To consider the attached report.
The three Councillors that presided over this review were Councillors C P Pond (Chairman), J M Whitehouse and S Heather. The Chairman welcomed the participants and requested that they introduce themselves to the Sub-Committee.
In attendance on behalf of the premises were Ms N Beck solicitor for the premises and the Manager Mr Chi Kwong Wu.
In attendance on behalf of the application were Mr G Ashford, Mr D Colwell and Mr P Jones from Essex Police.
The Chairman then introduced the Members and Officers present and outlined the procedure that would be followed for the determination of the review.
The Licensing Compliance Officer advised the Sub-Committee that an application had been received from the premises license holder advising that they were applying to transfer the license from Mr Chi Chiu Wu to his brother Mr Chi Kwong Wu. This could not be considered at this meeting as it was a separate application and would be heard at a later date.
(a) The Application before the Sub-Committee
The Licensing Compliance Officer introduced the application which had been made by Essex Police to review the premises licence for Wo Fat, 270-272 High Road, Loughton IG10 1RB on the grounds of the Prevention of Crime and Disorder.
The grounds for the review were that in December 2018 Immigration Compliance and Enforcement Officers of the Home Office attended the premises and discovered disqualified persons working illegally at the premises. The statutory crime prevention objective 2003 Act includes the prevention of immigration crime and the prevention of illegal working in licensed premises.
A review application had been made by Essex Police Licensing Officer Mr D Colwell on behalf of Essex Police, under Section 51 of the Licensing Act 2003 and to be determined under Section 52 of the Licensing Act 2003.
The application for review had been advertised as required by the Licensing Act 2003 and six letters were received opposing the review and in support of Wo Fat Restaurant.
Having considered the representations from all parties the Sub-Committee had to determine the application for the review of the premises licence as it considered necessary for the promotion of the licensing objectives which were:
· Prevention of crime and disorder;
· Public safety;
· Prevention of public nuisance; and
· Protection of Children from Harm.
In coming to a view about whether such steps were necessary for the promotion of the licensing objectives, the Licensing Sub-Committee would need to take into account the review application, any relevant representations, the evidence given at the hearing, the representations made by the premises licence holder, the Guidance issued by the Secretary of State and the Council’s Licensing Policy.
Where it was considered necessary for the promotion of the licensing objectives, the options available to the Licensing Sub-Committee were under Section 52 (4) of the Licensing Act:
and for this purpose, the conditions of the licence were modified if any of them were altered or omitted or any new conditions added.
(b) Presentation of the Applicant’s Case
Mr G Ashford, Essex Police stated that the six letters opposing the review should not be taken into consideration as they did not relate to licensing objectives.
Mr D Colwell, Essex Police advised that in early October 2018, Immigration Enforcement had received an allegation that illegal workers were working at Wo Fat, 270-272 High Road Loughton, Essex IG10 1RB. The allegation specified that the illegal workers had been working at Wo Fat for the past 12 months and lived in the accommodation above the business.
On the 6 December 2018, Immigration Compliance and Enforcement Officers attended Wo Fat and entered using their powers under Section 179 of the Licensing Act 2003. They encountered seven persons working at the restaurant who had no leave to remain in the UK and no right to work in the UK. All 7 were subsequently detained.
It was established that six of the seven persons encountered had entered the UK illegally by boat in 2009. At the time of the visit from Immigration Mr Chi Chiu Wu was the designated premises supervisor and premises licence holder.
On entry to the premises a number of persons were detained by Immigration Compliance and Enforcement Officers, moved to a sterile area of the restaurant and questioned by separate Officers.
Mr P Jones, Essex Police Licensing Officer spoke with the manager Mr Chi Kwong Wu who stated that he had been the manager for approximately 10 years and was the brother of the Premises Licence Holder and Designated Premises Supervisor Mr Chi Chiu Wu.
Mr Chi Chiu Wu then arrived at the restaurant and produced his personal licence to Mr Jones. He was asked whether he carried out any right to work checks on his employees and he replied that they were at his home. He left the premises and returned 30 minutes later and presented payroll paperwork but the paperwork did not relate to the individuals detained by Immigration.
The premises above the restaurant were then attended by Mr P Jones who found them to be dirty and in a poor state of repair. It was believed that the seven individuals were not paid the national Living Wage and therefore were being exploited as they could not go to the authorities to complain about pay and living conditions and whose employment lines the pocket of their exploiters. In short, this was an example of modern day slavery.
This flagrant disregard of employment and revenue legislation has allowed this employer to absolve himself of liability for employer pension and National Insurance contributions and by employing these subjects it had enabled them to remain in the UK unlawfully.
Wo Fat and its management were already known to Immigration and Compliance Officers as on the 13 September 2013 a similar enforcement visit was carried out where seven different people were arrested as immigration offenders. Mr Chi Chiu Wu has been the Premises Licence Holder and Designated Premises Supervisor since 9 September 2008 and therefore this was the second such incident during his tenure at Wo Fat.
Mr Colwell highlighted points of the Guidance to the Sub-Committee.
Paragraph 11.26 of the guidance states:
‘Where the licensing authority is conducting a review on the grounds that the premises have been used for criminal purposes, its role is solely to determine what steps should be taken in connection with the premises licence, for the promotion of the crime prevention objective…… The licensing authority’s duty is to take steps with a view to the promotion of the licensing objectives and the prevention of illegal working in the interests of the wider community and not those of the individual licence holder’.
Paragraph 11.27 of the Guidance states:
‘There is certain criminal activity that may arise in connection with licensed premises which should be treated particularly seriously. These are the use of the licensed premises for….. employing a person who is disqualified from that work by reason of their immigration status in the UK’.
Essex Police would draw the Sub-Committee’s attention to the change in wording of this paragraph following the April 2017 revision of the guidance, where the previous reference to ‘knowingly employing’ was removed.
Paragraph 11.28 of the Guidance states:
‘It is envisaged that licensing authorities, the Police, the Home Office (Immigration Enforcement) and other law enforcement agencies, which are responsible authorities, will use the review procedures effectively to deter such activities and crime. Where reviews arise and the licensing authority determines that the crime prevention objective is being undermined through the premises being used to further crimes, it is expected that revocation of the licence – even in the first instance, should be seriously considered’.
Essex Police considered this paragraph self-explanatory; where an enterprise employs illegal workers, it was the duty of Essex Police to work with Immigration Enforcement to bring forward reviews and for the authority to consider revocation in the first instance.
(c) Questions for the Applicant from the Sub-Committee
There were no questions for the Applicant.
(d) Questions for the Applicant from the Premises
There were no questions for the Premises.
(e) Presentation of the Premises Case
Ms N Beck, solicitor advised the Committee that the police evidence was not disputed and her client accepted the seriousness of the offence. She asked the Sub-Committee to take on board that her client had put measures in place since the visit from the Immigration Compliance and Enforcement Officers in December 2018 and confirmed that all workers were now legal with the correct paperwork and the restaurant was compliant. The licensing objectives were now not being undermined and she asked the Sub-Committee to consider all of the options.
Ms N Beck advised that her client had received a substantial financial penalty to which they have accepted and revocation of the licence would mean the likelihood of the business having to close and a number of legitimate staff being unemployed.
(f) Questions for the Premises from the Sub-Committee
The Sub-Committee had no questions to ask.
(g) Questions for the Premises from the Applicant
Mr G Ashford stated that in 2013 seven illegal workers were found on the premises and asked why were another seven illegal workers found at the premises in 2018.
Mr Chi Kwong Wu stated that he recognised the wrong doing but every worker had now been checked and they were all legal with the correct paperwork. In 2013 he advised that he was only staff and did not become the manager until 1 April 2018.
(h) Closing Statement from Essex Police, the Applicant
Mr D Colwell summed up by saying that this was the second occasion in 5 years that illegal workers had been found at the premises.
It was unfair on other businesses in the area and the loss of their licence would not close the restaurant people could still come in to eat and bring their own drink with them.
In seeking revocation, Essex Police had considered and rejected conditions as an alternative, in part because this was specifically addressed in paragraph 1.16 of the Guidance.
‘Licence conditions should not duplicate other statutory requirements or other duties of responsibilities placed on the employer (my emphasis) by other legislation’.
Therefore we urge the Sub-Committee to consider revoking the license.
(i) Closing Statement from the Premises
Ms N Beck summed up by saying that they were aware and accepted the seriousness of this review but assured the Sub-Committee that there would be no further incidents of this nature in the future.
(j) Consideration of the Application by the Sub-Committee
The Sub-Committee left the chamber to consider the review of the premises licence requested by Essex Police in private.
During their deliberations, the Sub Committee received the following advice from the legal officer present:
(i) Article 1 of the First Protocol of the Human Rights Act 1988 that every person was entitled to the peaceful enjoyment of his possessions (in this case the Licence). No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
(ii) That any decision made in respect of the premises licence for Wo Fat Restaurant, 270-272 High Road, Loughton, Essex IG10 1RB must be necessary and proportionate.
(iii) Details of our powers under Section 52 (4) of the Licensing Act 2003.
(iv) Powers of a Licensing Authority on the determination of a review paragraphs 11.16 to 11.28 Guidance under Section 182 of the Licensing Act 2003 (April 2018 edition).
That the decision of this Sub-Committee after considering the representations taken by the Licensing Authority was to revoke the licence.
Having received and read all of the paperwork before us at this hearing and listened to the representations from Essex Police and the Solicitor on behalf of Wo Fat, we do not believe that there was any other option open to us.
This was the second occasion when illegal workers have been found at the premises (in 2013 and 2018) which we believe would have continued had the visits from Immigration Officers not taken place. This was not just a case of confusion over paperwork, it was an exploitation of vulnerable people. The two brothers Chi Chu Wu and Chi Kwong Wu were and are involved in the management of the restaurant known as Wo Fat, on both occasions.
The guidance indicated that our decision should be a deterrent to other potential perpetrators and no other decision would fulfil this objective. We considered the options to remove the designated premises supervisor of the Licence or the suspension of the Licence but as previously indicated we did not feel that this would be sufficient.