for two weeks and helped chef cook the curry. He worked every day for 5 - 6 hours and had a day off each week. He said he had wanted to help as a volunteer. He had found the restaurant on a Facebook staff enquiry post. Mr Miah had interviewed him and he thought he was the boss. Mr Miah gave him 2 months as a volunteer - he did not get paid and just received food and accommodation. He had provided Mr Miah with documentation

o    

The second illegal worker had been working there since June 2021 and was a cook/second chef. He worked 35 hours over 5 days. He identified Mr Enayeth Hussain as the person who offered him the job and said that it was either Mr Hussain or his brother who paid him. He was paid £8.91 per hour by cheque and he gets free food and accommodation. He thought he was allowed to work in the UK because of his card; he did not know what right to work checks had been carried out but he had showed the boss his card as he had asked him for documentation to prove his right to work. The officer had confirmed to him that the card he held meant that he could only work on the shortage occupation list and that working in a restaurant was not on that list.

o    

Two other workers confirmed that they did not have the right to work in the UK. The two workers were interviewed but throughout the interview Mr Hussain tried to interrupt and answer the questions for them. The officer also noted that Mr Hussain tried to gauge eye contact with one worker when he was being questioned about how much he is paid and on what basis. The officer felt this could have influenced the answers.

o    

Worker 1: Had been working as a pot washer for one month working 5 days a week from open until close of the restaurant. He only worked when needed. He said his friend and the boss had given him the job. He was paid with food for his work. He said the manager of the restaurant paid him. He had showed the manager his card before starting work.

o    

Worker 2: The other worker said he had been there for about four months as a pot washer and prep worker. He worked about 5 days but it depended on when he was needed. He said an Eritrean man had offered him the business but he did not know his name. He said that Mr Enayeth Hussain had employed him and that he was the one who told him what to do. He was paid in cash and received around £60. He said he had not been asked to show any documents to his boss. He hadn't told him that he was not allowed to work in the UK

o    

Mr Hussain was present when the officers entered the premises

·        

Previous visits have taken place on :

•         31.07.2015 where two arrests were made for illegal working and a £20,000 penalty notice was issued to Future Spice limited. The penalty was maintained after an objection. The penalty was paid by instalments with the last payment being made on the 10.09.2019

•         26.07.2016 where one arrest was made for illegal working and a £15,000 penalty was issued. The penalty was maintained following an objection. It was paid by instalments with the last payment made on 21.01.20

•         08.04.2021 where no illegal workers were encountered however, the manager went into the kitchen before signing the Notice to Occupier and at the same time rear cover heard a door open/close but could not see due to the fence. It was thought possible someone left the kitchen and went into the accommodation upstairs. This was a police led operation following an allegation of modern day slavery. The premises were in partial lockdown at the time and so powers under the Licensing Act 2003 could not be used.

•         On each occasion an advice leaflet would have been left with the premises stating what checks needed to be done to ensure employees has the right to work. In particular, the officer confirmed that she had handed a leaflet to Mr Hussain at the last visit;

·        

it was felt that the business had a clear history of employing illegal workers and had received three civil penalties totalling £75,000 and had failed to alter its practices;

·        

whether by negligence or wilful blindness, illegal workers were engaged in activity on the premises on three separate occasions;

·        

it is a simple process for an employer to ascertain what documents they should check before a person can work. It is an offence to work when disqualified from doing so, and the offence can only be committed with the cooperation of a premises licence holder or its agents. It is also an offence to employ an illegal worker where there is reason to believe this is the case;

·        

all operations conducted by Home Office Immigration Enforcement are intelligence led;

·        

the premises under the control of Mr Enayeth Hussain had repeatedly employed illegal workers going back as far as 2015 and had clearly failed to meet the crime prevention objective on multiple occasions;

·        

they believe the illegal workers were engaged for commercial reasons by the management of the premises and that a warning was inappropriate and therefore they proceeded straight to review;

·        

the penalty notices were issued to Future Spice Limited as they operate the restaurant itself;

·        

an illegal working compliance order had not been applied for through the courts, as given the history and fines issued they did not consider that this would work or deter the premises licence holder from employing illegal workers;

·        

the request was that the licence be revoked as a deterrent to others and the management/owner of the premises. Applying conditions or suspension of the licence was not considered sufficient as it would not act as a deterrent to the licence holder or other premises licence holders from engaging in illegal activity by employing illegal workers and facilitating disqualified immigrants to work illegally. Illegal working is biggest driver for entry into UK and can be a part of modern slavery. Workers do not pay taxes or national insurance, they do not have a pension or any work rights. It is common place and premises are given multiple chances to comply. The checks required to be carried out are simple and if they are carried out, illegal working does not happen;

(3)

considered the written response to notice of hearing and verbal representations from the Premises Licence Holder (PLH) and his solicitor as follows:

·        

the PLH accepts that there is justification for the review in accordance with crime prevention licensing objective;

·        

PLH is worried and disappointed about the application because he considered that he had been fined and that this was his punishment and had not appreciated that his licence would be reviewed;

·        

he accepted that there had been failings with procedures to recruit staff which had result in the employment of people who were working illegally. The issues were down to genuine mistakes being made; it was not done intentionally. They were not cutting corners to make more money. All workers were paid by bank transfer and had the same rights as all other workers. They are part of PAYE and all get a wage slip;

·        

 they had not understood the information on the workers card relating to the occupation shortage limitation;

·        

the PLH now have a new policy in place of how they do their checks and they are working with local councillors now to ensure they have the right processes in place. They do ID checks, passport checks and a checklist of employees is on file;

·        

following the visit from Enforcement Officers in April, the director of the business had set up a gateway account on the Government website which both he and the PLH had access to. When asked why further illegal workers had been found after this had been set up the PLH said that this was because it was a genuine mistake and had happened at a very busy time;

·        

there was no evidence from other responsible authorities or agencies to suggest that he is not complying fully with every other condition on the premises licence;

·        

the premises does great charity work. This was supported by the letter from the Soup Run group that had been supplied. They operate the business from their heart and have never wanted a problem with licensing. The restaurant is a community place;

·        

the PLH would also like the committee to take into account the livelihoods of the eleven employees at Nibana and the financial hardship that would be caused to them in the event of a suspension or revocation of the licence;

·        

the workers who were interviewed gave a different account of their pay arrangements because they did not want to jeopardise their own cases;

·        

the guidance issued by the Secretary of State suggested that Licensing Authorities should normally look to the police for the main source of advice in relation to Crime and Disorder. There had been no representations from them which indicated the police have no concerns about the way it operates;

·        

the option was available to the committee to attach conditions to the licence and that the guidance indicated that these could be used to target illegal working. In particular, the committee were directed to paragraph 10.10 of the guidance. The Home Office were asking for the most severe penalty but the PLH had admitted his failings and paid substantial financial penalties. The problems had not arisen as an attempt to cut corners, the workers were being paid and he had changed his practices going forward. The aim was plainly to make sure there is no repeat of the illegal working happening. Nearly a year had passed since the last visit and there had been no repeat. Conditions would target that they must make sure employees have the right to work, make sure those checks are evidenced, regardless of how long the employee has worked there;

·        

revocation was not the appropriate action to take but any of the options available to the committee must be appropriate and proportionate. Conditions would be the most appropriate way forward, they would set out clearly what is required of him;

(4)

considered the written representations from Councillor Singh as follows:

·        

he has worked with Mr Husain and Mr Ul-Axam for many years;

·        

they have held the licence for nearly 15 years and have never had any issues in relation to any of the licensing objectives. They have a strict challenge 21 policy and have posters displayed at the front entrance and on the bar;

·        

the staff, premises licence holder and DPS are all of good character; they are honest and upfront;

·        

they have made a mistake and were misled by the individuals and are now paying the price. It has been expensive and they have realised their errors;

·        

one of the individuals was paying full tax, national insurance and on the books;

·        

one of the employees work permit card showed they were permitted to work on the shortage list;

·        

they have now updated their systems in how they employ people;

·        

the licence is of paramount importance to local suppliers, employment in the community and the charitable work they do in the local community;

·        

they are helpful and supportive in the local community;

·        

they play a pivotal role in the community during the pandemic when they were supplying curries to NHS workers and ambulance drivers;

·        

every 2 months they do a soup run and feed the homeless;

(5)

in reaching their decision the committee took into account all the evidence provided by the Home Office Immigration Enforcement, the Premises Licence Holder and his solicitor, and Councillor Singh, with the exception of the following which was not deemed to be relevant to the promotion of the Licensing Objectives:

·        

the need to revoke the licence for a deterrent effect on other premises;

·        

any charitable work carried out by the PLH;

·        

the importance of the licence to local supplies and employees;

(6)

the Committee were satisfied that the Home Office Immigration Enforcement were the appropriate Responsible Authority in relation to this particular issue and the prevention of crime and disorder licensing objective, rather than the police, in this case. It noted that the PLH had said that there were new policies in place to ensure that illegal working did not occur. During the course of the committee these were shared with Home Office Immigration Enforcement. Their view was that these procedures were poor. For example, there was no evidence of any home office checks being run on the documents or certificates referred to. There was no date that the checks had been done and no process for ensuring  that checks were being carried out to ensure that expiry dates on anyone with a limited right to work were being reviewed. However, the committee considered that the PLH had demonstrated by what he had said that he was willing to comply. Given that there had been no representations from any other responsible authority, there was no reason to think that he would not comply with further conditions on his licence. The committee therefore considered that it was appropriate and proportionate in this case to impose further conditions on the licence directly relating to the right to work checks to ensure that the crime prevention licensing objective was upheld. In reaching this decision the committee had considered paragraphs 2.6, 10.10, 11.27 and 11.28 of the statutory guidance;

(7)

the Committee therefore agreed that the following conditions would be imposed on the licence:

(a)

PLH must carry out right to work checks in accordance with the guidance issued by the government (which is available on the gov.uk website) on all employees (including current employees) employed by the business;

(b)

PLH must set up and keep a register of all right to work checks carried out for each employee (including current employees). This must include (but is not limited to) a list of the documents checked for each employee, who carried out the check, the date they were checked, the date for any expiry of their right to work and where there is an expiry date on the right to work, a date set for review for that employee;

(c)

PLH must keep a copy of any document inspected as part of the checks made on an employee’s right to work. Those records are to be kept for the duration of that person’s employment and for 2 years thereafter;

(d)

the register of right to work checks must be available for immediate inspection by any officer of the Licensing Authority, Home Office Immigration Enforcement or any police officer. It must be produced immediately on request by any of those officers. Copies of the documents inspected as part of the right to work checks must also be available for inspection and production as set out above.