Skip to main content

Public Bill Committees

Debated on Tuesday 20 October 2015

Immigration Bill (First sitting)

The Committee consisted of the following Members:

Chairs: † Mr Peter Bone, Albert Owen

† Blomfield, Paul (Sheffield Central) (Lab)

† Brokenshire, James (Minister for Immigration)

Buckland, Robert (Solicitor General)

† Champion, Sarah (Rotherham) (Lab)

† Davies, Byron (Gower) (Con)

† Davies, Mims (Eastleigh) (Con)

† Elphicke, Charlie (Lord Commissioner of Her Majesty's Treasury)

† Harris, Rebecca (Castle Point) (Con)

† Hayman, Sue (Workington) (Lab)

† Hoare, Simon (North Dorset) (Con)

† Hollern, Kate (Blackburn) (Lab)

† Lewell-Buck, Mrs Emma (South Shields) (Lab)

† McLaughlin, Anne (Glasgow North East) (SNP)

† Newlands, Gavin (Paisley and Renfrewshire North) (SNP)

† Smith, Chloe (Norwich North) (Con)

† Starmer, Keir (Holborn and St Pancras) (Lab)

† Tolhurst, Kelly (Rochester and Strood) (Con)

† Whittaker, Craig (Calder Valley) (Con)

Marek Kubala, Joanna Welham, Committee Clerks

† attended the Committee

Witnesses

Judith Dennis, Policy Manager, Refugee Council

Mike Kaye, Co-ordinator, Still Human Still Here

John Wilkes, Chief Executive, Scottish Refugee Council

Professor Sir David Metcalf CBE, Chair, Migration Advisory Committee

Kevin Green, Chief Executive Officer, Recruitment and Employment Confederation

John Miley, Chair, National Association of Licensing and Enforcement Officers

Caroline Robinson, Policy Director, Focus on Labour Exploitation

Public Bill Committee

Tuesday 20 October 2015

(Morning)

[Mr Peter Bone in the Chair]

Immigration Bill

Before we begin, I have a few points to make. Please switch electronic devices to silent mode. For some reason I have never entirely understood, tea and coffee are not allowed during the sittings. Today we will first consider the programme motion on the amendment paper, then a motion to allow us to deliberate in private about our questions before our oral evidence sessions, and then a motion to enable the reporting of witnesses’ evidence for publication. Given the time, to allow us most time for cross-examining witnesses I hope that we will be able to take the motions formally.

Ordered,

That—

(1) the Committee shall (in addition to its first meeting at 9.30 am on Tuesday 20 October) meet—

(a) at 2.00 pm on Tuesday 20 October;

(b) at 11.30 am and 2.00 pm on Thursday 22 October;

(c) at 9.30 am and 2.00 pm on Tuesday 27 October;

(d) at 11.30 am and 2.00 pm on Thursday 29 October;

(e) at 9.30 am and 2.00 pm on Tuesday 3 November;

(f) at 11.30 am and 2.00 pm on Thursday 5 November;

(g) at 9.30 am and 2.00 pm on Tuesday 10 November;

(h) at 9.30 am and 2.00 pm on Tuesday 17 November;

(2) the Committee shall hear oral evidence in accordance with the following Table:

TABLE

Date

Time

Witness

Tuesday 20 October

Until no later than 10.15 am

Still Human, Still Here; the Refugee Council; Scottish Refugee Council

Tuesday 20 October

Until no later than 10.45 am

The Migration Advisory Committee

Tuesday 20 October

Until no later than 11.25 am

The Recruitment and Employment Confederation; the National Association of Licensing and Enforcement Officers; Focus on Labour Exploitation

Tuesday 20 October

Until no later than 2.30 pm

The Confederation of British Industry

Tuesday 20 October

Until no later than 3.00 pm

Migration Watch UK

Tuesday 20 October

Until no later than 3.45 pm

National Landlords Association; the Residential Landlords Association; the British Bankers Association

Tuesday 20 October

Until no later than 4.15 pm

The Metropolitan Police; Sandwell Metropolitan Borough Council

Tuesday 20 October

Until no later than 5.00 pm

The Children’s Society; Coram Children’s Legal Centre; the Office of the Children’s Commissioner

Thursday 22 October

Until no later than 1.00 pm

The Immigration Law Practitioners’ Association; Manjit Gill Q.C., Colin Yeo, barrister; the Detention Forum; Migrants’ Rights Network

Thursday 22 October

Until no later than 2.45 pm

The Local Government Association; the Association of Directors of Children’s Services

Thursday 22 October

Until no later than 3.30 pm

The UNHCR; the British Red Cross

Thursday 22 October

Until no later than 4.30 pm

The Joint Council for the Welfare of Immigrants; Amnesty International; the Equality and Human Rights Commission; Liberty

(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 10; Schedule 1; Clause 11; Schedule 2; Clauses 12 to 18; Schedule 3; Clauses 19 to 27; Schedule 4; Clauses 28 and 29; Schedule 5; Clauses 30 to 34; Schedule 6; Clause 35; Schedule 7; Clause 36; Schedule 8; Clauses 37 to 50; Schedule 9; new Clauses; new Schedules; Clauses 51 to 56; remaining proceedings on the Bill;

(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 17 November.—(James Brokenshire.)

On the basis of the programme motion, the deadline for amendments to be considered on 27 October, when the Committee will begin line-by-line scrutiny of the Bill, is the rise of the House on Thursday 22 October.

Resolved,

That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(James Brokenshire.)

Resolved,

That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(James Brokenshire.)

Copies of written evidence that the Committee receives will be made available in the Committee Room. We will now go into private session to discuss our lines of questioning, so anyone who should not be here should now please go.

The Committee deliberated in private.

Examination of Witnesses

Judith Dennis, Mike Kaye and John Wilkes gave evidence.

We will now hear oral evidence from Still Human Still Here, the Refugee Council and the Scottish Refugee Council. Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme motion that the Committee has agreed. For this session, we have until 10.15 am. Welcome to our witnesses; will you please introduce yourselves for the record?

Mike Kaye: I am Mike Kaye, the advocacy manager for Still Human Still Here.

Judith Dennis: I am Judith Dennis, policy manager at the Refugee Council.

John Wilkes: I am John Wilkes, the chief executive of the Scottish Refugee Council.

Q 1 It is a pleasure to serve under your chairmanship, Mr Bone. This question is directed to Judith Dennis and Mike Kaye in the first instance. You have both expressed concern about the adverse consequences of the provisions on the removal of support in the Bill. Will you tell the Committee what, in headline terms, your concerns are? You have also expressed a concern that the provisions will fail to further the Government’s stated aim, so as well as the adverse consequences, will you outline how, if at all, the Bill will support the Government’s stated aim?

Judith Dennis: We think that the Bill is incompatible with the processes for families to engage with the Home Office if they want to return or have come to the end of the asylum process—these measures would not be compatible with that. The Bill will shift responsibility to local authority children’s services, which have a duty to support children in need. We do not think that it will achieve the desired outcome, partly because families will inevitably lose touch with the Home Office—there will be no incentive for them to keep engaging with the Home Office to try to resolve their situation. Indeed, when a similar measure was piloted in the past, that is what happened. Mike can probably talk more about the impact on individuals.

Mike Kaye: To take up that point, one of the Bill’s goals is to encourage the departure of refused asylum seekers with no lawful right to remain. Members of the Committee should be in no doubt that the Bill will not increase voluntary returns or forced removals. You do not need to take my word for that. We already have on the books section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which allows these very measures to be put in place. The Home Office’s own review of a pilot carried out in 2005 found that a third of families absconded. The review compared the pilot with a control group of people who continued to be supported, and the number of people who absconded in the pilot was double that in the control group who were supported. The number of forced removals in the pilot was one family, as compared with nine in the control group. The Home Office’s conclusion was that it did not significantly increase voluntary returns and that it should not be used as a blanket policy. It is ironic, therefore, that 10 years on, we are trying to implement the very policy that did not work beforehand. You only have to look at other reviews that have been carried out, where Home Office staff have said, “You should keep refused asylum seekers supported because it allows them to be removed”, yet the Home Office is ignoring the advice of its own staff.

I have to say that this is really an abdication of immigration control—if Committee Members are concerned about immigration control, they should be concerned about this measure—but much worse, it is an abdication of responsibilities to children’s welfare. Bear with me, and I will explain what the impact will be on the people affected. Asylum seekers generally do not have great health. You have people who have experienced torture or who have witnessed or had traumatic experiences. The Royal College of Psychiatrists said that their mental health deteriorates on impact with the system. If they are pregnant, they are three times more likely to die than the general population—that is in general. The level of support that they are on, and most of them would be destitute, is £5 a day to meet the essential living needs of food, clothing, toiletries, transport and anything else. I am not saying that you will starve on £5 a day—you will not—but if you are on that for an extended period of time, it will have consequences for your health and wellbeing.

Currently, we have more than 3,500 asylum seekers waiting more than six months for an initial decision, and appeals are listed six months ahead. Now, if you get to the point where you cut that group off entirely from support, their health will deteriorate much faster than that of the general population. It will cause and exacerbate existing health problems. You only have to look at some of the serious case reviews from the last few years, where asylum-seeking mothers have died from health issues. Those serious case reviews have found that the removal of support was one of the exacerbating factors, so we should be in no doubt that this will have very serious consequences.

Q 2 You have mentioned the adverse consequences and the number of families in the pilot, some years ago, who disappeared off the radar. How does this compare with supported returns—family support in the return programme—in terms of achieving the Government’s aim?

Mike Kaye: As I just mentioned, one of the aims is getting people to return home, and it is less effective once you remove support, because, as Home Office staff have said, when you do not know where someone is, it is that much more difficult to locate and remove them, so the absconding rate is double once you remove support. Even if asylum seekers wish to stay in contact, and there is no incentive for them to do so, it is very difficult once they become destitute, so this does not achieve the stated goal of trying to get people to return home at the end of the process.

Q 3 Thank you. You have mentioned children and the impact on them on a number of occasions. Will you give a bit more detail on what the impact might be on local authorities if support is withdrawn for children that come within their area? How does that work and what might the consequences be for the local authority?

Judith Dennis: The local authority has a duty to all children in its area who are in need, so it will be obliged under that legislation to assess the needs of families and of those children, and to provide services accordingly. Of course, in this country, we are very proud of the Children Act in England and Wales, and the Children Acts in Scotland. We are under no illusion that local authorities will want to fulfil those duties and will want the Government to support them financially for that, but we can see from other families who have no recourse to public funds that local authorities are bearing the responsibility of providing for the children. Of course, if you are going to provide for the children, it is both morally and financially sensible to provide for the whole family, so we think there will be a great impact on local authorities.

Q 4 Following up on that, you have mentioned finances. Are there circumstances in which you envisage that it will be necessary to remove a child from a family in order for support to be provided by the local authority?

Judith Dennis: That should only be done if there are concerns about the parenting, as with other families. It is not a principle of the Children Act that we remove children from their parents and carers if they are doing a perfectly fine job of looking after them. The Children Act was brought in with that principle in mind: that families should stay together, because they are the best people to bring up their own children, and that should happen regardless of the financial difficulties they are in. That is why we have the Children Act to provide that financial support where necessary.

Q 5 Hence the local authority, in those circumstances, would step in and provide the support that is being removed under the Bill.

Judith Dennis: Indeed.

Mike Kaye: It is instructive to look at the section 9 pilot again. Barnardo’s did a review with 33 local authorities and none of them thought that section 9, which is the equivalent of what we are looking at with this clause, was compatible with the Children Act. They all had concerns about the transfer of cost to local authorities, which would not be reimbursed; the fact that they would still have to do reviews of whether the child was in need and whether human rights were being breached; and that they were opening themselves up to litigation. All those concerns are equally valid for this Bill. The Government’s intention is that local authorities will not support, but I do not see how you can square the circle with the Children Act in that respect.

Q 6 Thank you. Finally from me, there are provisions in the Bill to prevent appeals against decisions on support. Can you give some evidence as to the quality of the decisions currently being made about the support available in such circumstances?

Mike Kaye: Yes. On the Home Office’s decision-making on asylum support, just to be clear: if someone thinks that there is an obstacle to them returning—for example, they are too sick to travel or they are trying to return but their Government will not issue them with documents—the Government should provide them with support. The same is true for the Bill. In practice, that is often very restrictively interpreted. For example, even when the Iranian embassy was closed, Iranian asylum seekers who were trying to return home and could not get documents were still refused support.

If you are refused support, you can go to the asylum support tribunal. Currently, with more than 60% of cases that go to the tribunal, either the case is overturned by the tribunal, so the asylum seekers are given support; or the decision is remitted back to the Home Office because the tribunal does not think it was right; or the Home Office withdraws the decision because the tribunal thinks it is flawed. If you are getting more than 60% of decisions wrong, how can you take away that means of appeal? You are actually leaving people destitute. That decision to leave a family destitute is far too important to remove the right to appeal, especially when the vast majority of those decisions are wrong in the first place.

Q 7 Am I right that people may be left destitute on the basis of a decision that is wrong or that needs to be retaken?

Mike Kaye: Exactly right.

Q 8 Mr Kaye, do you agree, in principle, that there should be an ability to take sanctions against people who have no right to be in this country and are frustrating efforts to remove them or not co-operating with a voluntary returns mechanism? Do you accept that principle as a legitimate policy response?

Mike Kaye: Absolutely. We have a system whereby we try to discover whether people meet the criteria for refugee status. It is a very tough measure. You have to prove that you are being persecuted as an individual, that your Government are unwilling or unable to protect you, and that there is no other area of your country that you can go back to and be safe. It is a high measure to prove. I fully accept that if people do not meet that and if that assessment is accurate, they need to return to their home countries.

What I have highlighted is that the measures in the Bill will not help you to return individuals who have come to the end of the process. If you really want to return people at the end of the process, you need to stay in touch with them. Quite often an equation is made between refused asylum seekers and abusive asylum seekers. That is not the case for the vast majority. Last year, the Home Office refused 70% of Iraqis, 70% of Libyans, and 65% of Afghans. I am not necessarily saying that those decisions are wrong. I am saying that you need to understand that those people at the end of the process still have a fear about returning and that is why they do not always co-operate. I take the Minister’s point that sometimes people are not co-operating because they do not want to go home and they should rightfully go home, but for an effective policy, you need to stay in touch with people to encourage them to return voluntarily return or if forced removal is to take place.

Q 9 There is obviously a distinction that can be drawn. Clearly, you are not supportive of certain aspects of the policy, but I think you have taken the principle. Can I ask about the safeguards that would operate? Am I right in saying that the provisions under section 55 of the Children Act would apply and that provisions relating to destitution would be there in terms of support?

Mike Kaye: I think it is section 55 of the Immigration Act; but this is a question for you, Minister, about something that we do not understand. You said on Second Reading that the protections in the Children Act would be retained. You said in the consultation that safeguards would be introduced for children. I do not understand how you can safeguard children from destitution when it is the explicit aim of the policy that children should not get support from statutory services, local authorities or central Government. Will you explain that to Members, because I cannot square that circle.

Can I just jump in? I should have explained to witnesses—I apologise for not doing it at the beginning—that Ministers love these sessions. It is a time that they get to ask questions, rather than getting grilled. I want to bring some more Members in, because I have about five queueing up to ask questions.

Q 10 Mr Kaye, are you saying that appeal rights-exhausted families who could and should leave the UK should be entitled to automatic and indefinite support, either from local authorities or the Home Office, if they do not leave?

Mike Kaye: I am saying that if you are really concerned about immigration control, if you want these families to leave, cutting off support from them not only risks the children coming to harm but impairs your ability to enforce removals or encourage voluntary return.

Q 11 My question, though, was whether you are advocating that we provide indefinite ongoing support for people if they refuse to leave?

Mike Kaye: I think that for families with children, that is the way to have effective immigration control.

Could I just jump in? I wonder whether Mr Wilkes and Judith Dennis would like to speak on this particular point as well, so that we hear from all three witnesses.

John Wilkes: I think that we still have to support families and those whose appeal rights are refused while engaging with them about the options for return. Taking away support does nothing to facilitate that; all it does is force them to think about what support they can get or force them to disappear from the system. There are no other families in the UK who do not have some form of entitlement to support, so I do not see why these families, who we are trying to work with on their decision—and ultimately, for people who are in that category, on their removal—should not have support. There is no evidence, from any of the other initiatives the Home Office has tried, that taking away support, particularly for families, is going to achieve the policy goal of removal. That is what the policy goal is: we need to look at other ways of achieving it.

Judith Dennis: I absolutely agree. It is frightening to think of the alternative. We are actually talking about making families destitute, so that they have no means of support. What are they going to do? I do not think that that is going to encourage them to go along to the Home Office and say, “May I sign up for voluntary return, please?” The family returns process is a better process for families, because it takes into account their complex situations and the fact that they have very difficult decisions to make, and that those decisions may take some time to come to. If you are a family who fears that their daughter is going to be subject to female genital mutilation on return, but you have not been able to prove that, you are still going to have that fear. Your fear is then, “Which is better? I’m between a rock and a hard place; I don’t know whether to stay here and take my chances. I may get exploited, I may have to live on the streets, I may have to take support from strangers and sleep in their houses and put myself in dangerous situations. Or do I take my family back to what I think is a dangerous situation”. The family returns process encourages engagement on an ongoing basis. It is a process with four stages; it is very well set out in policy. Family engagement managers are employed specifically to talk to families about those very difficult decisions that they have to make. So I do not think it is reasonable to portray these people as just sitting about, avoiding immigration control and refusing steadfastly to go back to where they came from. It is much more complex than that.

Q 12 Down to brass tacks, then. I think what all three of you are saying is that those families who have exhausted the appeals process, should not be in the UK and should be returning home should get indefinite, automatic support ongoing. Is that what you are all saying?

John Wilkes: People should be supported while we are engaging with them about their choices. There is already a high level of destitution.

Q 13 How far does that go, though? That is the question I am trying to get at, because at the end of the day these people are in our country illegally. How far do we expect the taxpayer to continue paying, whether it is for housing or whatever, for people who should not be in our country?

Mike Kaye: When you say indefinitely, what we are talking about is resolving that case. That is the crux of what we are trying to do—to resolve the case, by those people either returning to the country of origin or getting status in this country. When we say that you are better off supporting them, we are thinking about the taxpayer. This is not saving money, it is simply diverting the cost to the local authority and building up costs down the line. The longer someone stays in the country without your engaging with them—if you make them destitute and they then disappear—the more difficult it is to remove them later on down the line. That is one of my concerns with the measure. It is not effective for immigration control, it is certainly not effective for child protection, and you are not resolving the case; you are simply abdicating responsibility. The Government should not be doing that.

Before we move on, let me say that seven Members want to ask questions so perhaps the witnesses could try to keep their answers a little bit shorter.

Q 14 I have a quick question for Judith, going back to something that you said earlier with regard to the Children Act. Obviously, you have to have valid reasons for removing children, but most children get removed because of neglect, and if a family is left destitute they cannot feed and clothe their child. So do you not envisage child protection departments removing children on that basis if support has been withdrawn?

Judith Dennis: It would not usually be the first step. A social worker will try to resolve the issues that arise out of the family’s situation, depending on the causes and the actors who are playing each part. We have seen, from their recourse to public funds, families who are supported by local authorities. Often social workers will engage with the family to try to help them to resolve their situation. We certainly would not expect social workers to be stepping in and taking people’s children away in the first instance.

Social work ethics mean that you have to resolve the situation and try to keep families together where possible. Most of the social workers we speak to would not feel comfortable about taking people’s children away on the basis that the Government have made the family destitute and forced them to neglect the needs of their children.

Q 15 I used to be a child protection social worker myself, so I totally get what you are saying, but social services departments are overstretched and are really sinking because the resources are not there. If they cannot fill the gap and help that family, that child will go hungry and will be neglected, and it is easier to pay for a child than to pay for the entire family, so could we see some perverse outcomes, with children being removed from their families? Is that a risk at all, do you think?

Judith Dennis: It could be, further down the line. I hope that it would not be. My understanding is that it is much more difficult and costly to take a child into care than to provide basic support such as the asylum support regime does, as has been mentioned before. The support is basic and is to avoid destitution. Taking the child into care means that you have to pay another carer to look after that child when the family are perfectly able to do so. The ethical argument and the economic argument mean that we hope we would not see that, but it is—

There is a chance, down the line, that that could be the case. I just wanted to clear that up. Thank you.

Q 16 Two quick questions from me. The first is on what happens at present to engage with these families. Mr Kaye, you were just saying that the longer we do not engage with them, the more there is a problem; yet, as I have just heard it, Ms Dennis, you were outlining the current process and saying that it was chock full of engagement. Will the panel comment on the ways in which current engagement is different from what happened under the 2005 process, which I understand hinged largely on corresponding with people rather than engaging with them, perhaps as happens at present?

Judith Dennis: The 2005 pilot took away support, or threatened people with taking away their support if they were not taking steps to remove themselves. Partly as a result of the lack of success of that programme, and of hearing from some families in parliamentary work done by various agencies about the complexity of the situation, this programme was established. There are several stages at which family conferences take place, and specialist family engagement managers who understand the process invite the families—parents and sometimes children—to meetings. They are invited to think about whether or not they want to go and they visit the family, and those kind of things. There are lots of steps. Most of the process is designed to help people think about voluntary return, because there are fewer barriers to removal if someone agrees to go rather than being forced to go. So measures that just take away support, rather than put in more support, have been found not to work, and those that put in more support have some more success.

Q 17 I suppose in what you are saying there are two types of support, in the sense of money and of engagement, and just to be clear you are—

Judith Dennis: Indeed. I would say that they need to go hand in hand.

Mike Kaye: I just draw attention to the fact that—the point that I was making—if you cut off support, you cut off all that work, because you no longer engage with that individual and they no longer engage with you. The other point that I would make is that under the Bill we are looking at—the Home Office is talking about—cutting off support to families after 28 days. That is an entirely insufficient amount of time to work with a family to get them to return home. In fact, under the voluntary return programme you would be looking at 90 days. This is for delegated powers, but it would be useful if we could get the Minister to indicate that the minimum would be 90 days.

Q 18 My second question looks back somewhat. Mr Kaye’s organisation, Still Human Still Here, in 2008 gave evidence to the Home Affairs Committee on the then draft citizenship and immigration legislative proposals. Your organisation stated:

“Government asylum support policy is leaving many refused asylum seekers destitute”—

that was clearly the then Government in 2008—and that that destitution

“results from the current statutory scheme”

of that Government. Why is it that two major British political parties, which most recently represented around two thirds of the UK population, would want to pursue such measures when they have been democratically elected?

Mike Kaye: Why would they want to—

Q 19 Why do you think that the Government—either of those Governments—respond to the electorate’s ask?

Mike Kaye: To be frank, it is a total mystery to me after 20 years how Governments can continue to do the same thing and expect a different outcome. Over 20 years Governments have basically been implementing policies that are short-term, deterrent policies, and they have not been resourcing the system to do the job properly. It is a huge frustration to me, because if Government really supported the Home Office to do the job properly, we would not be looking at a problem with asylum seekers. We have had a static number of asylum seekers for 10 years—25,000 applications—well within the realms of the Government’s ability to deal with quickly and efficiently, but we have under-resourced the system so dramatically that we have not dealt with it effectively. The measures being put forward are a repeat of measures that have failed before. We have evidence from previous Governments, all democratically elected—I do not know why we are even talking about whether they are elected or not. They all try to do the same things and, if you look at the evidence, you will see that those things have not worked. That is what is so frustrating—to look at measures in the Bill that are replicating measures that have not worked previously.

Q 20 But they are not, because the 2005 pilot was based on correspondence rather than engagement.

Mike Kaye: Talking about correspondence rather than engagement is not going to be the issue that changes whether this works or does not work.

John Wilkes: I have worked in this field for seven years now, and one of the observations that I would share is that the system has been in a state of constant churn over that seven years. Asylum is a very complicated thing—it is one of the most complicated activities that the Home Office has to do under its responsibilities—and it has had perpetual change in all sorts of aspects of the system, and I mean major organisational changes. So the system has no time to settle down and to have a coherent overview of how these things are done. Doing a pilot in one area of the system when there are things that need to be addressed in other parts of the system means that you do not get the results you need. The system needs some time to settle down and to enable a much more focused approach on the whole system. In that way, you will start to achieve better results.

Mike Kaye: If you look back over the past 20 years—I totally agree with what John is saying—what you see is different Governments setting different targets. What you are generally doing is shifting very limited resources to meet a separate target, which just creates a backlog in a different aspect of the asylum system, and you have big structural changes, which are administratively inefficient, waste time and do not deliver the end goals that you are looking for. If we want to save money, to make the system work more efficiently and to have quicker and more accurate decisions, we need to resource the whole system properly.

Q 21 My question is specifically to John Wilkes. It is about the Scottish issue. Obviously, every country has different legislation. You have been through the changes in legislation coming from this House, so I hope that you will be able to advise us about the impact of this legislation, and the challenges that that presents, in terms of Scottish legislation.

John Wilkes: One of the things we said in our evidence was that the Committee should ensure that the Immigration Bill considers whether the legislative consent process needs to be undertaken with the Scottish Parliament under the Sewel convention, which is actually going to be put into statute under clause 2 of the Scotland Bill, which is currently going through the House. We say that because the whole concept behind legislative consent is that whatever this Parliament does should have no unintended consequences on the business of the other Parliament. There are a number of aspects of the Bill, particularly on asylum support, that we feel would have an impact, in the way colleagues have identified, on local authority responsibilities and on duties to children, which are framed in different legislation in Scotland. There is the Children (Scotland) Act 1995 and the Social Work (Scotland) Act 1968, which, in Scotland, defines local authorities’ responsibilities in terms of a duty of care to people who have no other resources. We believe that one of the duties of this Bill Committee is to ensure that there are no unintended consequences. What the Home Office often says about immigration legislation is that the intention is around immigration. What Sewel also says is that you have to look at the impact of that legislation, and we think that the impact of this legislation potentially involves legislative consent considerations between the two Parliaments.

Q 22 Mr Kaye, could I take you back to what I thought was the nub of your argument? You said—I think I heard you correctly—that as soon as financial support is removed, people lose contact. Can I put the other side of the coin to you? If somebody’s application is finally refused, do they not, against that backdrop, and irrespective of whether financial support is provided, run and hide, because they do not like the decision, and they do not want to leave the country? I am not persuaded that an element of financial support will, in any way, shape or form, encourage them to stay in a continuous dialogue with the Home Office and agencies while preparations for their removal are made.

Mike Kaye: Refused asylum seekers are not one homogeneous group; there are obviously lots of different people in different circumstances. Some people want to go home, and they take voluntary removal. That can take a long time; their Governments may not co-operate in providing them with documents. Others may be too sick to travel. Others should return home, but may abscond. You do not have to take my word for it; I am giving you evidence from studies that have been done. Where you have families that are supported, they generally do not abscond; they stay in touch with the authorities. If you cut off support, and you have refused asylum to a family or an individual, not only do they have no incentive to stay in touch but it will be very difficult for them to do so once they are destitute. It is the Home Office’s own staff who are saying, “Keep them supported, because then we will know where they are. We can stay in touch with them and encourage them to return home.”

Q 23 With respect to officials, we only know where people are if they want us to know where they are.

Mike Kaye: Well, I—

I am sorry. We could go on for an hour about this, but we are really up against the clock, and I have other Members to get in. I would just like the other two witnesses to say whether they agree with the statement that has just been made.

Judith Dennis: Yes. Look at the family returns process data, look at the process, look at the engagement, talk to the family engagement managers and explore how the family returns process works and what is necessary to keep it in place and the families involved.

John Wilkes: I support Judith’s comments.

Lovely. I think it is Paul Blomfield next—or did you have any more questions, Mr Hoare?

Q 24 I did have a few more, if time allowed. I shall try to be brief.

These questions are to all three of you, and they probably need yes or no answers. While you are supporting or advising people going through the process, do you take them to end of the telescope they do not want to look from—that is, how will a decision whereby they are not allowed to remain be implemented? Do you do that in advance on a “just in case, let’s keep all the bases squared” basis?

John Wilkes: Yes.

Judith Dennis: You need to keep faith in the system until they have had their final refusal.

So that is a no. Mr Kaye?

Mike Kaye: Yes, I think 40% of returns are voluntary. That is from Refugee Action, which is working with people to try to get them to go home.

Q 25 I was in Stockholm last year on a cross-party delegation, where we were all impressed by the rate of compliance and returns under the Swedish system. I just wondered what lessons you all felt we could learn from other countries, particularly in relation to this issue of withdrawal of support, in terms of effective compliance, because that is something that we all share an interest in.

Judith Dennis: I do not know enough about the Swedish system, I am afraid. One of the things that worries me about the family returns process—

Perhaps from other international comparisons.

Judith Dennis: One concern when families have come to the end of the asylum process is the lack of legal aid for their immigration cases. Somebody is not often either an asylum seeker or an immigrant; during their time here they may well be in both of those categories. Once their appeal rights are exhausted, they may need professional legal advice to help them pursue their case. There are families who go through the family returns process whose removal is not pursued because they are found to have a right to be there, so we need to remember that we do not always make the right decision first time.

Mike Kaye: The experience of other countries uniformly shows that you want a system that gets the decision right first time and has very little backlog, because that discourages unmeritorious claims. It also, conversely, ensures that you do not have backlogs where it becomes more difficult and, indeed, less reasonable to try to remove people, because the longer they are in the process, they more chance that they will have family obligations here; they have restarted their lives and they may actually have lived the majority of their lives here. If you want a system that works properly, it needs to be resourced to work quickly so that you get accurate and prompt decisions, and those decisions need to be implemented.

John Wilkes: The unintended consequence of backlogs is that when you get to address the backlog, what often happens is that the Home Office exercises its discretion and allows people to remain. The message that that sends to people further back in the system is that if you sit it out longer, you might get a better chance. We need to sort the system out to ensure that decisions are made right first time.

Q 26 Briefly, is there any evidence from other countries that withdrawal of support along the lines proposed in the Bill assists compliance?

Mike Kaye: I cannot speak for other countries, but in the UK we can go right back to 1996 and look at how we have tried to use the removal of support either to reduce applications to the country or to encourage returns, and none of those attempts has worked.

Q 27 Good morning. I have heard what you have said in answer to the questions about what is proposed in the Bill. You have given your objections to what is in the Bill, so can I ask you what you think is the way forward to effect behavioural change? What is your answer to it?

Mike Kaye: My answer—I have referred to this before—is that you need to resource the system properly so that you get quick, accurate decisions and you enforce them. That is not about spending more money, because it is a spend-to-save policy. With each caseworker you employed, you would actually save money from resolving asylum cases earlier in the process. Once you reduce backlogs, you reduce incentives for people to make unmeritorious claims. You also ensure that you do not get, as John was saying, people who have been in the system for a long time whom you can no longer remove because they get other obligations to stay in this country. That reduces cost and makes the system work better, and it gives it credibility.

Anyone else have a view on that?

Judith Dennis: It is important to understand that some cases are complex and some decisions will not be made right first time. You can do the majority right first time, but you need independent scrutiny and you need skilled caseworkers. There are some in the Home Office who are very good at picking up a case and seeing it through to its end, and that has not been incentivised in the past. Incentivising people to pick up a case and not to lose it until they have resolved it is needed. In addition, accept when somebody cannot be returned home, and give them leave.

Q 28 I have two very quick questions. One is for Mr Wilkes, following on from my colleague’s question. Do you think there is a danger that the Bill might contravene the Children (Scotland) Act 1995?

John Wilkes: I do think there is a risk of that. That is why I believe the Committee needs to scrutinise these things, and similarly for the provisions of the Children Act in England and Wales. I believe that is why you need to have a consideration of legislative consent, to ensure that those submissions are made about the potential impacts of that.

Q 29 Thank you. One explanation given for the failure of a 2005 pilot of terminating support was lack of faith in the asylum process. Is there any reason to believe that people have any more faith in that process now?

Judith Dennis: Among those people whose cases are dealt with by experienced and skilled caseworkers, probably. I was very impressed during a visit to one office where a family had a range of complex reasons for being here, including some of those alluded to earlier, and the caseworker took time to understand the complex problems and tried to resolve each one. We can have faith in those people. Unfortunately, it is not really an incentivised skill.

Order. I am afraid the time has beaten us and I must bring this session to an end. I thank the witnesses so much for coming. You can see the interest of Members and I am sure we could have gone on for longer, but thank you for coming.

Examination of Witness

Professor Sir David Metcalf gave evidence.

Q 30 We will now hear evidence from the Migration Advisory Committee. For this session, we have until 10.45am. Will the witness please introduce himself?

Professor Metcalf: I am David Metcalf, emeritus professor at the London School of Economics. I and have been chair of the Migration Advisory Committee since it was established in 2007. The head of secretariat of MAC, Tim Harrison, is also here.

I am grateful for that. I should warn you that this is the favourite session of the Minister because he gets to ask questions, rather than answer them. I have a horrible feeling he wants to start. Minister.

Q 31 Perhaps I could open things up for the Committee by asking an open question. Sir David, what are your thoughts on the establishment of a labour market enforcement directive, the need for greater co-ordination on enforcement, and the impact that might have on the employment market overall?

Professor Metcalf: By the way, the Minister and I are appearing this afternoon as well, so we are seeing a lot of each other today.

In a nutshell, I think the proposals are terrific but let me elaborate. My background includes, as part of the Low Pay Commission, 10 years setting the minimum wage, so I know something about the minimum wage, compliance and enforcement issues.

On the Migration Advisory Committee, particularly when we have looked at less skilled immigration, on which we published a major report in 2014, we do not stay in London; we go on visits. We have seen a lot of exploitation, in some cases bordering on slavery. That in a sense confirms the view that I had when I worked on the minimum wage that we do not have sufficient resources to do the compliance and enforcement as effectively as one would wish. For example, when we went to Wisbech in connection with the low skills report, we came across some excellent examples of joined-up government, with different agencies working together. That got us thinking that we have these very good bodies but are they working sufficiently harmoniously? In our report, we said in no uncertain terms that there were insufficient resources devoted to enforcement and that the fines and probability of prosecution were basically trivial—I do not think we used that word, but I will use it now.

In a sense, many of the employers where the gangmasters operate have no real incentives to abide by minimum standards or the minimum wage. We have a flexible labour market—I think this is a good thing because it helps our productivity and with jobs and so on, although that is a matter of debate—but we are not enforcing the minimum standards.

I think the three main proposals in the BIS-Home Office document will go a long way towards assuaging the concerns that we set out. I know that some of my other academic friends who have thought about this—possibly more than me—share that view. Just as an aside, the consultation document on labour market enforcement is excellent and I am sure that the Committee will recognise the co-operation between the Home Office and BIS. Sometimes there is tension between the Departments, but on this occasion they have produced an absolutely marvellous document.

First, you have a director of enforcement and he or she will, in a sense, set out strategy, report and be the pivotal person in an intelligence hub. They will mainly be dealing with the minimum wage with HMRC, the Gangmasters Licensing Authority and the employment agency standards inspectorate. They are the three bodies that he or she will have to engage with initially and set the strategy out for and think carefully about resource allocation.

The second proposal is a new offence of aggravated enforcement, which is in a sense between the rather minor infractions—I do not want to call them less serious—of the minimum wage rules and those that are very serious, almost slavery. Right now, we have not got anything that sits in the middle and the proposal is essentially to have one that sits in the middle. In the extreme, that might attract a two-year custodial sentence, so it is pretty serious.

The third proposal is that the Gangmasters Licensing Authority can spread out—not so much in its licensing role, but it does have considerable expertise in horticulture and agriculture and the proposal is that it could check in particular on aggravated enforcement in other sectors, such as construction, hospitality and so on. When I was an academic in this area, I wrote that there was a lack of enforcement. I have been involved with both the minimum wage and immigration in particular on the low-skilled end, and I think the proposals are really excellent.

Q 32 For laymen like me, are you saying that the new role of the director of labour market enforcement is a good idea?

Professor Metcalf: A very good idea indeed, yes.

Q 33 Okay. Do you think the director will provide the focus necessary to bridge the gap you say exists between the current labour market offences? You also mentioned lack of resources throughout your answer. Do you think that the Bill will bridge that gap, too?

Professor Metcalf: That is a tricky one. Successive Governments have indeed put in a bit more resources—for example, for HMRC to enforce the minimum wage—although quite whether they are sufficient is an open question. It depends on how the director works, but on the idea of them thinking through the resources required for the three different bodies, and perhaps in future health and safety, for example, and possibly bringing local authorities in as well—strategy is an overused word, but in this case it really is a strategic role. Thinking through quite what the strategy should be will go a long way towards, in your words, filling the gap with the resources. Frankly, the inspections are very resource-intensive, and I suspect we just do not have the public finances for sufficient enforcement.

As an aside, that also takes you into a point that I made in my one paragraph to you: we need to think about punishments as well.

Q 34 In your 2014 report, “Migrants in low-skilled work”, which we have quoted several times, you talk about countries that use the International Labour Organisation labour inspection convention 81 of 1947, which seemed to be particularly effective. Will this new director bring us much closer to that working model?

Professor Metcalf: If I may say so, that is a really good question, because in some senses, what we were feeling our way towards in the “low-skilled” report was the notion of having an overall labour market inspectorate, which that ILO convention is about. What happened was the Prime Minister took up the issue of enforcement in the speech immediately after the election and set up an immigration taskforce, but on the immigration taskforce, you have different Departments who have different interests—the Treasury, with HMRC, and now the Home Office, with the Gangmasters Licensing Authority, and so on. I think it is quite understandable that the immigration taskforce—the ministerial taskforce—and probably, the Cabinet Office and so on, did not want to disrupt the machinery of Government completely and start with a blank sheet of paper and set up a new labour market inspectorate. They wanted people to get on with the job but have much more joined-up thinking and overall strategy.

We are where we are, and it may well have been that we would almost have had no labour market enforcement for the two years while we were trying to set the inspectorate up. It would be very difficult. Some of the people are not civil servants and some are, and they are located all over the place. Sticking with what we have got and trying to approach it in probably an incremental way is actually very sensible.

Q 35 Mr Bone, it is a pleasure to serve under your chairmanship. I have a couple of questions. I am a big fan of the anti-slavery commissioner. I think that in six months, he has had a big impact, precisely because he is independent and has a remit that goes across different Departments and organisations. You said that it was key that the post of director is able to work harmoniously with other Departments, but you mentioned the Health and Safety Executive and local authorities, and a lack of clarity about what the relationship would be. Do you think that ought to be fleshed out on the face of the Bill for this post to have the maximum impact?

Professor Metcalf: No, I do not think so at this stage. Doing it incrementally is really a rather good idea. The main enforcement people currently are the three in the Bill—the employment agencies, the Gangmasters Licensing Authority, and HMRC, with the minimum wage. In a sense, the new director, whoever he or she is, will have a major task to get those agencies to work in a bit more of a joined-up way. There may well be a case in the future for trying to bring in, under the same strategic role, health and safety, local authorities and on occasions, possibly the Department for Work and Pensions as well, which deal with national insurance, for example. For me, it is a major task to do what is being done, and I do not think that at this stage, it is necessary to do that, but it is possible that we might even think, three or four years down the line, when we have seen how it works, “This is three quarters of the way to a fully-fledged labour market inspectorate. Perhaps we could transform it into a labour market inspectorate and bring the other bodies in as well.” But I think this is very good—it is not a halfway house; it is a three-quarter-way house.

Q 36 You also mentioned the need for sufficient resources. Do you believe that, as things stand, the director does have sufficient resources to prevent worker exploitation?

Professor Metcalf: Probably not, but in the consultation document and, I think, in the Bill, it does not actually set out quite what the resources are.

Q 37 What do you think they should be?

Professor Metcalf: I think that successive Governments have put more resources in—certainly into HMRC, but less so with the Gangmasters Licensing Authority. One understands the difficulties with the public finances, but we probably do not have sufficient resources. In the low-skilled report, we calculated that you would get an inspection from HMRC once every 250 years and you would get a prosecution once in a million years. That suggests that we do not have enough resources. In turn, that takes you to the potential trade-off between the resources and the punishments. If you do not have sufficient resources, you may need to ensure that the punishments—certainly on occasion—are properly implemented. That is why I am in favour of the new offence of aggravated exploitation, which, in the extreme, carries a two-year jail sentence.

Q 38 Your hope was that the director would be able to set established minimum standards with employers. However, in parts of the Bill, the criminal aspect has shifted from the employer to the employee. What impact do you think that is likely to have?

Professor Metcalf: You mean on illegal working? I try, as chair of the Migration Advisory Committee, to stick to my knitting and do what we have done. Frankly, I have not thought about that very much. It is a matter for you, as the Committee, and for other people to decide what they think about illegal working.

Your point about employers is really important. I hope that the CBI, which is an excellent organisation— I know from my time on the Low Pay Commission how important the CBI was in ensuring that the minimum wage worked properly—buys into this. Occasionally, the CBI is rather hostile to regulation. In a sense, that rather surprises me, because the regulation that has been proposed here will help its members. It takes away the cowboys, as it were, and the people who do the undercutting. Therefore, your point about the effect on employers is very important. I hope that the CBI buys into this.

Q 39 What impact more generally do you feel illegal or poorly regulated workers’ protections have on the domestic, legal workforce?

Professor Metcalf: We went into that in some detail in the low-skilled report last year. It is interesting. When we went out to Wisbech and Peterborough and so on, the concerns were about the exploitation of the migrants. However, the people we spoke to were well seized of the consequences for British workers: possibly some displacement, although lots of times they would not actually want to do the jobs; and, for certain, downward pressure on the wages at the bottom end of the labour market. By properly regulating this aspect of the labour market—including immigrants and the British workforce—this will go a long way towards raising the welfare of British residents. I would have thought that this is something that we should all welcome. Our report was about immigrants, but it went into what the issue was doing to British residents. We did find evidence that it was undercutting wages. The measures will be very important to stop that.

Q 40 You described, in your evidence, the current regime as trivial in the sense of the likelihood of an intervention or a prosecution. You gave the figures of an intervention once every 250 years and a prosecution once every million years. We welcome, therefore, the director of labour market enforcement, because that provides an opportunity to bring a degree of oversight and strategic thinking. Obviously, reporting to the Home Office and to the Department for Business, Innovation and Skills is a welcome step in the right direction.

I know you have been tasked on resources a number of times. You clearly accepted that, the public finances being what they are, there may not be much by way of resources and suggested that increasing the sanction might do the same work. Is it not the reality that, with that level of intervention and prosecution, unless significant resources are put into the relevant agencies, the prospects of this raising beyond trivial to very much further up the scale are pretty limited? You can only do so much with the sentence, unless you are going to go way off the scale.

Professor Metcalf: Of course, I am exaggerating when I say once every 250 years for a visit. Of course, they will do it based on risk.

Q 41 It is targeted and intelligence-led.

Professor Metcalf: Yes. The director being the centrepiece of the intelligence hub will certainly help to ensure that the resources that are initially available to the three agencies will be used in a sensible and, I assume, most effective way. I am with you, Mr Starmer. I wish that more resources were devoted. I am not quite sure how much, but one of the roles of the new director will be to put pressure on the different arms of Government to provide more resources for this. I do not know at this stage how much more is needed to be able to increase the number of visits and inspections, albeit on the basis of risk.

Q 42 Ultimately, the pressure will have to be on the Government, because the agencies are likely to say, “We allocate our resources. We are happy to go along with the strategy but, ultimately, those are the resources we have. Therefore, we simply can’t up the number of inspections, and so on, in the way that might be strategically most advantageous.”

Professor Metcalf: Absolutely. The pressure will come via the director on to the different Ministries of Government and, ultimately, the Treasury.

Q 43 In headline terms, what do you see as the gaps? This is to co-ordinate a number of agencies, which is a good thing. What gaps are still being left?

Professor Metcalf: We need to consider where DWP, the local authorities and the Health and Safety Executive fit into the picture. They are the other main agencies and, for quite understandable reasons, they have not been included at this stage. We need to consider that.

As I have mentioned, given that we all know that we do not have the resources for enforcement, in the background we should be thinking about the penalties. If you think about the minimum wage, for example, although the penalties on the statute book are possibly large, employers are being fined only about £1,000 on average when HMRC takes them to court. These penalties do not seem to be sufficient to encourage firms that are behaving badly to obey the law.

Q 44 Given what you have just said about the importance of having the director, and taking on board the resource issue, where would you be expecting him or her to be focusing their energies in the first instance? Which sectors of the economy are most exposed to workers being exploited?

Professor Metcalf: That is an interesting and difficult question.

I know. That is why I asked it.

Professor Metcalf: There is good behaviour and bad behaviour in most sectors, but we know that hospitality is an area that is very much at risk. A lot of that is ethnic on ethnic. It is Chinese on Chinese, as it were, and Bangladeshi on Bangladeshi—I know that from the minimum wage. The big fiddles are on the hours of work—they grossly understate the hours of work to HMRC to make it look as if they are paying the minimum wage when they are not. Construction is quite a fruitful area. The reconstituted GLA will probably focus on those two sectors. In a sense, that is why I think having the director as the pivotal person for the intelligence—all those agencies know a lot about the sectors they have to get into—will help a lot. But my initial inclination would be to say construction and hospitality.

Q 45 Is a worker who does not have the right to work in this country—for example, a parent who is made destitute by this legislation—and who is being ruthlessly exploited, or physically or sexually abused, more or less likely to seek protection as a result of these provisions?

Professor Metcalf: I do not know all the details of the legislation, other than what I am talking about in terms of enforcement. I would hope that the director makes the enforcement issue more central to the labour market. If we enforce the minimum standards, a person in those circumstances would be more aware of the possibilities—often, particularly if they are migrants, they are not aware of them—and also more likely to go public. I would have thought that that would be quite a major component of the new director’s work. That basically follows up the question from earlier, because if you can stop the exploitation of the migrants, it is also helpful to British residents.

Q 46 Sir David, I imagine that you would agree that labour market exploitation takes place where gangmasters and those exploiting people can create a climate of fear and intimidation. You will be aware that in the States, for example, there is a clear protocol between the Department of Labour and the Department of Homeland Security on firewalls between immigration control and labour market enforcement, to ensure the effectiveness of labour market enforcement and to create a climate in which people can properly express concerns. Is it important that we have such a firewall in the UK?

Professor Metcalf: I have never thought about that. I would need to ponder that a little. In some senses, when we went out in Wisbech, for example, we thought that having a Home Office official and somebody from the Department for Work and Pensions doing national insurance, as well as some people from the local authority and a community policeman from Latvia who spoke Latvian—the issue was about Latvians—made for a very strong enforcement team. So I am not sure, on the ground, when you do major inspections like this, that the firewall would be completely helpful, but I have not thought through the issue. I understand what you are saying in terms of the machinery of Government, but I can see that, on the ground, it would actually be quite helpful to have the different bodies.

Q 47 Are you not concerned that those who are being exploited might be less willing to talk about their exploitation if they felt that that threatened their immigration status?

Professor Metcalf: No. I think that that would be the case. I mean, by and large, when we were dealing with this, we were dealing with A8 countries. But in terms of threatening immigration status, we do not want people to be exploited, but if their immigration status is that they should not be here, well, they should not be here.

Time is again catching us out, so I think this will be the last question. Mims Davies.

Q 48 You mentioned the construction and hospitality industries, in particular, as areas of illegal working—

Professor Metcalf: No, I did not say “illegal”.

Sorry if I misunderstood that—areas where there might be more exploitation. I am just wondering about the causes. Is that about a skills gap, or is it just pure exploitation?

Professor Metcalf: A lot of it is because those sectors have very low levels of unionisation, for example. Unions have costs and benefits, but one of the things they do is to try to enforce proper minimum standards. A lot of the work in construction is done on projects; in hospitality, there are so many workplaces that is possible for the employer to be almost never on the radar. There is a combination of reasons why those sectors are prone to commit exploitation and, to use your word, to do things that are basically illegal, certainly in terms of the minimum wage. If you were to go into Chinatown and check the immigration status of the people there and the way in which wages and hours are calculated on their payslips—to the extent that any of them have payslips—you would find huge possibilities for enforcement.

I am afraid that that brings us to the end of the time allocated for the Committee to ask questions. Thank you, Sir David. You have been an excellent witness.

Examination of Witnesses

Kevin Green, John Miley and Caroline Robinson gave evidence.

Q 49 We will now hear oral evidence from the Recruitment and Employment Confederation, the National Association of Licensing and Enforcement Officers, and Focus on Labour Exploitation. For this session, we only have until 11.25 am. I warn the witnesses not to be surprised if the Minister asks questions, because he is allowed to do that in this session. Will the witnesses please introduce themselves?

Kevin Green: I am Kevin Green, chief executive of the Recruitment and Employment Confederation.

Caroline Robinson: Caroline Robinson, director of policy at Focus on Labour Exploitation.

John Miley: John Miley, the national chair of the National Association of Licensing and Enforcement Officers and also licensing manager at Broxtowe Borough Council in Nottinghamshire.

Q 50 May I begin with the illegal working offences in the Bill, in particular the extension of an offence to employees as well as employers, and ask the panel how they think that will impact on the power relationship between an exploiting employer and exploited employees? Secondly, do the panel think it will have any impact on the confidence of employees to come forward? If criminal cases are to be brought, it is very important that those affected come forward and give an account, and possibly give evidence. Thirdly, do the panel think that there is any evidence that the employee offence is needed, given the other offences that are already in existence? Caroline Robinson, I think you particularly expressed some views on this.

Caroline Robinson: At FLEX, we think that the offence of illegal working is extremely dangerous, for three reasons. They relate to modern slavery, in particular, which is a key focus for our organisation and a major focus of this Government, who have set out to be a world leader in tackling modern slavery.

First, we think that people will be fearful of coming forward to be referred into the UK national referral mechanism as victims of trafficking. Only last week, we were working with a victim of trafficking who is currently in a situation of trafficking in the cleaning sector, but who has an undocumented status and is very fearful of coming into the national referral mechanism. The NRM provides 45 days’ support for victims of trafficking and a potential positive conclusive grounds decision that that person has been trafficked. If, however, they are unlucky and not found to be a victim of trafficking, for whatever reason—people are extremely fearful of that—now, under this offence, they might face 51 weeks in prison. That is the first reason.

The second reason is that we know that traffickers use the threat of deportation, removal and reporting to immigration officials in order to abuse and exploit workers. We are extremely worried about this offence, which you stated yourself is an addition to existing offences that people who have overstayed or entered the country undocumented would already face penalties for under the Immigration and Asylum Act. This offence, which serves a public relations function in terms of intensifying the hostility towards migrants, will be used by exploiters to intensify that hostility, to ensure that people remain in situations of exploitation and to threaten people with removal. We heard about a situation in the fishing industry recently in which a man was being abused and was living in extremely dangerous conditions. When he asked to have better conditions and living standards, the skipper called the Home Office, took him to port and reported him for removal. The conditions that people are living in and under which people are exploited are very much related to their immigration fears.

The third reason is something that was raised a lot on Second Reading, namely the criminalisation of trafficked persons. Although the Home Secretary set out the statutory defence, which is in the Modern Slavery Act 2015, it is quite narrow in its terms. The schedules exclude a number of offences for the victims of trafficking, such as aggravated criminal damage, but if I was to leave the building in which I was held I would no longer be covered by the statutory defence in the Modern Slavery Act.

We also know that people are in different types of situation in the UK. I was interviewing trafficked persons on Friday, and a woman I spoke to, who was in the national referral mechanism, was exploited when she first came to the UK. She then managed to escape that exploitative situation on her own, and entered into various undocumented working relationships. What would the situation be in relation to her? What would it be in relation to someone who was in an undocumented working relationship when they first entered the UK and was then exploited? How does this relate? We have a number of questions in relation to that and are deeply concerned. Given that, as you said, there are offences that relate to undocumented workers already, we think the measures are entirely unnecessary and very dangerous.

Q 51 We know migrants are quite knowledgeable—they are good about communication and about the details—so do you think that the knowledge that working in Britain would be illegal and a criminal offence might deter people and make it less likely that they would allow themselves to be trafficked in the first place? With that knowledge, they are less likely to come to this country.

Caroline Robinson: The question of whether migrants are knowledgeable about the different offence structures in the UK is an interesting one. I think a lot of myths circulate. There is a perception of marginalisation and that people are not on a par with British citizens in terms of rights. As for individual offences, and the fact that this offence is 51 weeks but the offence under the Immigration and Asylum Act is six months, I do not think that people are aware of that distinction. When you talk about imprisonment versus removal, there is certainly a fear of imprisonment among the trafficked persons that I talk to, and a real fear of officials. However, in terms of the level of detail, and this extra detail when going to countries outside the EEA area, and how that would have an impact, I think there is a distinction—

Q 52 You do not think that it might make people less vulnerable to being trafficked if they knew in advance that this was the legal situation in Britain?

Caroline Robinson: I have been working on the field of human trafficking for 11 years now. At international policy forums, the first thing that Governments are prepared to do is put money into awareness raising and huge prevention campaigns. This Government put £2 million into a widespread awareness campaign about the modern slavery hotline, which was great, and about modern slavery. A lot of effort goes into awareness raising about the threats and the dangers that people face, yet they still come.

Q 53 For clarity for the Committee, will the witness define what she means by trafficking? I thought trafficking meant people who were not aware and were tricked. What is your understanding of trafficking?

Caroline Robinson: Trafficking as defined in the UN human trafficking protocol involves the act, the means and the purpose, the act being to recruit, transfer or move someone into a situation, the means being to coerce, threaten or deceive and the purpose being exploitation of various forms. The act also includes harbouring, which is the retention of someone in a situation, so we and many eminent international legal scholars understand trafficking to mean when someone is held—through coercion, threat, deception—in a situation of exploitation. For our intents, and for many Governments, although not the English Government, trafficking is not a question of movement but of holding someone in that situation, and therefore trafficking could be a situation, as described on Channel 4 news last night, of Romanian workers held in an apple packing factory through threat, coercion and exploitation—not moved into the UK, but held in a harbouring situation, as set out in the UN human trafficking protocol.

That is very helpful. Rebecca Harris, did you have anything more to say on this?

We will go back to Keir Starmer, but I would like to hear from the other two witnesses as well.

Q 54 Can I go to the flipside of enforcement and look at protection? The role of the director of labour market enforcement has been widely welcomed, and rightly so. Most discussion so far has been about enforcement. Do the witnesses have views on the protective role of the director and whether the remit is wide enough?

Kevin Green: We certainly welcome the role. We think it will add value in terms of the whole data gathering co-ordination across Government. In terms of its role in protecting vulnerable adults, that is dependent on the resource and the way that it actually functions in reality. For us, extending the remit of the GLA in terms of it being able to investigate exploitation is important. That is welcome. I know that that is part of the consultation. Again, going to the last point, you have to be very careful about any kind of regulation for the victims of these offences, because a lot of the stuff that we see is criminal activity. A lot of legitimate businesses and recruitment agencies are infiltrated. Often, it is dependent on an individual worker being quite brave—being a whistleblower and flagging this up so that authority can be brought in. We need to be very careful that we do not demonise the people who are in vulnerable positions.

We welcome the development. We think it will move things forward. The level of protection is much more about the level of resource available across the breadth of activity that it will cover.

Caroline Robinson: I share that view about protection being linked to resources. We advocated strongly during the Modern Slavery Bill’s progress through Parliament for expanded remit and resources for the Gangmasters Licensing Authority and for an overarching labour market focus on inspection and enforcement. We welcomed the Prime Minister’s announcement on 21 May, and the measures in the Immigration Bill go some way to address that.

The point about the protective purpose of the director is very important. For us, the core purpose of that role should be the protection of vulnerable workers and the prevention of exploitation. That has been at the centre of the work of the Gangmasters Licensing Authority and has been part of its success. That authority, as we know, operates on a limited budget, so the resources are also of critical importance. On the role of the director of labour market enforcement and the labour market enforcement strategy, what most concerns us is the power of the director to hold control of the budgets, governance of those labour inspectorates and shifting budgets according to the strategy.

We know that the Gangmasters Licensing Authority is extremely stretched in its current remit and has done a great deal to ensure a level playing field in those core sectors in which it operates. If it is to be shifted into other sectors, we believe that the good work it has done in the existing sectors is under grave threat. This overarching role is a good thing, but it requires extra resources if any changes are to be made, and it definitely needs to have, as the core purpose of that role, the protection of workers and the prevention of exploitation.

John Miley: The ability of the agency to get involved in enforcement workers’ licensing is welcome. It will cut corners—that is not the right phrase. It will remove barriers for them in respect of enforcement. Currently they have to await police action for the licensing authority to attend. To be able to be a responsible authority—to be a responsible body under the Licensing Act 2003—will certainly improve that status for them.

Q 55 Caroline, I want to come back to you and the answer you gave to my colleague earlier. You said that you were not sure that illegal immigrants are aware of the rules and regulations around countries. Most people in the UK know that when you go abroad there is a huge perception in the wide world that Britain is a light touch.

I grew up in Australia and the children of a lot of my friends I grew up with have come to the UK and know full well that they can overstay their visas without too much hassle. We have 100,000 students who overstay their visa requirements. There are also the heritage cases we know about, and the traditional open-door policy. How can you say that you are not sure whether somebody coming to this country with the intention of being an illegal immigrant is not aware of the rules and regulations?

Caroline Robinson: I was talking about specific rules and regulations and whether the distinction between six months and 51 weeks would be transferred to someone in a village in Nigeria, for example. I am not sure that I agree about the light touch. Your case about Australia is interesting. I once arrived in India without a visa and the Indian officials allowed me to leave my passport at the airport and spend my time in India, and then to return and leave.

Q 56 We are not talking about India, we are talking about the United Kingdom and what has traditionally happened in this country. The general perception, throughout the world, not just Australia, is that we have traditionally been a light touch. That is among people who come and go just for holiday visas, for example. If you intend to come here as an illegal immigrant, surely you will have the knowledge that you can get away with far more than people who do not intend to do that in the first place.

Caroline Robinson: What I was suggesting was that it is quite a different situation for people from different countries. If you are on a holiday visa and are Australian and overstay, potentially that is a little bit different from arriving here from a country such as Nigeria and overstaying. The situation and the response might be different. That is part of what I was suggesting.

Q 57 You do not think that the UK has been a light touch, then.

Caroline Robinson: We have had a raft of immigration legislation over many years, with controls and responses. I am not sure whether that means that people think the more immigration legislation that we have, the more of a light touch people perceive us to be. Then perhaps there is a problem with the legislation, I do not know.

Q 58 Leading on from Mr Whittaker’s question, do any of the panel believe that clause 8, the offence of illegal working, will have any impact on people illegally coming to this country?

John Miley: I am not sure. In terms of licensing, I am not sure there would be any particular effect at all, I have to say. I am not sure that there is a major problem in licensed premises; maybe more so in late-night takeaways and off-licences. I do not perceive that to affect it at all.

Q 59 Does anyone on the panel think that clause 8 will prevent illegal workers coming into the country?

Caroline Robinson: What we think will prevent people from working here undocumented is to reduce the demand for undocumented workers. To do that, we require enforcement of labour standards across the board. To be clear, the demand for undocumented workers is not because employers prefer undocumented over documented workers; it is because they cannot pay documented workers below minimum wage as easily as they can undocumented workers. They still try, and as I mentioned, Channel 4’s investigation last night showed Romanian workers being paid below minimum wage and being treated in substandard conditions, because they were under the perception that they were not entitled to the same rights as British citizens.

We know that 78% of those exploited for their labour are, in fact, documented in the UK. So the reduction in demand for undocumented labour through the enforcement of labour standards by this director of labour market enforcement is welcome, but to do that we need a labour inspectorate that is level with other labour inspectorates across the EU. To have just 0.8 inspectors per 100,000 workers at the moment leaves us quite open to abuse. We just heard from the Migration Advisory Committee, which said in its report last year on low-skilled migration that there is just one inspection by the HMRC national minimum wage inspectorate per 250 years for employers. The frequency of inspections is certainly an incentive for employers to employ undocumented workers, as the fear of being caught is low.

Q 60 My personal feeling is that clause 8 is a show pony for the Daily Mail. It will not actually make any difference to people coming into the country to work illegally. However, what is your opinion of clause 9? Do you think that it goes far enough to put the onus on employers to not employ people illegally and not exploit workers?

Kevin Green: I gave evidence to the Modern Slavery Bill Committee when that legislation was going through. One thing that is quite important is that large businesses manage their supply chains effectively and are held to account. We recognise that there was some movement towards that in the legislation, and the anti-slavery commissioner clearly has a remit to look at that. We do not think that that has gone far enough. We think that large employers, such as supermarkets, need to be very aware of what is happening throughout their supply chain and should be held to account. That is much more likely to deliver results, along with strong enforcement, than creating more legislation and regulation that is not enforced.

Q 61 Specifically, previous witnesses have spoken about takeaways and the construction industry, which would be small employers. Does clause 9 go far enough to prevent that exploitation?

Kevin Green: It is helpful, but I am not sure that it goes far enough. Think about how the supply chain works for the construction industry, with multiple small organisations working into a large developer. Hold the large developer to account, make them accountable for what activity happens in their supply chain, and I think you will drive out a lot of the bad practice that we are hearing about.

Q 62 Mr Miley, as a licensing officer, does this give you enough to go on to stop illegal practice, or would you like to see more in there?

John Miley: I think it helps. I am quite keen to ensure that the licensing authorities are not given some sort of role in this in respect of being responsible. If we are making checks on certain documentation, I do not want us to be part of the problem. If something happens and we miss a check, we do not want to be responsible for it. It is important that owners and employers are responsible. It certainly gives the enforcement agencies the opportunity to take proper action against them.

Q 63 Caroline, you mentioned the extent of harbouring. You talked about the Romanian case on Channel 4. What is the extent of this, and what is the evidence?

Caroline Robinson: Of people being harboured in situations of exploitation?

Yes.

Caroline Robinson: The evidence from the National Crime Agency statistics shows the range and scale of the exploitation referred into the national referral mechanism. The scientific adviser’s report to the Home Office was published last year, and estimated that there are 13,000 victims of modern slavery in the UK. If we go by the NRM stats, one third of those would be victims of labour exploitation—about 4,300 victims of labour exploitation in the UK. Those are the statistics.

Q 64 What would your definition of harbouring be, out of interest?

Caroline Robinson: Harbouring was placed on the UN human trafficking protocol by the Americans at the time of the travaux préparatoires to the protocol. It was based on the definition of harbouring in US domestic law, which is about retaining individuals in a situation—keeping people in a situation and harbouring in the same situation.

Q 65 I am keen to ensure that we learn from other countries, and I am interested to know what the panel thinks we can learn from them about effective labour market enforcement. In particular, I am interested in the line of questioning that I was pursuing earlier, which was about the relationship between immigration officers and labour market enforcement regimes. For example, in the States there are clear firewalls, which the Americans think enhance effective labour market enforcement.

John Miley: I have no view on that, I am afraid.

Caroline Robinson: FLEX has just conducted a review of other countries’ labour inspection frameworks, and we have also been looking at research; we have been conducting research as part of a pan-European project on improved identification of victims of modern slavery. That research in particular showed an interesting finding in the Netherlands, which we had previously held up as a great example of labour inspection; it has a very large labour inspectorate and has conducted work in this area in the past. However, the victims of trafficking we spoke to there said that the confused mandate of the SZW inspectorate caused problems on the ground, so that they were unwilling to come forward. That is because the inspectorate serves two functions: one, to identify undocumented workers; and, two, to identify exploitation.

The concern in our research then was that the people we had spoken to had not come forward to be identified by inspectors at the time of inspection, because of the overlap they saw between the inspectorate and the aliens police, which often conduct joint investigations; and the inspectorate has an overlapping mandate.

We are also concerned that where this overlapping mandate exists, it is quite hard to look for two things at the same time. We have our own example of that in the UK. We have the case R v. Khan, Khan and Khan, from 2010, about nine men who were held in in a restaurant by the Khan family in a situation of trafficking for labour exploitation. Those men were there for four years in situations of exploitation before they were discovered and before those perpetrators were convicted of trafficking. During that time, the judge’s report from the court said, there were regular inspections by Home Office officials. So the documents were in order, but the labour exploitation was not; those people were being held and trafficked for labour exploitation, yet regular Home Office inspections identified nothing. Eventually, they were able to seek help from family members or friends to leave that situation.

Kevin Green: Our take on it is that we are part of a global organisation of recruitment businesses called Staffing Industry Analysts. We recognise the need for strong labour enforcement, and there are lots of examples of where it works well.

One area that we would certainly flag up, and where we need to be careful, is in putting too much of an onus on business to address this issue through some kind of licensing regime. We have looked internationally and we cannot find any example of where we think this adds a huge amount of value. We think that a lot of this activity is about criminal activity, where people are trafficked and in forced labour.

We are very clear that the role is, first, to hold large organisations to account, as I have already talked about, through supply chain management, and, secondly, to have a strong inspectorate, which has the resources to investigate and bring people to bear, rather than creating a huge bureaucracy for a lot of legitimate businesses, where there is more responsibility to produce evidence, and which would add cost and complexity to legitimate businesses. What we are really doing here is trying to find the people who are undertaking this activity of forced labour and human trafficking.

I am aware that time is getting on, and I also have quite a few Members who still want to ask questions. Undoubtedly, we could talk for a long time about the trafficking issue, but we will move on.

Minister, would you like to ask a question?

Q 66 I want to ask Mr Miley, who has expertise and experience in licensing, how he thinks the powers contemplated in the Bill could strengthen existing enforcement around standards in the licensing process, and who should be holding licences. Also, I would like to know about his experience of using closure notices, and some of those short-term measures that are currently reflected in licensing legislation and are now being contemplated in a broader sphere.

John Miley: To answer the last question first, my authority has had no particular experience of using a closure notice. We have come close to it, but we tend to try to negotiate issues out before such things has happen. It is good that the proposals reflect the current practices under the Licensing Act 2003, which will make life a lot easier for licensing authorities to utilise the situation. There is the potential for reviews of a premise’s licence if a closure notice is actually turned into a closure order, which would be quite useful.

As for general enforcement, it is difficult to quantify the real issues relating to illegal working in licensed premises. As I said before, there is the possibility that that happens in late-night refreshment houses. In ordinary licensed premises, such as public houses and restaurants, that does not tend to be the case. It also seems that the national fraud initiative has not discovered much in the way of that in the past year. It has found more in the taxi trade, which I understand will be dealt with later in an amendment to the Bill.

The Bill will give the immigration agency the ability to undertake risk-based inspections and actions without needing to get the police involved, which happens currently. I am unsure whether it will improve standards. I suspect that if people can get away with it, they will continue until they are caught. An example then needs to be made and the employer needs to be properly castigated.

Q 67 Do you have any comments on intelligence sharing and joint working with other agencies to support the work of local authorities?

John Miley: It is to be commended. Generally speaking, licensing authorities do not work in silos. They work in the broader scheme of things, and work with the police and the Security Industry Authority and more generally with immigration. Good work is currently going on in quite a lot of cases. We do an awful lot of partnership working. In fact, it is one of the cornerstones of the licensing procedures that we consult and gather information among ourselves. In Nottinghamshire, all the responsible authorities meet every six weeks. That will include the immigration authority when the Bill is passed. It is a useful evidence and information gathering and sharing process.

Q 68 I want to explore a little more around employers who are repeat offenders. I have witnessed examples of activity from smaller businesses that have caused concern. Does clause 9 go far enough to prevent such businesses, once caught, from doing it again? Is it enough to stop people who have already caused concern for agencies?

John Miley: In terms of licensing, if enforcement action is taken and it goes to its full conclusion, there is the possibility of closing the premises down. That is quite a strong penalty, so it would potentially have the effect of stopping it.

Kevin Green: Certainly, in terms of the recruitment industry, the conduct regulations and the enforcement in BIS are pretty clear. If people are found guilty, they can be struck off or prosecuted. We actually see few examples of repeat offences.

Q 69 I have been made aware that fines sometimes—

Kevin Green: In relation to what example? I am not quite sure what we are talking about.

Q 70 Undocumented workers. It has not always reached a full conclusion, so there has perhaps been a view that the penalties are not stiff enough. That is why I am interested to know whether this measure is enough finally to stop people taking those decisions and using undocumented workers.

Kevin Green: My take is that we have to be very careful. There are lots of businesses, and we look at national minimum wage breaches. There are only two cases that have involved recruiters, and they were just miscalculations. Such businesses should be held to account to make sure that they put it right, and then we move on. There is a difference in holding businesses to account. Sometimes small businesses without the resource might make mistakes, and we still need to hold them to account. There is lots of regulation already in place to do that. I think some clarity about that and resource for enforcement are important, but that is very different from somebody who is actually bringing people, harbouring people—what I would call human trafficking. That is criminal activity, and we need strong clarity about the potential punishment, the right level of resource and the right level of intelligence gathering across the different agencies, where this is moving in the right direction.

One of the things that we have uncovered is that, when they find criminal activity, lots of my members will provide examples and identify areas to the GLA where they think they have been infiltrated or where they see information, bank details and telephone numbers being given from one employer—they will then whistleblow to the GLA. Those legitimate businesses need to be sure that, by whistleblowing, they are actually helping to resolve the issue. Resource for the GLA is critical in moving this forward. They need the resource to go after the people who are carrying out real exploitation so that we do not mix them up with small businesses that make the odd mistake along the way.

Q 71 I want to take Ms Robinson back to her point about defences under the Modern Slavery Act 2015, in which I take a great interest—I sat on the Public Bill Committee. I have that Act and the Criminal Damage Act 1971 in front of me because she made a specific reference to that defence. As I understand it, the defence supplied in the 2015 Act in relation to criminal damage specifically excludes criminal damage with the intent to endanger another person’s life, so it is a rather more specialist case than she might have suggested. Secondly, on Second Reading of this Bill, the Home Secretary was very clear that all those defences will continue to apply. Will Ms Robinson explain her view?

Caroline Robinson: All those defences will continue to apply. What do you mean?

Q 72 The Home Secretary said that those defences will continue to apply. I thought I heard you say earlier that the defences will not apply; the Home Secretary says that they will.

Caroline Robinson: In relation to the Immigration Bill?

Yes.

Caroline Robinson: Sorry, I was thinking about Second Reading of the Modern Slavery Act. Yes, she did say that, which is why I said it will be very interesting for organisations such as mine, and many others, as part of the Anti-Trafficking Monitoring Group to know for sure what would be the situation in the case I set out in which there is a series of events in a person’s stay in the UK. They might be exploited when they arrive and then they escape that exploitation on their own—that happens many times, including to a woman I spoke to last week—before entering undocumented work.

Secondly, what would be the situation if I was in undocumented work when I arrived in the UK and then that work deteriorated to the point of exploitation, as we know is a regular pattern in exploitative working conditions? What would happen there? Would I be offending for that work at the beginning, or would the modern slavery defence, if proved, counter that previous work? Those are the questions that remain for us. It would be brilliant to have expanded detail on that in Committee.

Q 73 I want to pick up with Mr Green, and perhaps Mr Miley, how the Bill intends to improve the market regulation and enforcement of workers’ protections. Why has such a culture built up in certain sectors, and how have we allowed that? Does what is in front of you work for that culture to be broken down?

Kevin Green: In terms of exploitation in certain key industrial sectors?

Yes.

Kevin Green: What we need—and many people have said this consistently—is the ability to share intelligence across multiple agencies. I think that the director of labour market enforcement is a step in the right direction. Points were made earlier—for instance, how we bring in the Health and Safety Executive and local authorities, because they are going into premises on a regular basis. Over time, that should be extended. Once there is intelligence gathering, it is about the right enforcement regime to tackle that. So, where it is potentially a minor breach, through something like the conduct regulations—there I think we have the right enforcement in place. Sometimes you really need detailed police investigations to crack a criminal activity that has been very exploitative. I think this is a step in the right direction. The additional offences, apart from the one for individuals, are probably helpful. So my answer is that I think it will be helpful in addressing some of that; but, again—as I have said consistently today—it is about the level of enforcement activity. It is very rare for us to agree with the TUC, but—

Order. I am really sorry. I am afraid that that brings us to the end of the time allocated to ask questions. Again, I thank the excellent witnesses; we could have spent a lot longer on this.

On a point of order, Mr Bone. This afternoon we move to witnesses who deal with the landlord and renting provisions in the Bill. In an answer given orally last week, there was an assurance that the evaluation for the west midlands pilot of the scheme would be available before the Bill Committee. Since we are getting to that witness this afternoon, where is the evaluation? I would certainly benefit from reading it before I start my questioning at 3 o’clock.

I thank the hon. and learned Member for the point of order. I will certainly make inquiries where necessary—unless the Minister wants to say anything.

I can say that, as Members may have noticed, there is a written ministerial statement on the Order Paper in relation to the right to rent scheme roll-out more generally. Alongside that, the evaluation is being published. I suspect—and can certainly talk to hon. Members outside the Committee as well—that the evaluation will be available on gov.uk well in advance of our considerations this afternoon.

That brings us to the end of the sitting. Thank you again to the witnesses; you have the message. The Committee will meet again at 2 pm.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.

Immigration Bill (Second sitting)

The Committee consisted of the following Members:

Chairs: Mr Peter Bone, † Albert Owen

† Blomfield, Paul (Sheffield Central) (Lab)

† Brokenshire, James (Minister for Immigration)

† Buckland, Robert (Solicitor General)

† Champion, Sarah (Rotherham) (Lab)

† Davies, Byron (Gower) (Con)

† Davies, Mims (Eastleigh) (Con)

† Elphicke, Charlie (Lord Commissioner of Her Majesty's Treasury)

† Harris, Rebecca (Castle Point) (Con)

† Hayman, Sue (Workington) (Lab)

† Hoare, Simon (North Dorset) (Con)

† Hollern, Kate (Blackburn) (Lab)

† Lewell-Buck, Mrs Emma (South Shields) (Lab)

† McLaughlin, Anne (Glasgow North East) (SNP)

† Newlands, Gavin (Paisley and Renfrewshire North) (SNP)

† Smith, Chloe (Norwich North) (Con)

† Starmer, Keir (Holborn and St Pancras) (Lab)

† Tolhurst, Kelly (Rochester and Strood) (Con)

† Whittaker, Craig (Calder Valley) (Con)

Marek Kubala, Joanna Welham, Committee Clerks

† attended the Committee

Witnesses

Neil Carberry, Director of Employment and Skills, CBI

Lord Green of Deddington, Chair, Migration Watch UK

Harry Mitchell QC, Migration Watch UK

Ms Alanna Thomas, Migration Watch UK

Richard Lambert, Chief Executive, National Landlords Association

Eric Leenders, Executive Director for Retail Banking, British Bankers Association

David Smith, Policy Director, Residential Landlords Association

David Snelling, Chief Superintendent, Sutton Borough, Metropolitan Police

Stephen Gabriel, Strategic Manager, Homes and Communities, Sandwell Metropolitan Borough Council

Ilona Pinter, Policy Adviser, The Children’s Society (also representing the Refugee Children’s Consortium)

Kamena Dorling, Policy and Programmes Manager, Coram Children’s Legal Centre (also representing the

Refugee Children’s Consortium)

Adrian Matthews, Principal Policy Adviser (Asylum and Immigration), Office of the Children’s Commissioner

Public Bill Committee

Tuesday 20 October 2015

(Afternoon)

[Albert Owen in the Chair]

Immigration Bill

Examination of Witness

Neil Carberry gave evidence.

We now move to the fourth panel of witnesses and will hear oral evidence from the CBI until 2.30 pm. May we informally refer to you as Neil?

Neil Carberry: Absolutely.

Q 7474 Neil, may I ask you to introduce yourself for the record?

Neil Carberry: Yes. I am Neil Carberry, the CBI’s director for employment skills and public services. For the record, I should say that I am a member of the Low Pay Commission and the council of ACAS, but all my comments today will be made purely in a CBI capacity.

Q 75 Neil, thank you for coming to give evidence this afternoon. This is one of the rare occasions when I, as the Minister, get to ask some questions, so there is nothing unusual in this. On labour market enforcement, Sir David Metcalf, head of the Migration Advisory Committee, gave evidence to the Committee earlier today and commented that he hoped that the CBI would buy into the labour market enforcement director mechanism contained in the Bill. He was essentially extolling it and suggesting that the CBI should welcome it. In fairness to you, I want to put his perspective to you so that you can respond.

Neil Carberry: Ever since I was a student in the London School of Economics industrial relations department and Professor Metcalf was there, I have tried to keep him happy. The CBI’s attitude to the labour market section of this Bill is probably a good place to start. We are interested in driving out some of the appalling practices that exist in parts of our labour market. It has always been the view of CBI members that empowering enforcement officers to kick a few doors down and bring some bad guys to justice is the right thing to do. To do that effectively, you need a risk-based, intelligence-led approach. To the extent that any Government of any political colour take that up, the CBI will be supportive.

In a sense, our attitude to the labour market enforcement director is that if that is what is on the cards here, we will support that work. It is important that we ensure that people who are not able to raise their own concerns, because of the situation that they find themselves in, have some method of support from state enforcement. The labour market director will hopefully do that. Our concern is whether that work will topple too far into what we have perhaps seen in the past: tick-box approaches that actually fall more heavily on the compliant than on the non-compliant, who we would all agree need enforcement action.

Q 76 So your call is for smart enforcement, using intelligence and drawing together all the different strands of information to target more rigorously the non-compliant.

Neil Carberry: I think that is right. My understanding of the role of the director as we have seen it so far is that this individual will work across agencies. It is important that this change does not draw agencies’ attention away from their work. HMRC is still investigating every national minimum wage complaint that it hears and has also started to do some excellent intelligence-based, targeted work in key sectors. The introduction of the director will hopefully improve interaction with other authorities, but will not draw funding and work away from protecting people in areas such as payment of the national minimum wage.

Q 77 What is the CBI’s current assessment of labour market exploitation and non-payment of the minimum wage? How does your organisation seek to challenge that? In parallel with the Bill’s provisions, what role do you see the CBI playing?

Neil Carberry: Broadly, our view is that compliance with employment law in the United Kingdom is good. Largely, non-compliance is inadvertent and we have excellent systems to allow people to raise their concerns about that. There are parts of the labour market—where, I am glad to say, CBI members tend not to be found—which are more open to abuse, where there are more interlinks with people trafficking, for instance, and which are not easily policed by traditional labour market means because these companies are not traditional companies.

Q 78 And are you looking at particular sectors, or is that a more general comment about the labour market?

Neil Carberry: I would think that it clusters in three or four particular sectors, yes.

Q 80 I look forward to serving under your chairmanship, Mr Owen. Mr Carberry, offences are already specified in the Immigration Act 1971 that are applicable to migrants who breach their immigration conditions. Do you believe that clause 8, which creates the new criminal offence of illegal working, is necessary, and do you think that it may have unintended consequences?

Neil Carberry: What we are particularly concerned about is that any criminal offence is genuinely used to go after criminal activity. Employment law offences are typically civil offences. As I have already said, breaches are largely inadvertent, or if they are not inadvertent they are due to lack of understanding on the part of an employer. The right place to police that is through education, the tribunal system, the advice that ACAS offers and so forth. I am not a criminal lawyer. To the extent that the offence that has been created is to be used to go after employers where there is repeated, multi-faceted and exploitative treatment of workers, we are very happy for that offence to exist, so long as the businesses that are brought to justice are engaged in those steps. What worries us particularly is not the existence of the offence but the risk that there may be a general drift of employment law in the United Kingdom from the civil to the criminal, because that would be quite destructive for employee relations in general.

Q 81 Just to unpick that, do you think that actually criminalising the workers is useful in changing practice?

Neil Carberry: I think that the critical issue is the action by employers. The CBI is not taking a position on criminalisation of workers; that is not within our vires as a business organisation.

Q 82 I agree that if employers are employing people illegally, they should be accountable for that. Do you feel that the Bill goes far enough to enable that to be enforced?

Neil Carberry: I think that the critical issue is not the law in this case; it is the will to go after some of the very worst practices in the UK labour market. It is about co-operation between the police and other authorities in getting into some of these beds in sheds places and taking action. One of the lessons we have to learn from the experiment with the Gangmasters Licensing Authority is that the GLA has largely been a box-ticking licensing organisation that has increased costs on the compliant. There is relatively little evidence that the creation of a registration approach has actually done anything to prevent exploitation. From a CBI perspective, we would far rather that the Government had a strong offence, structured in a way that would stack up in the courts, and then used powers of prohibition, for instance, to drive out bad practice. Of course, that is what we had before the GLA was brought into existence—albeit that they were not heavily or effectively used.

Q 83 Finally, do you believe that the director has the remit and the resources to prevent this from being a box-ticking exercise? Would they have the authority to make the necessary changes?

Neil Carberry: That remains to be seen. The director clearly has to develop an enforcement plan, which has to be approved by the Home Secretary and the Secretary of State for Business, Innovation and Skills. I would hope that that enforcement plan was well grounded in the effective work that some of the agencies are currently doing and would therefore be resourceable from within that. I had discussions last week with the HMRC team who are looking at non-compliance with the minimum wage; they feel that they currently have the resources to continue the good work they are doing.

Q 84 I want to turn back to the evidence given to us this morning by Professor Sir David Metcalf. When he was discussing the CBI, he said that the regulation of the labour market proposed in the Bill would take away the cowboys and help your sector. He went on to say that it would go a long way towards raising the welfare of British residents. Do you think he has applied a risk-based, intelligent approach to his assessment?

Neil Carberry: I think the proof of the pudding is in the eating when it comes to the director. On the existence of a labour market director to do this work, his assessment could well be the case. What worries us is less what is in the Bill as introduced than some of the discussion in the Government’s consultation paper last week, which seems to suggest a broadening of a licensing approach. I think that would ultimately be a doubling up regulation on the compliant and would draw away from kicking down the doors of the non-compliant. From our perspective, there is every chance that the labour market director’s role could be very beneficial to lawful companies and workers.

Q 85 On the face of the Bill then, it is a good thing.

Neil Carberry: Yes, I think so. We have never been against effective enforcement.

Q 86 You talked about parts of the labour market where abuse happens. I am conscious that many of your members might have had their reputations tarnished by unwitting involvement through supply chains. Can you share your thoughts about the Bill in the context of the most effective way of helping your members to achieve supply chain compliance?

Neil Carberry: Any answer to that question will have to take account of some of the responsibilities that companies will take on under the Modern Slavery Act 2015. I actually had a long discussion last night with some of our members about the challenges of doing that effectively—many of them are currently wrestling with that. Of course, there is a limit to what companies at one end of a supply chain can do and assure themselves of, but there is a duty to do some work, as the Act makes clear.

The most important thing is to ensure that, where companies at the top end of a supply chain suspect that something illegal is happening, they are clear about the route to take to obtain assistance from regulators and enforcers, and also that there are simple routes for enforcers to take towards targeted action. We would see that as one part of the role of the director as set out in the Bill. For instance, we would expect them to look to establish ways in which a major retailor could raise concerns effectively and then feed into an intelligence-led action.

Q 87 You mentioned a situation in which companies at the top end of a supply chain have reason to believe that things are going wrong further down the supply chain, but the problem faced by many of your members is that it might be impossible to know what happens further down the supply chain. What more could be done to achieve effective enforcement of labour market standards down the supply chain and out of the sight of your members?

Neil Carberry: Clearly, it largely is out of the sight of our members. I will start from the test of what we want, which is something that brings an enforcement officer into the site where things are going wrong as quickly and effectively as possible, with the powers to change the situation. We know that, largely, where we find national minimum wage non-compliance, we tend to find immigration non-compliance.

The first thing is to make sure that, whichever body is resourced to do it, there is a clear thought process about where we believe this is happening in the labour market; within that, then, that there is some intelligence-gathering about where the issues might be. There should then be live discussions with businesses in the sector about what they hear and what they see; then, police and enforcement agencies should have the capacity to intervene. That much more targeted approach, I think, is the only way to protect workers who do not have the capacity to raise concerns about their own treatment, especially if they are being exploited. I would much rather see that intelligence-led, almost police-style action than anything that looks like a process for companies in the sector, because I think that some of these non-compliant organisations would just ignore that.

Q 88 Do you think that there are sufficient resources, as the situation currently stands, to achieve the objectives you are talking about?

Neil Carberry: I mentioned HMRC’s rule earlier. I think to do it effectively, it may be necessary to look at resources for other parts of the system. Having said that, one of our biggest challenges at the moment is enforcement agencies talking to each other. A case in point is that if a business moved out of a GLA-regulated sector, the employment agency standards inspectorate would still have prohibition powers. There should be more discussion taking place about, “If this business has had a licence removed by the GLA, what is the case for prohibition more broadly via EASI?”

Q 89 Good afternoon. Do you think there is a risk of the Bill making it harder for migrant workers to access the labour market because employers are afraid that they will be breaking the law, and don’t understand how it works, so they err on the side of caution?

Neil Carberry: I think the section 8 checks that employers already do are largely embedded in companies’ operation now, so the mere existence of a non-UK passport at hiring is an issue. There is some nervousness, I think, about the fact that the quality of forgery is now very, very high, and I think businesses would welcome more support from UKBF and others on identifying forgeries when they do those checks. Broadly, we have not seen evidence of a chill effect on migrants being able to find work yet, and the performance of the UK labour market over several years now suggests that opportunities are still being created both for UK citizens and migrant workers.

Q 90 Would the CBI be willing to keep an eye on that? In my constituency, I have already had people coming to me who have been offered jobs and then the employers—and it is large employers—have backed off, saying that they want actual evidence; phoning the hotline is not evidence for them. I wonder whether the reason why I am getting quite a few people coming to me now is that they know that the legislation is going to change; it would be interesting to see if there was an effect once this came in.

Neil Carberry: I think the necessity of assurance for companies in hiring migrants becomes greater as the cost of getting it wrong becomes greater. I have been working on employment relations issues for the CBI for over a decade now, and the process is that every year it becomes more costly to hire migrants and more risky for companies. Particularly for some smaller and medium-sized companies, there is a concern there, and support structures for businesses are quite important.

Q 91 I would like to ask about the role of the director, in terms of vulnerable workers, and more broadly whether that role could help the Government’s agenda of redressing the balance on equality issues and addressing the gender pay gap, so as to shine a broader light on these employment issues.

Neil Carberry: I refer to my earlier answer. It is really important that we keep the exploitation agenda—there is deeply unsavoury activity taking place in parts of the labour market—separate from the civil employment law agenda. If you look at the gender pay gap, Ruby McGregor-Smith’s Women’s Business Council report concluded that it is a multi-faceted issue that requires a series of actions, primarily from business but also from the education system, to address. We would be more comfortable continuing to do that work in partnership with the Government Equalities Office, Ministers and the new Select Committee on Women and Equalities, than getting too drawn into a debate, as we have already discussed, about beds and sheds and some pretty exploitative practice.

Q 92 So you see them as clearly separate issues.

Neil Carberry: Where I would say there is some equalities benefit is that it is certainly true that minority ethnic workers and many women are more at risk of the kind of treatment that we are discussing.

Q 93 That is my feeling, and I am on the Women and Equalities Committee, hence why I asked that question. I hear what you say, but it worries me if we completely disconnect the two.

Neil Carberry: No, this action clearly has equalities benefits.

Q 94 Fantastic. Are you also able to expand on the CBI’s concerns about the apprenticeships levy? It is obviously the Government’s ambition to see apprenticeships grow. Will the levy affect your members, or the immigration skills charge? What is the impact that you see on businesses?

Neil Carberry: Apprenticeship levies are quite complex at the moment because there are two of them. They have become known in the CBI’s employment team as the big levy and the little levy. There is the large apprenticeship funding model levy, which is a deep concern for the CBI.

On the question of the skills charge, although we do not welcome additional costs, we fundamentally disagree with the idea that immigration is used to resolve skills issues and to avoid training, because companies in the UK do extensive amounts of training—more than many other large western European competitors in terms of spending.

Having said that, if there is to be a skills charge, we need to make sure that it is effectively targeted, so that the money raised does go into apprenticeships that are training people towards the levels of skills that people who came in on a visa were helping to resolve the shortage of. More broadly, it is probably preferable to us that these charges exist than that we make changes to the pay bands for tier 2 migration. Additional cost for a visa is one thing, but being unable to get a person you need at any given point because of changes to the pay bands is more of a business problem. For us, in the grand scheme of things, although we do not like it, we would rather have an immigration skills charge than a much higher entry level of pay to bring people in.

Q 95 In trying to target action against criminals who exploit workers, which is something we can all agree on, do you think the Bill blurs the lines between employment law and criminal activity?

Neil Carberry: I think that is a significant risk, less so around the role of the director than the recent discussion about expanding the role of the Gangmasters Licensing Authority. The role of the GLA so far has largely been an employment process. Since its creation the GLA has spent rather more time telling my members where the commas should be in employment contracts, which is an employment issue, than kicking down doors in parts of the country where doors need to be kicked down.

My sense is that we need to maintain that gap, for exactly the reasons that your colleague raised earlier, which are that employment law is a civil issue; most of its infraction is inadvertent or due to lack of knowledge, so it is really important that people are able to address that—there are routes for people to address that—and it is about the bit of the labour market where workers are not able to secure their rights, which should be at issue in the Bill. The CBI’s test for this Bill, in practice, when it finishes its passage, is to make sure that the actions contained within it are about addressing those issues of exploitation.

Q 96 Do you think that it should be employers’ or the Government’s responsibility to prevent illegal working, especially given the move away from civil penalties to criminal charges?

Neil Carberry: I think employers should have a duty to ensure that their workforce have the right to work in the United Kingdom—that is probably accepted by our members—at the point of hiring. The issues that we have often faced are issues of establishing that fact in a timely fashion.

Q 97 Just to come back on that last question, what is your assessment of the level of knowledge among your members, recognising that part of the role of the labour market enforcement strategy, which the director will obviously have a key role in developing, is to focus on advice to the Secretary of State about education and training? What further steps, in practice, should be undertaken around that, and what about the role of the director in that piece?

Neil Carberry: There is an analogy here, slightly oddly, with the process of automatic enrolment in pension schemes. The Pensions Regulator for many years dealt with some very large companies, which had large defined-benefit pension schemes, kind of knew what they were doing and spent a lot of money on compliance. In many of our largest members, immigration compliance is a million pound a year commitment, because of the scale of it and the reputational risks that we have already discussed. We live in a world in which company size is gradually getting smaller, and has been for 20 or 25 years; the majority of firms are small businesses, and the majority of our members at the CBI are small businesses, often with limited HR capacity. The transition that, for instance, the Pensions Regulator had to make to talking to businesses that had never even heard of it and offering support—it is still struggling to get that right now, but progress is being made—is exactly the same transition that we need to make in this space. It really is helping smaller businesses to understand their duties and the support on offer to them that will be critical to making sure that illegal working action is effective.

Q 98 So I suppose in other words, to draw out another comment in Committee this afternoon, you are suggesting that the focus on that awareness should be at the smaller business end, the SME end, and on the some of the challenges that might reside there. Equally, I am assuming that you would not say that the larger firms themselves have no potential issues, given the supply chain elements touched on previously—who your sub-sub-contractor is, who is on a building site or has been contracted into a particular job—and the need for alertness around those sorts of elements, from a reputational as well as a legal perspective.

Just before you answer that, we have a couple of minutes. Will any other Member wish to ask a question in that short time? No. Neil.

Neil Carberry: I agree with that. We talked earlier about the capacity of a firm to know whether it was dealing with partners who are compliant. What I would point to is that in this space we should not look for answers that look easy in Westminster but are actually ineffective on the ground. Experience with, for instance, licensing models—we are concerned about the potential for part of the Bill to create the space for the Secretary of State to dial up or dial down the extent of licensing models—is that licensing itself does not actually give a company any assurance that the licensee is compliant or not. The record of the GLA in taking away licences shows that firms behaving improperly were licensed. It is much, much better to have rigorous enforcement, intelligence-led, and then high-quality advice and support for companies that are taking action under the Modern Slavery Act 2015.

Q 99 Okay. We are coming to the end, so if there are no further questions I will thank our witness for giving evidence today. If there is any other information that you would like to give to the Committee, please feel free to write in.

Neil Carberry: We are aware that we have not yet given you a written submission, but colleagues are preparing one that will arrive in due course.

We look forward to receiving that. Thank you very much.

Examination of Witnesses

Lord Green of Deddington KCMG, Harry Mitchell, QC and Alanna Thomas gave evidence.

Q 100 Good afternoon. We now move on to the fifth panel of witnesses and we are to hear oral evidence from Migration Watch UK. To remind everyone, this session will finish at 3 pm. Can I call on the witnesses to introduce themselves?

Lord Green of Deddington: I have been chairman of Migration Watch UK, which I think it is quite well known to the Committee, for the last 15 years. Harry Mitchell, QC, is my honorary legal adviser and Alanna Thomas has done a huge amount of work on the Bill.

Q 101 Thank you all for coming today. Lord Green, to give us some context, what is your estimate of the current size of the irregular migrant population in the UK?

Lord Green of Deddington: Yes, I am very glad to offer you some context, because I think we really have to see the Bill in the wider context. We realise that there are already 11 Acts of Parliament dealing with immigration and that there is a handbook of immigration law of nearly 2,000 pages. So we have that in mind, but, even so, the Bill in principle has our full support. We think it is a serious and intelligent attempt to tackle illegal immigration and the pull factors that drive it.

It has also come at a pretty opportune time. I need hardly tell you that immigration is the major issue of public concern, especially as the crisis in Syria and the middle east has led to the effective collapse of the borders of southern Europe. We have been lucky here in that, in recent years, we have had only 20,000 or 25,000 asylum claims, but I think we all remember when that number hit 80,000 and we found that there were half a million files lying around in a warehouse, which was appalling, especially for those who had genuine cases, but on any level that was appalling and must not be repeated.

In terms of context, it seems to me that we now need to get ahead of that curve, both in identifying genuine claimants and removing and deterring those who are in fact economic migrants. We think that the Bill can help in that task.

To answer your specific question about the probable size, in 2009, the LSE gave a central estimate of about 600,000. We looked at that and thought that a million was probably closer, but almost by definition it is impossible to be accurate. The conclusion to be drawn from those numbers is that it is absolutely inconceivable that the Government would introduce measures that removed a million people from the country by force. It cannot be done, would not be done and nobody would support it. That is why measures, including some of those in the Bill, are essential if we are to persuade people to make up their own minds and go home when they should.

It is worth mentioning in that context that the sheer scale of movement is not really widely understood. In any one year—I will take 2014—7.5 million tourist visas were issued. Clearly, some of those will be tempted to overstay. Business visitors: 1.7 million. Students and student visitors: 270,000 in one year. So you are looking at an enormous flow of people and no way in which you can forcibly remove them if you need to. Indeed, we do not even know who they are, or even if they are here. As you probably know, exit checks were abandoned by the Conservatives to the EU in ’94 and by Labour to the rest of the world in ’98. So for nearly 20 years, nobody— the Government, the Home Office—has the slightest idea who has gone home and who has not. We are starting from an appallingly difficult situation and, as I said, the only way to approach it is to improve the likelihood of people deciding for themselves. Also, it is necessary to tackle the difficulties that have arisen in the removal process. In my view, they are not very widely understood, and when I first heard them, I was rather surprised.

It is the case, surely, that an effective removal capability is at the basis of the credibility of the whole system. If people think that they can stay indefinitely and not be removed, of course they will do that if it is to their advantage. I am afraid that successive Governments have sort of concealed the weakness of the system by conflating various figures, but if you look at the number of immigration offenders who have been removed, in the last six years the average has been fewer than 5,000 every year compared to the numbers that I have just given you for the inflow. It will be obvious to you that work is required on this front, and I hope obvious to you that this Bill will help with that.

Q 102 To expand on that, at a practical level, you rightly said that there are 11 Acts of Parliament, and that we still do not know who is coming in and who is going out. Groups have said that if support to asylum seekers is withdrawn, there is concern that they might abscond from the system. On a practical level, what do you believe the Bill will add to existing legislation, so that we can deal with the problem? From my casework, I know that the biggest problem is that once the Home Office team has gone through the process to recognise that someone needs to be deported, it does not have the resources to deport them. On a practical level, I cannot see how the legislation will make that process more straightforward. Are there specific proposals in the Bill that will do so?

Lord Green of Deddington: Yes, and that is a very good question if I may say so. There is a huge amount to do, but I would pick out the appeal process, which has been leading to significant sources of delay, and is sometimes quite ruthlessly exploited by a bogus applicant, and is more likely to be so, and by some of the lawyers. The first-tier tribunal has considered 850,000 cases in the past seven years, so the provisions in the Bill that will provide for removal first and appeals later will be very important. Equally, it will be important that that provision is not applied when it should not be, and I am sure that you will be focused on that as a Committee. The reality, however, is that the legal system has been exploited to the disadvantage of the community as a whole.

So far, as I am sure that you know, the Government have reduced the number of kinds of appeal that you can make from 17 to four. When they applied the “removal first, appeals later” provision to foreign national offenders, they found that only 25% bothered to appeal and of the total, only 1% succeeded. Of course, foreign national offenders are likely to have a much less convincing case than many others, but if we can find a way, consistent with human rights of course, to shift the burden of appeals, we can get the whole system moving more rapidly than it has in the past. And as I said at the beginning of my evidence, now is the time to do it, because we must have a system. The Government keep talking, and rightly so, about breaking the link between people getting to Britain and believing that they can stay here indefinitely. That amounts to the fact that we must have an effective way both of differentiating between economic migrants and asylum seekers and of swiftly removing the first of those two. There is a lot to be done, and I think that the Bill will help.

Q 103 Lord Green, there has been some questioning during the course of this session about the introduction of offences relating to illegal working, in particular the creation of an illegal working offence against employees. Could you share any thoughts and comments on how we can have a firm response and crack down on illegal working in all its different forms, as well as some of the draws that entice people into migration? How would you respond to the challenge that this may somehow prevent people from coming forward who may be victims of exploitation or trafficking, for example?

Lord Green of Deddington: I will keep my answers shorter in future, Mr Chairman, but I wanted to set out some of the basic considerations.

Sure. It was a good opening exchange.

Lord Green of Deddington: Our view is that it simply has to be an offence to work illegally in this country. I cannot see how it can be otherwise. For starters, these people are unquestionably undermining the wages of British workers or immigrant workers, for that matter—legal workers. There is no question that they are undermining the wages of legal workers.

Wages in London are lower than anywhere else in the country. Why? Because in low-paid work there is an enormous number of people who are ready to work for very little and, of course, employers know they can get illegals for even less. It has to be an offence, and it is high time that it was. As you say, there has to be a balance. As you know, the Modern Slavery Act helps in certain cases if people will come forward, but the answer probably is stronger enforcement—in other words, lean on the employers in order to squeeze out the ability to do this.

Q 104 Lord Green, in response to an earlier question, you talked about an effective removal system. Could you expand on that and tell us what you think would be an effective removal system?

Lord Green of Deddington: First, it has to be quick. It has to be fair and it has to not be under the impediment of extremely complex procedures and legislation. I think the proposal in the Bill is right in addressing that. There are other issues, of course. They probably need more resources to do it. They probably need a bigger detention estate. With all those put together, one can work on improving the removals, but, as I say, you cannot remove 1 million people. You have to make sure they want to go themselves.

Q 105 Lord Green, you have already said there should be a duty on employers. I presume you put into the same category people such as landlords, whom the Bill specifically addresses. How can we better prevent illegal working without imposing additional burdens on business generally?

Lord Green of Deddington: I do not think you can, to be frank. There has to be a duty on employers and they have to fulfil it. They have to recognise that this is a serious matter of great public concern. It is a field in which some unscrupulous employers are making a packet at the expense of honest employers. They have to fulfil it.

Q 106 I wonder whether I could follow up on your answer to the Minister, Lord Green. You were saying that the criminalisation of workers would be helpful in achieving labour market compliance.

Lord Green of Deddington: Sorry, I am not saying workers should be criminalised; I am saying that illegal work should be a criminal offence.

Q 107 Effectively, the Bill criminalises undocumented workers, does it not?

Lord Green of Deddington: If they are here illegally, yes. That is the point.

Q 108 In your evidence to the Migration Advisory Committee review of low-skilled work, you talked about the problem of fear in the workplace and of there effectively being a climate in which employees would not challenge their employers. Do you not think that creating a criminal offence assists the hand of unscrupulous and exploitative employers and gangmasters, and therefore negates the desire that we all share to achieve effective compliance in the labour market?

Lord Green of Deddington: Yes, there is clearly that possibility. You say, does it negate. I think not because the wider issue is that we must crack down on illegal employment, which is widespread. Another part of that is to enforce action against employers, very few of whom have actually been penalised.

Q 109 I wondered whether you were hesitating because you wanted to add to that answer.

Lord Green of Deddington: No, not for the moment.

Q 110 I wonder whether I can ask another question. Your evidence to the MAC review of low-skilled work also talked about the need for more effective enforcement of minimum wage compliance and other areas. Do you think that it is a problem that the Employment Agency Standards Inspectorate only has nine full-time staff, and do you think that more resources need to be allocated for effective enforcement?

Lord Green of Deddington: I think pretty well without question. One of the problems about expanding the legal base, it has to be done as a starting point but, if it is not then enforced, it becomes a waste of paper. If I may say so, I think that this Government have not devoted the resources that are necessary to what is an increasingly serious problem. They need to look again. The amount spent on the whole immigration system is about £750 million a year, I believe—absolute peanuts. It is one of the areas of government—I am sure that there are other areas—that needs more attention than it is getting.

Q 111 I want to pick up on something that was raised this morning by the Refugee Council and Still Human Still Here. They were inferring that the reform of the support will affect asylum seekers, leaving children destitute and obviously affecting social services and local authorities. I wondered whether you had an understanding of the level of numbers that may be affected by that, and therefore the impact that could be anticipated, or whether that is in essence scaremongering?

Lord Green of Deddington: In terms of numbers, offhand I do not know. I would make a distinction between families where there are children present, which would surely affect the way in which they were handled, and those where there are no children. Where there are no children, when people come to the end of their process, they should go—end of story. We certainly should not have the taxpayer paying for them.

Q 112 Back to that point, there are two questions relating to what we were told early this morning by witnesses. On that point—namely, we were told that with a lack of resources, when people have finally lost their appeal, that would drive them further underground and they would cease to engage; it would not work and we would find that less people were leaving—can you comment on whether that is a fair assessment? Will that measure and the other measures in this Bill make it more likely that people go underground and less likely that they are going to come forward and engage, as we are told the term is, and come to the conclusion that they need to go of their own accord?

Lord Green of Deddington: Of course, it would depend very much on the individual cases. The overall statistics are very clear. First, of those who have applied for asylum—this is the average over the last 10 years, just to give you the broad scope—50% only did so when they were discovered. Secondly, when those cases were heard, 50% were granted. So the other 50% were refused, and of those only half were removed. So if you set foot in this country, as people are doing every day from Calais, and you say the word “asylum” you have a 75% chance of staying here. Of course, they know that—they have relatives, they have friends, they have mobile phones, most of them. If you are going to weight the system, which is the only thing you could do by legislation, then you have to weight it against bogus asylum seekers. That is my bottom line.

Q 113 Thank you. That takes me back to the other point, which is about making working illegal, in particular, although it equally applies to some of the other measures in the Bill. I put it to one of our earlier witnesses that quite a lot of potential migrants—even those who might be considered to be being trafficked or abused or taken advantage of when they get here—are quite well informed about the rules and the system here, and, as you said, their chances of remaining indefinitely. Would you say that they are more likely to know that it will be illegal and more difficult to work here, and will that, along with the other measures in the Bill, stop the draw factor? We were told this morning that it was unlikely that people who come from abroad would really know what the rules were here.

Lord Green of Deddington: I do not think that we should underestimate the intelligence of people because they come here illegally. For a start, there is very strong communication within communities, whether you be a Filipina maid or a Syrian carpenter. They all have friends and relatives, and communication is extremely good; they learn very quickly and they also learn the way round the system. I would not be too bothered about that. We need a system that is sensible, firm and fair, and they will either realise that that is the case or realise that it is not.

Q 114 I just want to ask for a quick clarification of an earlier answer to the Minister, in which you used the phrase “these people”. To be clear, can you define “these people” for the Committee?

Lord Green of Deddington: I am not sure what you are referring to.

At the start of an answer to the Minister, you used the phrase “these people”.

Lord Green of Deddington: I do not know which answer you are referring to. Can you be a bit more specific?

You might have been referring to asylum seekers or to migrants, but you gave the answer.

Lord Green of Deddington: I do not understand the question, I am afraid.

Q 115 My main question is, to what extent do you consider that the Bill carries the risk of encouraging everyday discrimination against people who do not appear to be British?

Lord Green of Deddington: Could you say that a bit louder, please?

To what extent do you consider that the Bill carries the risk of encouraging everyday discrimination against people who do not appear to be British?

Lord Green of Deddington: What did he say?

Lord Green, are you having difficulty with the sound?

Lord Green of Deddington: I am, rather, yes—and, if I may say so, that slightly different accent. I did not understand the question, I am afraid.

Do you think this Bill carries a risk that it will encourage everyday discrimination against people who do not appear to be British?

Lord Green of Deddington: Does the Bill carry the risk? Ah, sorry, yes, I understand. Some aspects of it might—you are probably thinking of the tenancy provisions. There is that possibility and it would be foolish to deny it, but you have to balance that against the absolute scandal of beds in sheds and the exploitation of people—immigrants usually, but not always—by ruthless landlords. There are tens of thousands of beds in sheds, probably more, and appalling conditions. That has to be tackled. Yes, there is a downside, as there is to any kind of change of this kind, but let us keep our eye on the ball. There is a scandal going on in relation to the housing of many people and that needs to be tackled.

Q 116 Earlier on you mentioned some of the numbers and the applicants to stay here. To what extent do you believe that the opportunities and ease of obtaining illegal work in this country are a pull for people to continue to come here?

Lord Green of Deddington: It is a major factor, absolutely. The wages here are so much higher than in the countries from which many people come—indeed they may have no means of earning a living in those countries in current conditions. I mentioned earlier that 50% of those who apply for asylum do so only when they are discovered working—or are discovered, but they will be working when they are discovered. Clearly, from their point of view, their intention was to come and work and then, as a fall-back position, apply for asylum if arrested. So, yes, that is a major factor.

Q 117 Mr Owen, it is a pleasure to serve under your chairmanship, and I apologise for arriving late.

I would like to ask the panel some questions about illegal working. At the moment, a number of measures can be taken in relation to both employers and employees where there is an inspection of premises and people are found to be in the country without proper status. The problem, as I understand it, has been the low rates of inspection and even lower rates of enforcement. That is the really critical issue. For that reason, steps have been taken to create a director of labour market enforcement and it is hoped there will be better strategy—streamlining and all the rest of it—but throughout those debates, and certainly when I was Director of Public Prosecutions, I cannot remember people saying that there was a problem with not having an offence that can be prosecuted. In other words, nobody has suggested, as far as I know, that there is a problem because there is not an action that can be taken against employees. There is obvious action that can be taken.

Do you know of any evidence of any cases that have not progressed because the offence of illegal working by the employee was not in place? In other words, there was an inspection, something was found to be wrong, but then there was a problem over not being able to bring a case because you did not have an offence against employees. I do not know of any evidence of that.

Lord Green of Deddington: Almost by definition it would not arise, because if there were no offence they would not be taking it further—

Q 118 No, I am sorry to interrupt you, but there are plenty of examples throughout our criminal proceedings sector where something happens and a team will have carried out an inspection or arrest and realised that they cannot proceed any further because there is no offence that fits the action they are trying to deal with. That is not uncommon. Usually the response is to legislate to fill what is seen to be a gap in the available offences. I have never seen any evidence here that it is a gap in the available offences that caused the problem. It seems to be that there are not enough resources to carry out inspections to enforce the measures that are already there.

Can I ask for briefer answers and questions, please, if we are going to satisfy everybody on the list? Thank you.

Lord Green of Deddington: On the first point, you may well be right, but that is more for the Home Office than myself. On your second point, enforcement is essential, and it is not happening. You mentioned this director of enforcement. I think that is probably a good idea, but I would say this. The civil service is not a Meccano set; it is a plant and you cannot keep digging it up to see if it is working or not. I think we need to be careful about reorganising, organising and reorganising. On this occasion, I think there is a case for it.

Lord Green, although I, too, cannot remember the context in which you used the phrase, I would like to support what Mr Newlands was saying. There was a very disparaging tone with regard to “these people”. It certainly jarred with me. On such a sensitive issue as this we all need to be careful about language.

What I did not follow in the logic of your response to an earlier question about the financial support provided to people who have had their applications refused and who have exhausted the appeal process was why there should be an exemption for those with children, or a different style of treatment for those who have children. It seems to me, and I would welcome your views, that if a parent is told that they do not have the right to remain, they are by definition responsible for the welfare of their child. If the child is going to suffer disproportionately because there is a lack of central Government or local government funding, the solution remains in their hands. They have exhausted the appeal process; they have no right to remain. Surely, to safeguard the future and wellbeing of their child or children they should return to their country of origin as quickly as possible. I did not follow the logic that you were deploying as to why there should be two separate streams merely predicated on the fact that people had children.

Lord Green, I have one more Member, Anne, wanting to ask a question. If you do not finish your response, would you please give some written response to that?

I will try to be quick. In answer to an earlier question regarding asylum seekers, Lord Green, you said that they know that they have a 70% chance of staying—I am paraphrasing—and that some of them even have mobile phones. I wonder if you are aware of a detailed report from 2010 that Swansea University carried out for the Refugee Council on this very matter of whether asylum seekers set out to come to the UK. They said that the belief that many politicians have is not supported by the existing research evidence, much of which suggests that destinations are determined not by personal choices about lifestyle but by the practicalities and demands of the situation—

Order. I am sorry to stop the hon. Lady in full flow. Lord Green, Mr Hoare and Ms McLaughlin have asked questions that are on the record, and if you could provide answers we would very much appreciate it. On behalf of the Committee I thank you for the answers you have given. If you have additional information that you want to supply to the Committee, please feel free to do so.

Examination of Witnesses

Richard Lambert, Eric Leenders and David Smith gave evidence.

Q 119 Good afternoon. We are now hearing evidence from the sixth panel of witnesses, from the National Landlords Association, the Residential Landlords Association and the British Bankers Association. For this session we have until 3.45 pm. Could the witnesses please introduce themselves for the record?

David Smith: I am David Smith from the Residential Landlords Association, and I am the policy director.

Richard Lambert: I am Richard Lambert, chief executive officer of the National Landlords Association.

Eric Leenders: I am Eric Leenders, the executive director responsible for retail and private banking at the British Bankers Association.

Q 120 May I ask the panel—but I think probably Mr Lambert and Mr Smith in the first instance—about the provisions in the Bill dealing with the duties on landlords to carry out checks before renting to, or allowing premises to be occupied by, a person without the right immigration status? Do you have concerns about those provisions, from the perspective of the landlords, and do you have any comment about the concern of others that there could be a default position leading to discrimination—in other words, landlords being so concerned, because it is a complicated exercise and they are not entirely sure what they are doing, that it is easier simply to default to a position where you rent to somebody who is pretty obviously British, or who has a British passport?

David Smith: We have four areas of concern, so yes to your first question and, actually, yes to your second as well, but in a different way. We are concerned about the speed with which the second Bill has been brought forward when the first Act, the Immigration Act 2014, is not fully in force. It was announced only two hours ago that the pilot that has been evaluated in the west midlands will be rolled out across the country from 1 February. That pilot was held by the Immigration Minister to be a success, so we are not clear why there needs to be a set of criminal provisions on top of civil fines, which are, apparently, already effective. We would urge Parliament to take its time as it goes through implementation of the changes.

We are concerned about document discrimination—so not so much discrimination on grounds of nationality as discrimination on the grounds of people not having passports. Having a passport is far and away the simplest way to check somebody, so we are concerned that landlords, rather than just discriminating against people, will simply take the path of least resistance, especially as more pressure, potentially, is applied to them, with the possibility of ultimately going to jail. Indeed, I note from the evaluation that was published a few hours ago that one example was given, by one of the interviewees, of a situation of somebody without a passport being refused accommodation. So we are concerned about that.

We are concerned about the way in which the offences come into effect. The way the Bill is drafted, as soon as the Secretary of State has served a notice informing a landlord that they have illegal immigrants in their property, they are immediately committing the offence of having illegal immigrants in their property. It takes 28 days before you can possibly evict those people, so there are 28 days during which they are committing an offence. It has been suggested to us that the Home Office will not seek to prosecute, but it would seem to me that the only person who could give such an assurance is the person who is now filling your old job, Mr Starmer, at the CPS, the prosecuting body.

It would also be normal with offence of this type to have a provision that says that a landlord can establish a reasonable excuse—for example, if they have been severely ill or something like that—and that provision is not there.

The last thing is the air of confusion about two aspects in particular. First, the helpline has been described as a helpline, and was stated as such the other day. However, it has also been described to us as only being there to check for asylum seekers and people who do not have documentation. We would like to know which it is, and whether it will be fully funded as a helpline, so as to be effective.

The other thing that is notable from today’s announcement is that the provision is to be rolled out from 1 February, but it is not clear whether it will only apply to new tenancies commencing on or after 1 February, because it has also been stated to us in other meetings that it may apply to tenancies that are already in place on 1 February. It would be very nice to have some clarity on that, because it would be an extremely serious problem. I see that the Immigration Minister is shaking his head, which may give me the answer to that question.

Richard Lambert: We have concerns about placing this kind of responsibility on landlords, who are not trained for it and are not familiar with it. However, we have taken the view that we have to try to make sure that if this system is going to be introduced, it is as straightforward and practical as possible for landlords to operate. That has been the level of our discussions with the Home Office and other agencies throughout the past year, since the previous Act was introduced.

On concern about discrimination, we were probably more concerned about discrimination when the original policy was announced, or at least I was more concerned at that time than I am now. That is partly as a result of my going round and talking to local landlord meetings, as I do regularly. Rank and file landlords in our organisation are very worried about this issue, and those outside the pilot area are more worried than those inside it. One of the things that really comes back to me is, “How will we be able to tell if somebody is British? You can’t just look at them and say they are British. You can’t see their name and say whether or not they are British. In this day and age, you can’t even listen to their accent and say whether or not they are British.” So what we find is that landlords are moving towards the assumption that, in the same way that employers now tend to check all identities regardless of nationality, landlords will check identification, to make they cover off this particular aspect.

Q 121 I thank our witnesses for giving evidence this afternoon, and I also thank the relevant landlord bodies for their participation in the round-table sessions that we have had and will continue to have throughout the detailed implementation of the Bill.

I want to come on to one of the parts of the Bill that relates to the termination of tenancies. When landlords discover someone who is in the country illegally, they will be able to resolve that issue in a speedier fashion through the landlord and tenant legislation. Would that be welcomed by the sector?

Richard Lambert: Most definitely. Our big concern about the initial Act was what would happen once a landlord found they had a tenant who no longer had the right to rent, or who they thought had the right to rent but turned out not to have it. How could the landlord end the tenancy as quickly and as cleanly as possible, without necessarily getting into the whole court process? One of the problems with a court process is that it can be very protracted, yet the landlord is in the position of having committed an offence.

What we wanted to see was a process that moved that forward as quickly and clearly as possible. The provision in the Bill whereby the Home Secretary issues a notice once the Home Office has been informed that a tenant no longer has the right to rent achieves that. We have some concern about a power that has always been with the courts moving over to the Executive, but that is a constitutional principle for Parliament, ultimately, to decide. For our purposes, and looking at the practicalities, the power should work effectively.

David Smith: There are a couple of different points to make. First, it is generous of you to put in a provision to allow eviction of Rent Act tenants, but it is possibly not entirely necessary, as Rent Act tenants will have lived in the UK for so long that they are almost certainly entitled to stay here anyway, irrespective of how they entered the country.

The other part of it that I am a little bit more concerned about is with relation to assured shorthold tenancies and the power you have put in to evict. As I read it, it would still require an amendment to the tenancy itself for that power to be exercised, in that ground 7A can only be used inside a fixed term if it is mentioned in the tenancy agreement. So that ground for possession would require a lot of landlords to change their tenancies, which it is obviously their responsibility to do, but there is obviously a substantial piece of education that will need to be done in the sector, which I accept is our responsibility—possibly more than it is yours.

The other point is the issue of transfer of tenancies, so where there is a group of tenants, some of whom are illegal immigrants and some of whom are not, there is a power for the court to transfer the tenancy. The first point is that it is easily got around by simply issuing proceedings for some other ground for possession as well, which is relatively easy to do. The other problem about it is: how will you deal with all the other side bits that go with it—for example, tenancy deposit protection?

If a deposit is registered in one group of tenants’ names and the tenancy is transferred by the court to a different group of tenants’ names, the deposit protection schemes will need to have the deposit re-registered, and something will need to be done to deal with that contractual positon. So I am a bit concerned as to how that will work. In practice, I am afraid the mechanics are a little bit more complex in terms of shifting tenancies around between tenants.

Q 122 The detailed input given thus far has been helpful in flushing some of those issues and, no doubt, those discussions will continue.

Given the time, I should ask Mr Leenders about the banking provisions. The new provisions in clause 18 are on existing bank accounts and the ability to take action. That may be linked to some of the other issues we have touched on in the session, such as proceeds of crime legislation, linked to the employee criminal sanction that was highlighted in a previous session. Will you comment on the practicality and operation of that?

Eric Leenders: Certainly. We have some experience through the Immigration Act 2014 of implementing the required database search for new accounts that customers might want to open. That has given us some experience and some learning. The three-stage process in the Immigration Bill is broadly similar in the sense that first there is the status check, currently through CIFAS. Then there will be notification of any matches back to the Home Office, which is the three-point match, and no fuzzy logic, which gives a clear indication of those particular clients that we might need to close accounts for. The differential is the action that is then taken.

Essentially, though, as we understand it, there are two ensuing actions. First would be an instruction to close the account. We are working closely with HM Treasury officials to understand how that might work in practice—if I may, I will come back to that point. Second would be some form of freezing order through the courts that might facilitate ongoing regular payments, potentially for rent and other things, if there are subsequent actions that the individual might need to take.

In the context of closing the accounts, some of the challenges I think we find are, first, which types of accounts? We know it is individual accounts, joint accounts, additional signatories, charities and some smaller accounts, but is it all those instant access accounts or is it simply current accounts? That has been a challenge that we faced that was clarified, I think on the Floor of the House, with the Act.

There is also the treatment of balances, particularly of course for overdrafts. That has a bearing on the amount of time we would consider appropriate for actually closing the account. Currently, the default would typically would be 28 days, but, if there is an overdrawn balance, we would probably like to see that paid and the account closed quicker to lessen the propensity for that overdraft to drift up again.

I think we have a bit of an issue where there might be knowledge of a disqualification but we might not hold the qualifying account. These days we tend to have financial services across a range of providers, and the extent to which our responsibility might be to disclose to those whom we feel might hold the account, or whether we do nothing, is a moot point just now.

The granularity of disclosure once we have given notice to close the account is something that we are working on with Treasury officials. Currently we are looking at whether that should include balances, additional parties to an account or details of regular payments, which potentially would include details of the originating account for that regular payment. That is not information that we would necessarily find easy to extract from systems, so that is an additional build for us.

In the Financial Conduct Authority we have obligations to treat customers fairly. We found with the Act that there are some cohorts of consumers where actually it is quite difficult, in the sense that those with no fixed address might not have suitable matching criteria to pass through the database, so then we should call them out. That of course creates a customer service issue. Elderly consumers are another area—perhaps they have not registered on the electoral roll and therefore, again, we might need to call them out. We need to get that referral process quite slick.

We will in parallel need to implement the payments accounts directive, which has a requirement that you are familiar with to do with account opening for citizens legally resident in the European Union, which is a different definition and criterion to work through.

In terms of the pragmatics, as we envisage what we call operationalising, we would see that first wave of checks across a database—it might be as many as 120 million-something accounts, so there will be a volume of activity. Thereafter, if we were to undertake checks quarterly, say, we would be very keen just to check any additions and amendments to a register, rather than to have to sheep-dip the whole database.

The final point of course is the timeline. We have had some useful clarifications, again, from Treasury officials that suggest that the first checks might not take place until the latter stages of 2017. Typically, banks need something of the order of 18 months to implement mandatory change processes and to go through testing and assurance internally. We might be able to foreshorten that—we are talking about a period of about, say, 12 months. Whatever we can do ahead of the detail in the secondary legislation would be very helpful to us.

Q 123 Thank you for that detailed and comprehensive answer on the provisions, which is quite helpful and instructive on the level of detail that is engaged here. Just briefly, perhaps you could reflect on the provisions of the Immigration Act 2014 and their implementation. What has been the practical experience? Clearly a lot of this quite detailed analysis was engaged there as well. What has been the situation to date?

Eric Leenders: On volumes, I think we have seen about 1.9 million searches go through the CIFAS database. From that we have identified some 14,000 matches against the database, and those have been referred back to the Home Office. That has in turn identified some of these issues such as people with no fixed address or those elderly consumers. So we can draw on that experience to inform our thinking around the Bill.

We consider that the CIFAS process is working quite well. The truncated timeline was difficult, frankly; there was an element of manual processing, and with manual processing there is, unfortunately, a higher propensity to or risk of error. So that is why we called for that slightly longer timeline—to ensure that as far as possible we can automate and therefore reduce the error rate within the process.

Q 124 I want to talk about potential discrimination under the right to rent aspects of the Bill. Not everyone is as enlightened as Mr Lambert, and so not everyone believes that you cannot tell by a face, a name or an accent whether someone is British. I was very struck by a statement sent out by the Residential Landlords Association, which I am going to read from:

“Whilst the Residential Landlords Association condemns all acts of racism the threat of sanctions will inevitably lead many landlords to err on the side of caution and not rent to anyone whose nationality cannot be easily proved.”

How concerned are you that the Bill will allow some people to use it as an excuse for their racism and that others will inadvertently end up acting in a racist manner, not because they want to but out of fear that they may end up breaking the law if they do not?

Richard Lambert: How concerned am I that some will use it? Very. How concerned am I that some will use it inadvertently? Fairly, but our experience is that most of the concern about the provisions is from people who have not gone into the detail, are worried about what they might have to take on, are concerned that they do not have the expertise or knowledge and are very focused on the penalties, because what has been pushed hardest is not the responsibility or the practicality but the level of penalty for getting it wrong.

Having had a quick look, like my colleague, at the evaluation report that was published this morning—we had a chance to look at it before we came in here—something like 22 of the 26 landlords who responded said that it was actually relatively easy to undertake the checks and that there did not seem to be an obvious level of overt discrimination, although there is still an undertone, and in a few cases that does happen.

It is a real risk, but when I said what I did about awareness of the fact that we live in a multicultural, multiracial, multifaceted society, that was not me speaking—obviously, I believe that—but me recounting what has been said to me by landlords at local meetings around the country. They are very concerned about the practicalities of how you make this work, and they realise that you cannot make assumptions, from looking at somebody, about whether they have the right to rent or whether they are a British national. The only way is to check and to check everyone. I recall anecdotally from my colleagues on the Home Office working group on the evaluation report that the largest level of resentment coming back from tenants was from the indigenous white British population, who did not understand why they were being asked to prove the right to rent. You actually get a counter-intuitive response.

David Smith: People who will discriminate would discriminate anyway, so in a sense people who are going to actively discriminate as a result of the Bill would have been actively discriminating before. Our biggest concern is what we have chosen to call document discrimination. Of the UK indigenous populace—or however you want to describe those people—17% do not have passports. If a landlord has two people walk through his door who want to rent the same property, and one says, “I have a passport and can do the right to rent check right now,” and the other says, “I do not have a passport but will come back tomorrow with two forms of identification off the secondary list,” the landlord is technically not breaking the law by taking the first person, and in practice I am sure that he will take that first person.

Our concern is that there are groups of people who are not in possession of passports and driving licences. As a lawyer, I have many such people as clients, because I have a large client base of elderly people or people who are in care. There are substantial numbers of those people, and a lot of them are renting, increasingly in the private rental sector, as there is a change from social renting to private renting. There is a potential difficulty with providing those people with proper identification.

We have called for a much simpler document for people who are on benefits and would already have been checked to receive benefits. Local authorities could provide a single document—perhaps watermarked or stamped—that landlords could be clearly told was acceptable as a single document. At the moment those people are going to need to produce two separate documents. They may not have them to hand, or it may take time to acquire them. The benefits letter has to be signed by a named official, and named officials may be reluctant to put their names on these documents. Our concern is that groups of people who should have no reason to be concerned by this legislation at all may find themselves being put through checks that they cannot easily meet.

Q 125 I declare an interest as per my declared interest in the Members’ register. For the record, I am probably what Mr Smith calls one of those in his sector who are amateurs and accidental landlords. One thing I know from experience, although I may be an amateur, is that the eviction process is incredibly burdensome for landlords. It is far too lengthy and hugely costly, and when you are going through the process, you do not get any rent from the tenant who is in your property. That is the current situation, whether they are an illegal immigrant or not. I cannot for the life of me understand, and neither can the members of Calderdale Landlords Association, whom I have spoken to, why on earth as an organisation you would be against something that is far better and makes it far quicker for a landlord to evict a tenant in these circumstances.

David Smith: In what sense?

Q 126 You said very clearly that you had some real concerns around the eviction process that was being proposed. You mentioned the 28 days, for example. That is a much quicker process than what is currently in place.

David Smith: I said that my concern was that as soon as the Secretary of State had issued a notice to a landlord, they are committing an offence, and it takes 28 days before they can even begin the eviction process. During those 28 days they are committing the offence of having an illegal immigrant in their property.

Q 127 But they are already committing an offence as the law currently stands, and the process of evicting a tenant takes much longer. What I would like to know is why on earth you are advising landlords that this element of the Bill is not particularly—

David Smith: I think there is a misunderstanding here. They are not committing an offence as the law is currently drafted, because it has not changed yet. If it were to be changed, what we are after is a situation where, provided that the landlord is proceeding diligently to carry out the eviction, they are deemed not to be committing the offence of having an illegal immigrant in their property—so they have what the Act has termed a statutory excuse. As the situation stands, as soon as the Secretary of State issues the landlord with a notification that the tenant in their property is an illegal immigrant, the landlord is instantly deemed to be committing an offence of having an illegal immigrant in their property, and they can be prosecuted for that.

Q 128 So the new eviction process in the Bill is a good thing. Is that what you are saying?

David Smith: Yes. I have no concern about that at all.

Q 129 Okay. Can I just ask you about document checks, which have been mentioned? I just wonder whether you guys actually understand what is going on in your sector. If you try to get accommodation from an agency, for example, as I recently did here in London, first, you have got to be there on the day to secure something, and if you cannot get down to London to physically go and see it, you will lose it. Secondly, if you do not have the checks, whether you are an illegal or a legal resident in this country, it is a very difficult process anyway, because that is what people demand. Have you considered for one minute that for the amateurs and accidental landlords that you refer to, the introduction of some form of check, as is happening in the Bill, will protect them in other ways as well as just against potential illegal immigrants?

David Smith: Well, I suppose there are two answers to that. First, the current guidance would imply that using checks in other ways might well be unlawful discrimination, because the document checks are for establishing the right to rent, so that would depend on the guidance that is issued.

Q 130 But we have that in place anyway. If I do not have those documents to prove to an agency that I am who I am when I want to rent a property, whoever I am, guess what? I do not get the property.

Richard Lambert: To be fair, I think that that is custom and practice through tenant checking rather than a strict legal requirement. The other difficulty is that in some elements of the private rented market, lower-income people, people on benefits, vulnerable people and people who are very transient simply do not have that kind of documentation to hand.

Q 131 Okay. Let me just ask one final question, because I think I have made my point on that one. My question is to you, Mr Lambert, because you mentioned an undercurrent of discrimination in the system. May I point out that no evidence at all from the pilot—which, okay, was only published this morning—suggests that there is a discrimination there? You said that you have heard hearsay from people you have spoken to, but may I ask whether you have any physical evidence to suggest that there might be some form of discrimination in the system?

Richard Lambert: If you read the full report, I think it mentions one or two examples in the focus group that refer to what could be interpreted as minor levels of discrimination.

Q 132 So there is no real evidence—

Richard Lambert: That is what I am saying: there is no strong evidence of discrimination, although there is the potential there, and some minor level of concern may emerge in the focus group.

Q 133 Will the panel give us their assessment of what numbers might be involved in the area of policy that we are talking about? Do you have any assessment in particular of how many prospective tenants might present themselves to your members, or how many bank accounts in the case of Mr Leenders?

Richard Lambert: We can talk about how many households are in the private rented sector—there are about 4.4 million at the moment—and I think there is a turnover rate of about 25% to 30% a year, so we are looking at just over 1 million to 1.25 million new tenancies a year.

Q 134 Of those, do you have a sense of how many might fall under the provisions of the Bill?

Richard Lambert: None whatsoever.

David Smith: In a sense, they should all be falling under it, because landlords are required to check every new tenant, so one would assume that 1.2 million of them will require checks. How many of those people will then be found to have established the right to rent is perhaps one of the most hotly contested questions before this Committee, I would have thought.

Q 135 That is exactly what I am driving at. Could you give us your view on it?

David Smith: We have no information, clearly, as to how many unlawful immigrants there are within the private rented sector. The reality, as I think has been established before, is that landlords who are routinely and knowingly renting to illegal immigrants are probably breaking the law in a vast range of other exciting ways and are therefore intentionally well below the radar. Landlords who do not know that they are renting to illegal immigrants do not know that they are renting to illegal immigrants. Therefore, the information is extremely hard to come by.

Q 136 Just sticking with the two landlords, if I may, before coming to Mr Leenders on the same question, your organisations are membership organisations, clearly, and you know how many members you have. Do you have any sense of how many members you do not have? In other words, how many landlords are under the radar, to use your phrase?

Richard Lambert: That again is difficult to say—for under the radar. I estimate that there are probably about 100,000 landlords in all the landlord associations throughout the country—ours and the many little local landlord associations that exist. So there are probably about 1.4 million landlords who are not in landlord associations. It is then about what you mean by “under the radar”. If you mean the people who are completely illegitimate, who are renting beds in sheds and are probably landlords incidentally, because actually what they are is organised criminals and the housing element just comes in as part of that, they are more interested in prostitution, people trafficking, money laundering and so on, who knows? We could not tell that. What we do know is that there are probably about 1.3 million to 1.4 million people renting out property who are not directly engaged with our organisations or any other organisation. Our concern is always where they get their information from, how they know that what they are doing is the right thing, and how they learn about what is best practice or, indeed, about changes in the law.

David Smith: You should be aware that of landlords not in our organisations a significant number will be using letting agents who, themselves, are perhaps not always perfect either—a significant percentage of them do not fall under any professional body. A goodly percentage of them are aware of their responsibilities and will no doubt learn about them as they go forward. In a sense, there is a force multiplier effect by engaging landlord organisations, which can capture a good percentage of landlords, and by engaging letting agent organisations, which will pick up a lot of landlords who choose not to join a landlord membership body.

Q 137 Mr Leenders, any reflections?

Eric Leenders: I think we can identify 123 million instant access accounts. If we were to apply the experience from the Immigration Act of roughly 1% of searches being referred to the Home Office, that would potentially lead to a working assumption of about 1 million or 1.2 million searches being referred to the Home Office. That, in itself, surfaces an operational point about the readiness of the Home Office to deal with that volume in the initial wave of searches in the first quarter of the implementation of the Act. That is just one of those technical issues that we would like to work through. We might be able to find mitigants to that. For example, we might be able to strip out those who currently hold UK passports, but that is detail that we can work through in secondary legislation. I would not see that as a primary legislative point at all.

Q 138 I have two small, mopping-up questions. Mr Leenders, you went through the customer service and administrative burdens that the legislation puts on you, but are you largely in favour of it? Are there any unintended consequences of the legislation that we should be aware of?

Eric Leenders: We do not have a policy position on the Bill, nor did we on the Immigration Act 2014. There are some customer service points that give a little cause for concern. Referring customers with a seven-day service level agreement to the Home Office leaves them, effectively, in limbo for a period, and that customer might, quite justifiably, be entitled to an account. We do not feel that is the best experience, so we would want to work through one or two details like that. We would certainly want to have a period of testing—we are already encouraged by the Treasury giving some consideration to its own pilot exercise—presumably during the formulation of the secondary legislation, such that the customer impacts are minimised so far as possible.

Q 139 Mr Smith and Mr Lambert, I was surprised by how small the sample size was in the west midlands pilot results. Of the 67 respondents who are tenants, 60 are students. My assumption is that students are much more likely to have passports and letters of authority from their institutions. Do you believe that this is a skewed sample?

Richard Lambert: The evaluation period could have been better. It could have been a lot longer. We would have said, ideally, a year to 18 months because most tenancies last more than six months. In order to understand how this process works, you have to give it that length of time so you can see tenancies coming to an end, and limited right to remain coming to an end and you can see how that renews. It also took place at what is probably the slowest time of the year so, inevitably, there were not going to be a lot of tenancies turning over. Then there were the difficulties of contacting the population. It is interesting that in a university area, most responses to the request for tenant respondents came from students who are possibly more likely to be active in some of the social issues and more aware of these things going on.

David Smith: Students are also, to a large extent, exempt from checks. Students are nominated into accommodation by their educational institutions so any student in a hall of residence is effectively exempt from checks anyway. Given that areas around Dudley and West Bromwich are not substantial student areas—parts of my family come from the area—it is a shame that there was such a high student sample. I would have liked to have seen a sample that more adequately represented a wider spectrum of social demographic groups. We remain concerned about the effects, not so much on, for example, Members of Parliament renting homes, but on people in the lower social demographics who increasingly are coming into the private rented sector, will have difficulty with this legislation and are often driven into the arms of less salubrious landlords.