In East Lindsey District Council v Abu Hanif (a licensed restaurant and takeaway)
a High Court Judge has restored a licensing authority’s decision to
revoke a premises licence for employment of an illegal worker.
The 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
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
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 £4,000.
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 is head of chambers at Cornerstone Barristers. Together with David Dadds, he appeared for East Lindsey District Council, instructed by Dadds LLP. Philip can be contacted on 020 7242 4986 or
Source: Local Government Lawyer- 15 April 2016- All rights acknowledged