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
Public Bill Committee
Thursday 29 October 2015
[Mr Peter Bone in the Chair]
Offence of leasing premises
Amendment proposed (this day): 71, in clause 12, page 8, line 31, at end insert—
“(d) the landlord has commenced action under sections 33D or 33E within two months of becoming aware that the adult mentioned in subsections (2) was disqualified as a result of their immigration status.” —(Keir Starmer.)
This amendment would provide a defence for landlords who are being prosecuted under Clause 12 if they can show they commenced eviction procedures within 2 months of becoming aware that the tenant was disqualified because of their immigration status.
Question again proposed, That the amendment be made.
I remind the Committee that with this we are discussing the following:
Amendment 72, in clause 12, page 9, line 37, at end insert—
‘(6) The agent does not commit an offence under subsection (2) or (4) if the agent is also a resident of the property in subsection (1).”
This amendment aims to ensure that co-tenants (who would normally be described as house sharers), who also act as agent, cannot be held liable for their landlord’s contravention of Section 22 of the Immigration Act 2014.
Amendment 85, in clause 12, page 10, line 25, leave out paragraphs (4) to (6) and insert—
‘(4) Sections 33A to 33C do not apply in relation to a residential tenancy agreement or a renewed agreement entered into before the coming into force of section 12 of the Immigration Act 2014.”
To ensure that none of the criminal offences are committed in respect of tenancies entered into (or, in the case of renewed tenancies, first entered into) before the offences come into force and thus to ensure that there is no retrospective element to these criminal penalties.
Amendment 87, in clause 13, page 11, line 33, at end insert—
‘(6A) A landlord does not commit an offence under s 33A of this Act during the period of 28 days specified in subsection 4.”
To protect a landlord/landlady from prosecution for renting to a person without a right to rent during the period for which they are prohibited from evicting the tenant under subsection 33D(4).
Amendment 88, in clause 13, page 12, line 1, leave out section 33E.
To remove the provision which implies into any residential tenancy agreement that the landlord or landlady may terminate the tenancy if the premises are occupied by an adult who is disqualified from renting because of their immigration status.
Amendment 89, in clause 14, page 13, line 6, leave out “must” and insert “may”.
To provide a court with a discretion as to whether or not it orders possession of a dwelling house on the grounds that the Secretary of State has issued a notice confirming that a person does not have a right to rent.
Just before lunch, I was responding to the amendments tabled by the hon. and learned Member for Holborn and St Pancras, and I had reached amendment 88. The hon. Member for Sheffield Central raised a point about co-tenants, and I said that I would reflect over the luncheon period and see whether I could respond to him. Where a landlord takes on a tenant and accepts rent from them, that landlord takes responsibility for carrying out the checks. That is the fundamental starting point. The tenant is responsible for right to rent checks only if they sub-let, unless they agree otherwise with the landlord. Only where an agent is acting in the course of a business under section 25(2)(a) of the Immigration Act 2014 can an offence arise. That was the point I was trying to elucidate, without the agency provisions in the 2014 Act in front of me.
To take the hon. Gentleman’s example of students, in the circumstances that he outlined they would not be acting as an agent in the course of their business, so the provisions would not apply. The provisions could operate only if there was a formal sub-letting arrangement, which is, I believe, different from the arrangement that he was describing. The luncheon adjournment has enabled me to respond to his question, and I hope that that answer is helpful.
I turn to amendment 88. New section 33E was introduced to provide a means by which a landlord could pursue eviction where a tenancy is not an assured shorthold tenancy—in other words, a common-law tenancy—even if that was not set out in a tenancy agreement by making it an implied term. Removing that would create uncertainty for landlords about when they could terminate the tenancy if they discovered that they were renting to an illegal immigrant. The hon. and learned Gentleman’s amendment would create difficulty and uncertainty for landlords and tenants, and we judge it to be unnecessary.
On amendment 89, the clause makes it clear that action could be taken only after the Home Office served a notice or notices on a landlord. Those will be issued only when the Home Office is clear that the occupiers are illegal immigrants, that they do not have the right to rent and that there is no bar to their leaving the United Kingdom. I suspect that we may have further discussion on clause 14 later on, but for now I will say that in conducting its duties, the Home Office would have to consider its responsibilities in relation to children when determining whether a notice should be issued. It is our judgment, therefore, that the system contains that safeguard and check, but I have no doubt that we will discuss that in more detail when we come on to the provisions concerning the operation of the eviction arrangements, because of the way in which the amendments have been grouped.
I wonder whether the Minister can clear up something that I am a bit curious about. My hon. and learned Friend touched on a local authority’s duties under the Children Act 1989. If a family are evicted, will they be entitled to local authority help under homelessness legislation as well?
The hon. Lady makes her point, and I have no doubt that we will discuss that further when we reach part 5 and clause 34 on support for certain categories of migrants. There are duties around homelessness, and there will be relevant factors such as whether there are barriers to removal and whether someone is co-operating with their removal. If I may, rather than going into the details now—they are relevant; I do not seek to avoid debating them, but I think that they stray more into later issues—I am looking forward to debating the matter when we reach those points.
This intervention is simply to make sure that I understand what the Minister has just said. The Home Office is required to take into account children when it makes any of its decisions, and I understand that. However, does it follow from that that it would not serve a notice on a landlord if there were children in the family? The difficulty that amendment 89 is getting at is that once the landlord has the notice, the eviction process follows, so the only way in which the Home Secretary would be able to consider children would be by not serving a notice on the landlord. Is that what he means?
That is what I mean. The point is that children may be involved through the family returns process, and therefore, it may be appropriate in those circumstances to serve the notice, but the Home Secretary, or those who would draw up the notices and consider each individual case, would have to weigh up and carefully consider all those issues. Our overriding responsibility is to take into account the interests of children under other legislation. That is the point I am making. The hon. and learned Gentleman is right about the process, but there is that preliminary step and check that the Home Office would have to consider. However, it may be appropriate to serve a notice, for example, as I say, when children are involved in a family return and are viewed in that overall framework.
Many cases will not get to court as the landlord can offer to transfer the tenancy to the remaining legal tenants, or to enter into a new tenancy with them. The measures also contain a discretionary power for the court to transfer the tenancy rather than award possession on the mandatory ground if the judge thinks it is appropriate to do so.
The mandatory ground for possession recognises that the Home Office notice is a clear statement of immigration status; it is not necessary or helpful for a court to enter into its own additional assessment of the reasonableness of making a possession order, which would be the effect of making this a discretionary ground. I look forward, however, to further discussion on the specific eviction provisions when we reach our consideration of the relevant clauses.
I want to take a slight step back to the issue of discrimination, which we touched on before the luncheon period. Sadly, it remains a fact that there is discrimination in this country, in a number of different forms. The hon. Member for Sheffield Central made important points on the manner in which we should seek to confront that and on the fact that it is unacceptable. There is common ground across the Committee on those general points.
The question I posed to the hon. Gentleman—I note that he thought it was not necessarily relevant—was on the logic of where I thought his comments were going. If he says, for example, that a check on the right to work is not acceptable, because of the issues that he was elucidating, he is entitled to hold that view. Equally, I was checking with him whether that was where his logic was taking him. He can obviously speak for himself; I would not wish in any way to impute something or put words into his mouth.
The point I make is that there is a policy objective, as I have indicated, in seeking to ensure that when properties are on the rental market, they should primarily be for people—we would argue that the regulations and process behind right to rent is intended to achieve this—who have the absolute and clear right to be in this country, recognising the shortages of property and the need for prioritisation. Similarly, there are arguments as to how that might either encourage people not to come to this country or to encourage their removal as part of an overall removal framework. So there are different policy objectives in that. The third element is, as I indicated before lunch, how the information that can be garnered through right to rent checks, and collaboration between immigration enforcement and local authorities can have a direct benefit in challenging rogue landlords and raising standards in letting property. We see all those objectives in the concept behind the original right to rent scheme. That is added to with the extra criminal offence in the clause, albeit with the enhanced test that needs to be applied in parallel with and reflecting the points that we discussed previously about illegal working. A suite of mechanisms is in place to raise standards within the property sector, as well as in other sectors.
The sad reality is that discrimination happens in the workplace and when renting a property. Indeed, the Home Office study showed that there was no distinction between the two test areas—the area where the right to rent scheme was in its first phase and the area where the right to rent scheme was not in existence. That for me is what things come down to. Yes, of course we should be confronting discrimination, hence we have specific guidance on the operation of the right to rent scheme to ensure that it is not operated in a discriminatory way. The guidance underlines the sanctions that can be brought against those who are shown to be discriminating. That is right and it is why other legislative measures are in place to underline it.
Given the Home Office study, however, and the blend of evidence—it was not one single thing but a host of elements that led to the comments in the evaluation, whether surveys, mystery shopper exercises, focus groups or direct engagement—our conclusion was that the initial phase of the right to rent scheme had operated effectively and appropriately and that there was no hard evidence that the scheme contributed or added to discrimination. That is our standpoint and the reason why we have made our judgment. I appreciate that I am straying slightly beyond the ambit of the Bill, speaking more to the 2014 Act than to the specifics of the proposed offence that we are debating, but there is some linkage, which is why I thought it appropriate to respond to some of what was said in the initial debate.
The Minister is looking at things very differently from how I see them.
The Minister made a good point about discrimination—it will be harder for landlords, for example, to discriminate, because people will be able to say, “But I have ticked the check list and I have the passport or whatever.” However, it is hard to prove discrimination. If five people are going after one place—it is rarely only five—what would the potential tenants who are discriminated against do? They will not take the landlord to court. They might have evidence in their mind that they have been discriminated against, but what will they do with it? How successful would any case be?
That was not my main point, which is—
Order. Interventions have to be shorter than this. Let the Minister deal with the first point, have a breather and then come back to the second one.
The hon. Lady makes some important points about discrimination. The Equality and Human Rights Commission has an important role to play and there are remedies potentially available under the Equalities Act 2010, but I suggest that that is part of a broader debate about how we continue to confront discrimination in all its forms by providing appropriate remedies. That is a slightly different debate from the one that we are having in Committee about right to rent checks and the criminal sanction that we are debating in this group of amendments.
I will move across and take an intervention from the hon. Member for Sheffield Central.
I thank the Minister for inviting me to intervene, in response to our earlier discussion. Nobody would dispute that we are at one on seeking to avoid direct or indirect discrimination. We therefore need to take care of the consequences of any legislation we put in place.
I want to test the Minister with my earlier remarks again. Is he really satisfied that the evaluation provides us with sufficient comfort that such discrimination will not take place? The Home Office’s own commentary on the evaluation states that
“the tenants survey… should be read as primarily reflecting the views of the student community, rather than being generalisable to the wider tenant group.”
The Home Office has therefore said that we cannot draw lessons from this about the private rented sector as a whole. The Home Office has also said in relation to mystery shopping that
“statistical significance testing was not conducted on the data due to the relatively modest number of individual mystery shops completed at a sub-group level.”
It goes on to say:
“Small sample sizes inhibit the ability to draw robust conclusions”.
Does the Minister accept that there is cause for reflection about whether this provision gives us sufficiently robust assurance that there will not be discriminatory impacts?
In response to the hon. Gentleman’s point about the tenant surveys, if we had simply done online surveys, there might be an issue, but there were also 10 separate focus groups that involved landlords, letting agents and tenants. If we were trying to base this on a single source of evidence, he might view it in that way, but the evaluation was based on multiple sources of evidence.
As the analysis highlights, there were multiple research methods, including online surveys, interviews and focus groups, as well as mystery shoppers and other steps. The evaluation did not find evidence of discrimination as a result of the scheme. Because multiple methods were used and in view of the results of the findings, the evaluation does not give me pause for thought. Rather, it indicates to me that the first phase of the scheme has produced the results that we hoped for and expected, and that we can move on to national roll-out.
I want to explore this a little. Does the Minister not accept the evidence that we heard from David Smith of the Residential Landlords Association? He said that landlords would become risk averse and that, as a result, we would see discrimination against people whom landlords perceive as non-British? Often, there will not be evidence of discrimination, because it is far more subtle than that. People who are discriminated against often do not come forward to say so, and landlords themselves are not going to say, “Yes, we’re being risk averse. We’re discriminating.” Is it worth the risk of introducing this part of the legislation, or is it better not to introduce it at all?
Glasgow North East—how could I forget? The hon. Member for Glasgow North East said that because of her name, property not might be rented to her. A similar point is now being adduced by the hon. Member for South Shields. The point is that, sadly, discrimination would happen anyway if the landlord was not minded to rent for that reason. It is nothing to do with the scheme itself, which is simply about identifying individuals. If we are talking about a name, a racist and discriminatory landlord would, sadly, act that way anyway. That is my point. We have the right to work check and we wish to extend the right to rent check. But I think the hon. Member for Glasgow North East had another point to make.
The point I wanted to make has been made, but possibly has not been understood by the Minister. Yes, there are people who will discriminate anyway, but the Residential Landlords Association has said that its members were fearful that they would be forced, for fear of committing a criminal offence, to go the other way and behave in what they called a racist way. There are people who already behave in that way; we are referring to people who do not want to do so, but who say that fear of the law or not understanding what is required under the law will make them behave in that way.
I want to press the Minister on the point about assurance raised by my hon. Friend the Member for Sheffield Central. The Minister pointed to the focus groups, but we heard evidence from Richard Lambert, the chief executive of the National Landlords Association, who has huge experience in the field. He said:
“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.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 63, Q139.]
He went on to mention the point about university students. He was saying that if we want to evaluate the policy we have to do so over a longer period. He absolutely knows what he is talking about. What does the Minister have to say to Richard Lambert, and how comforted is he by the evaluation, with the deficiencies that we say we have identified?
I do not accept the point about deficiencies. The evaluation speaks for itself. The evaluation’s overall framing—the terms and the different natures of the multiple methods that we used—was constructed alongside the landlords panel, which has representatives from a number of landlord groups, from charities and voluntary sector organisations, and from the university sector. I recall discussions with all those groups, taking them through the way in which the evaluation was constructed. That construction led to the results we have before us. It reflected points made to us. The evaluation was not deliberately constructed so as to find a favourable response—the rigour of Home Office science would have ensured that that was not the case. That is how I would respond. We judged that there should be a six-month period. We had the input of various different groups to assist us in framing the evaluation’s terms and the manner of its conducting. In my judgment, the evaluation can be relied on so we have decided to extend the right to rent scheme further beyond its first phase.
I thank the Minister for his generosity in taking a number of interventions. This is an important issue that we need to bottom out. I accept his last point about the evaluation. We may have a slightly different view on it, but he feels that we could rely on the conclusions of the evaluation. May I, then, draw attention to the comments on page 24 of the evaluation, which does accept the risk of discrimination? He referred earlier to focus groups, and that risk was identified in those groups. The document refers to
“attitudes towards potential tenants with time-limited leave”
“with one apparent instance of a tenancy being refused for this reason”.
It also refers to
“a preference for tenants whose right to rent was seen as easy to check”
“a preference for ‘lower risk’ tenants…for whom landlords felt they did not need to carry out a Right to Rent check.”
Those references are from the Minister’s own evaluation, pointing to precisely the risks that we are identifying, so if he is relying on his evaluation, is not the conclusion that the provisions of the legislation will lead to discrimination? That is what the Home Office evaluation says.
The hon. Gentleman points to a single comment. I say to him that that underlines to me the further need, as we implement further, to underline the guidance that is there and the different steps that were taken. Equally, I point him to the mystery shopper work, and not just the numbers, because it was a blend of the quantitative and the qualitative. There are two elements to this. That is why, when we look at this in the round, the steps that were taken and the multiple different approaches that were taken in the evaluation were right and important.
On the mystery shopper work, what is interesting is that it says, importantly, that none of the BME mystery shoppers felt discriminated against as a potential renter in the 166 paired encounters that took place during the research project. BME mystery shoppers received a more positive reception to their rental inquiries from agents and landlords than their white counterparts across both phase 1 and comparator locations. BME shoppers were in fact more likely to be offered a property viewing in the phase 1 locations.
It is the mixture of the different evidence that leads to the conclusions set out in the evaluation. But do there remain issues about discrimination? Yes, and I have already said that. That is as relevant in one area as it is in another, sadly, and we need to continue to confront it. I suspect that I have strayed, Mr Bone, into some of the later debates. I know that there is a debate coming up on an amendment that the Opposition tabled. We may have got into a lot of the detail of that debate already, but it underlines to me why our judgment is that we should proceed—why this criminal offence is appropriate.
In the light of my comments, I hope that the hon. and learned Gentleman will withdraw the amendment.
Before we hear from Mr Starmer, I just point out that the interventions are quite long. I know that this is a difficult Bill and sometimes they have to be long. I will be understanding on that, but we are on occasion straying slightly wide of what we should be debating, so I hope that, as we move through the Bill, we will be a bit more concise. The courtesy shown by the Minister to the hon. Member for Glasgow North East was very kind, because I can remember an occasion when he was sitting there many years ago and was called the hon. Member for “Brockenshire”.
I am not sure how to follow that, so I will not even try.
I will respond reasonably swiftly, because there has been much discussion on the various amendments. I can take amendments 71 and 87 together. As I said, they would provide a defence to landlords who are otherwise automatically criminalised. I am grateful to the Minister for saying that he will reflect on the points that have been made, but understandably there is a very strong feeling about this issue in the landlord community. Although this is to foreshadow a debate that we will have, if Government amendments 12 and 18 are passed, that will only increase the anxiety of landlords. For that reason, I will press for a vote on amendments 71 and 87.
On amendment 72, the Minister gave some assurance about how the scheme would work and kindly over lunch provided further assurances about agencies. In those circumstances, I will not press that amendment to a vote. The same goes for amendments 85 and 88, which I will not press to a vote.
The Minister has given some assurance on amendment 89 about the way the Home Office makes decisions when deciding whether to serve a notice on a landlord, but without the amendment there would not be the check that would otherwise come from the court exercising discretion. The degree of assurance that has been given is not enough, in our view. We will want to press amendments, 71, 87 and 89 to a vote.
Question put, That the amendment be made.
We now come to the next group of amendments on clause 12.
No, there are no more votes yet, because we have not reached the amendments. To explain to new Members—and apparently to some older ones: we discuss amendments grouped together when relevant, but we can vote on them only when we reach them in our consideration of the Bill.
I beg to move amendment 12, in clause 12, page 10, line 26, leave out “33C (offences: landlords and agents)” and insert “33E (offences and eviction)”
Transitional measures in the Immigration Act 2014 limited the right to rent scheme to tenancy agreements entered into after the right to rent scheme had been commenced. This amendment clarifies that these transitional measures do not apply to sections 33D and 33E inserted by the Bill.
With this it will be convenient to discuss Government amendments 13 and 14, and 17 to 21.
As always, Mr Bone, I thank you for the clear guidance you give in chairing the Committee.
Amendment 12 would prevent the transitional provisions in the Immigration Act 2014 from applying to the new clauses on evictions and offences. Amendment 18 would make it clear that the measures on landlords obtaining possession of their properties would apply regardless of when the occupancy or tenancy agreement was entered into. Amendments 13 and 14, and 17 to 20, would provide that any reference to a landlord under the Bill would mean any landlord, where there are joint landlords; and amendment 21 is a minor drafting change, the better to reflect the terminology in the Rent Act 1977. I suspect that the hon. and learned Gentleman may want to make some comments.
In relation to amendment 12, the Minister has no doubt seen the letter written to him by the Residential Landlords Association on 23 October, which says:
“The effect of amendment 12 will be that all existing tenancies in the private rented sector will now be covered.”
It then spells out what it sees to be the consequences of that:
“The threat of substantial fines or potential imprisonment will cause a great deal of concern for all law-abiding landlords who constitute the vast majority. They will want to be completely certain that those residing in their rental properties are legally entitled to do so. The only way of doing this, and to avoid accusations of discrimination, will be to check the documentation of all their tenants, whether they are UK nationals or not.”
The Residential Landlords Association is concerned that the likely response to the provision is that all law-abiding landlords will want to carry out checks for themselves on date X, when it comes into force. It then spells out the implications of that. First, the provision will place a huge burden on landlords—particularly those with multiple properties, who will have to contact each and every tenant to carry out the check. Secondly, it is concerned that
“the structures in place to provide support to landlords, unless properly resourced, will not cope.”
It references a response to a written question tabled by the hon. Member for Paisley and Renfrewshire North. It says that the Minister
“indicated that there are just 2 full time equivalent members of staff handling incoming calls to the landlord helpline.”
It then points out the potential for chaos. It cites the 2011 census figures, which show that
“16.5% of tenants in private rented housing do not hold any passport”.
The Residential Landlords Association’s big concern is that if amendment 12 is agreed to, many, if not the vast majority, of landlords will want to carry out checks on the day that the provision comes into force. That is a huge national exercise, way beyond anything that happened in the pilot or anything that would constitute the exercise if only future tenancies were included.
The Residential Landlords Association raises the concern that the provision will lead to some unjustified convictions where documentation is not easily to hand. As it says, 16.5% of those in the rented sector do not have passports. It also points out that many landlords, having done the checks, will feel compelled to report to the Home Office anybody they feel is of concern to them, which could be many thousands of individuals. It asks for two things—first, a simple, readily identifiable document that it can use; and, secondly, for the Government to outline what plans they have to increase the resources available.
There are very big concerns in the relevant sector about how the provision will work. There is a trigger date and, if the Residential Landlords Association’s analysis is right, landlords will not feel comfortable sitting back and waiting until each tenancy comes to an end. They will feel compelled to carry out the necessary checks. As it also points out, if a landlord is served with notice by the Secretary of State in relation to an existing tenant—a tenant whom they were not required to check on at the outset, which knocks out one of the points made in an intervention this morning—they become criminal from that date onwards, notwithstanding the fact that when they took on the tenant they were not required to carry out a check, and until they got the notice from the Secretary of State they would not have known that there was anything wrong with the tenant’s status. If ever there was a glaring example of why the vote on the defence that has just been taken was wrong, this is it. A landlord who has had a tenant for many years and was not obliged to carry out a check, can potentially receive a notice from the Secretary of State, which will be the first the landlord knows that there is anything wrong with the tenant’s status, and immediately become a criminal, with no defence.
The Residential Landlords Association has raised serious concerns that require, at the very least, a high level of reassurance. How does the Minister see things operating in practice? Is he saying to law-abiding landlords that they should sit back and not bother checking? Is the message that, notwithstanding the provisions, they are perfectly entitled not to check? That would give them a level of reassurance. If they feel that they ought to check, will there be adequate resources to enable them to do so properly? They are deeply concerned. Does the Minister see any merit in their concern that once they are notified by the Secretary of State they become criminals? On the face of it, that would be unjust and unfair.
I want to make an extremely short point in support of the clause. There is a strong argument for having new offences to target rogue landlords and agents who deliberately try to exploit others and who, in doing so, reduce the extent of housing stock for those who do have the legal right to be in this country.
Will the Minister help me on a point of detail? On page 6 of the explanatory notes, paragraph 13 states that the intention is
“to target those rogue landlords and agents who deliberately and repeatedly fail to comply with the right to rent scheme or fail to evict individuals who they know or have reasonable cause to believe are disqualified from renting as a result of their immigration status.”
Will the Minister explain how the nature of a repeated misdemeanour comes through in the Bill? Repeated failure to comply is a strong argument for ensuring that we have adequate legislation to combat such practices.
I appreciate the hon. and learned Member for Holborn and St Pancras raising the concerns of the relevant landlord body. A number of things flow from the provisions. I do not accept that the clause will trigger some form of requirement to check retrospectively. As I highlighted in an earlier contribution, the point is that the offence under what would be new section 33A of the Immigration Act 2014 will be triggered on two conditions: first, that the premises are occupied by an adult who is disqualified; and secondly, that the landlord knows or has reasonable cause to believe that the premises are occupied in such a way.
We come back to the previous debate on the distinction between nuisance and the higher standard that will be applied for the new offence. I do not share the Residential Landlords Association’s view and will certainly respond to it in clear terms. I know that the RLA has consistently voiced concerns about the right to rent check scheme and how this matter might present itself in the west midlands. I welcome the contribution it continues to make through its support and input to our landlord panel, but I must underline that its interpretation of the provisions in the Bill extends them in a way that is not intended.
I want to clarify this. I accept that there is no requirement to check—that is not in the Bill and I do not suggest that it is. Is the Minister saying that because landlords would have to have knowledge or reasonable cause to believe, they should not ask any questions? In other words, “Don’t ask. Don’t put yourself in a position to know and you’re perfectly safe.” Is that the message to landlords? They are concerned that they should ask so that they are regularised and within the law. I have already made the point about there being no defence if they are served. Is the Minister saying to landlords, “Sit back. Don’t ask. Don’t find out, and you won’t be caught by the knowledge provision”? That is an odd message to send.
I take the hon. and learned Gentleman back to the second condition. If a landlord has reasonable cause to believe, it may trigger that requirement. If, in some way, a landlord has turned a deliberate blind eye, or if they have somehow rented property to someone whom they know or suspect to be in the country illegally, it would potentially trigger the offence under proposed new section 33A(3). The two mechanisms will apply. From an enforcement standpoint, it is right that the legislation is framed in that manner. As he accepted earlier, the legislation will also address those egregious situations in which someone is renting out property in an appalling condition to people who are effectively in the country illegally. In essence, such landlords are exploiting them, which is why the offence should apply in those circumstances. That is the intention behind the clause, and it is why it is right for the offence to be framed in this way.
I will write back to the Residential Landlords Association to underline the sense, purpose and nature of this clause and how it will operate in the manner highlighted by my hon. Friend the Member for Norwich North. The right to rent scheme has come in, and there have been serial breaches, which in many ways reflects our earlier debate on the closure notices and on rooting out rogue landlords in some of these serious and egregious cases. The Residential Landlords Association shares that intention, and I will respond to it in that fashion.
The Minister’s approach is based on the premise that, historically, landlords would have checked, whereas in truth they did not. I can understand the situation, because there have always been checks. A landlord may have been sailing close to the wind or never have been the sort of landlord to be trapped by this or any other scheme, but their concern is surely that they have never had to go through this process before. They have never asked these questions, so they do not know one way or the other. Is the answer to them, “Stay ignorant and you are safe”?
I come back to the two points that I have already raised with the hon. and learned Gentleman. There is no requirement to carry out additional checks. This is an offence that will have to be proved beyond all reasonable doubt in the normal way and satisfy the two conditions. I have highlighted the test that needs to be satisfied on the second condition. That is the standpoint from which I take it, and it is how we continue to judge that this is an appropriate mechanism to combat the rogue issues that I have highlighted.
I spoke about the notice triggering process in our previous debate and in response to other hon. Members. I will reflect on what has been said in this debate and in the previous debate, but I draw parallels with the provisions on illegal working. An employer will potentially be committing an offence once they are fixed with knowledge about their employee’s immigration status, but obviously they can remedy the situation, so there are parallels to be drawn with that regime. I have told hon. Members that I will reflect on those comments, and I will do so.
I am struck by the Minister’s difficulty in answering my hon. and learned Friend’s question, which illustrates the potential grey area for landlords. Given that we are now creating an offence for which landlords could be imprisoned, will he outline in some detail what guidance he intends to give them to ensure that they respond sensibly and appropriately?
I will certainly respond to the Residential Landlords Association on the points that it raised. As I indicated, the intent and purpose behind the clause is that the offence is targeted, as the explanatory notes say, against those who are committing serial breaches of the right to rent scheme as well as at some of the egregious cases that I highlighted. Landlords conduct some checks; they might not be focused specifically on a tenant’s rights to be in the country or who they are renting their property to. Many use agents to conduct credit and other checks.
There is a sense that landlords in the rented sector will be vigilant. They have been or will be doing those general checks. The offence is only if they know or have reasonable cause to believe that someone in their rented property does not have the right to be in the country. We are setting a relatively high bar. We will give that clarity to the Residential Landlords Association and more generally to underline that that is the test that is being applied. I hope that, with those comments, the Committee will accept the Government amendments.
Question put, That the amendment be made.
Amendment 12 agreed to.
Amendment made: 13, in clause 12, page 10, line 38, leave out “, and”—(James Brokenshire.)
Section 37(4) of the Immigration Act 2014 makes provision for certain references in the Act to a “landlord” to mean any landlord where two or more persons jointly constitute the landlord. This amendment and amendments 14 and 17 amend section 37(4) to give the term “landlord” this meaning in new sections 33D and 33E as inserted by clause 13.
I beg to move amendment 73, in clause 12, page 11, line 6, at end insert—
“(3) Before implementing measures under subsection (2), the Secretary of State must prepare a report on the likely impact of the measures and lay it before each House of Parliament.
(4) A report under subsection (3) must include:
(a) The likely impact of measures contained within this Section on individuals who have a protected characteristic as defined in Part 2, Chapter 1 of the Equality Act 2010.
(b) The likely impact of measures contained within this Section on British Citizens who do not hold a Passport or UK Driving Licence.”
This amendment would require the Home Secretary to lay a report before Parliament on the likely impact of Clause 12 on (a) minority groups and (b) British citizens without passports or driving licences before the provisions came into force.
With this it will be convenient to discuss the following:
Amendment 86, in clause 13, page 11, line 22, at end insert—
“(c) confirm that no occupier of the premises is under 18 years of age.”
To provide protection to families with children from summary eviction under these provisions.
Amendment 70, in clause 54, page 45, line 11, at end insert—
“(4A) Section 12 shall not come into force before 1 January 2018.”
This amendment would defer the implementation of Clause 12 until January 2018.
Thank you, Mr Bone. With your permission, I will take amendments 73 and 86 together. I think amendment 70 is in the name of the Minister. I can deal with these quickly. Amendment 73 is intended to require the Home Secretary to lay a report before Parliament on the likely impact of clause 12 on minority groups and British citizens without passports or driving licences before the provisions come into force. The amendment was tabled because of our analysis of the paucity of the evaluation and the sustained concerns about indirect discrimination.
Order. I am sorry to interrupt the shadow Minister, but the amendment paper that I have says that amendment 70 is in Keir Starmer’s name.
My apologies. I was searching for it last night, and now I have found it. I gratefully adopt it, and put it back in its rightful place. Thank you, Mr Bone. I will master these procedures, if nothing else.
To a large extent, we have had the debate on why we say amendment 73 is necessary. It is an impact assessment premised, we say, on the lack of an evaluation that can give the right degree of assurance and satisfaction in relation to indirect discrimination. Amendment 86 is intended to safeguard children’s rights. It is an amendment to clause 13, which we will debate in greater detail, so I will not devote a great deal of time to it now.
The concern about clause 13 is that the process, once it starts, is that the Secretary of State serves notice on a landlord, and the landlord may terminate a tenancy when in receipt of a notice; that notice is then treated as notice to quit, and is enforceable as if it were an order of the High Court. We will debate that in some detail because it is an interesting innovation. The amendment is a limited strike at that measure, because if we are to have such a draconian scheme and children are involved, the process ought to include a safeguard and protection for children—it has almost no safeguards in it. I am sure that we can explore that.
Amendment 70 would defer the start date to 2018 to allow more time to give assurance to landlords and ensure that the scheme can be rolled out in a way that is fair and proportionate and does not lead to discrimination in any shape or form.
I would like to discuss some of the wider issues with regard to clause 12 and the right to rent. I will speak specifically to amendment 86, which my hon. Friend the Member for Glasgow North East and I have signed.
Right to rent as it stands is a dog’s breakfast, the implementation of which has been rushed, without any serious consideration or analysis of the west midlands pilot scheme. Therefore, the extensions of the right to rent provisions in the 2014 Act have no factual or evidential basis. Indeed, the only real evidence that we have suggests that the provisions have already caused discrimination and have not achieved their aims. That is not only my opinion, but that of a wide range of people from across many different groups and sectors. Giving evidence last week, Adrian Berry, chair of the Immigration Law Practitioners’ Association, said of the right to rent that,
“there has only been a very modest pilot of that programme in the west midlands. It has not been expanded nationally and here we are, post-general election, with an augmentation of that regime to impose criminal sanctions on landlords and to provide for summary eviction of people who lack a right to rent without protection of the court. We struggle to see what evidence base there is for strengthening a regime that has barely been born.”––[Official Report, Immigration Public Bill Committee, 22 October 2015; c. 106, Q223.]
Landlords and agents are united in opposition to being conscripted into a new second tier of immigration agents. The Committee sat for four eye-opening oral evidence sessions, during which parts of the Bill took a verbal battering. Richard Lambert, who has been mentioned, said:
“We have concerns about placing this kind of responsibility on landlords, who are not trained for it”–-[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 54, Q120.]
His colleague from the Residential Landlords Association, David Smith, said in written evidence that,
“given that, for example, landlords would need to be able to recognise the 404 different types of European identity documents that may be possessed by a tenant…which give holders the right to free movement”,
how can landlords possibly
“be expected to know every legitimate document from every country that proves someone’s immigration status, let alone recognise high-quality fraudulent documents, without proper training and support?”
The RLA has also said:
“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.”
All in all, that is hardly a ringing endorsement from those charged with implementing this part of the Minister’s new immigration policy.
I turn to amendment 86 and the Government’s shameful attempt to allow children to be summarily evicted by changing the wording of those named in a residential tenancy agreement from “adult” to “person”. Oxfam and Oxford University research suggests that irregular migrant children are already at risk of destitution, exploitation and social exclusion before the Bill is implemented.
We will talk about evictions when we come to clause 13, but we must note when discussing the amendment that the power to evict under this provision allows for a rapid and summary eviction process, and that proposed new section 33E(4) excludes the residential tenancy agreement from the safeguards of the Protection from Eviction Act 1977. The amendment would ensure that children are not identified as occupiers, so families with children would not be subject to a summary eviction process without the normal safeguards that protect against unlawful eviction. That would protect families with children from being made homeless, with the associated risks to the safeguarding and protection of children.
Even Lord Green from Migration Watch UK, with whom I had an interesting exchange during the oral evidence session, said that he
“would make a distinction between families where there are children present, which would surely affect the way in which they were handled”.––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 49, Q111.]
I do not expect to quote Lord Green when making my arguments too often in our discussion of the Bill, although I may return to the good Lord later on.
The eviction of children and families will have a significant impact on children’s social services, housing and homelessness departments. Local authorities, which are already under considerable financial strain, will bear the responsibility of supporting and housing families evicted by landlords who are not required to follow the normal eviction processes and safeguards. It can also be argued that this provision and others affecting children throughout the Bill contravene various articles of the UN convention on the rights of the child.
The proposition is ridiculous and I am sure that none of the Members on the Government side wants to see children treated in that manner. I urge the Minister to accept the amendment, but if he will not, will he offer an explanation as to why the Government are changing the wording to allow for this situation?
In closing I would like to touch on the discriminatory elements of clause 13. The Migrants’ Rights Network made it simple when it said that,
“the right to rent policy encourages discrimination against tenants who look or sound ‘foreign’.”
That is further backed up by Liberty’s study of the Government’s half-hearted analysis of the west midlands pilot scheme. It said that black and minority ethnic participants were less likely to receive a prompt response to an initial email inquiry than a white British participant. The evaluation report comments that this
“could imply a difference linked to the scheme”
before going on to say:
“However, it may instead reflect a change in available stock.”
That is at its best wishful thinking. At its worst, it is very bad spin.
The Chartered Institute of Housing also has real concerns about possible discrimination. It said:
“Checking immigration status is complicated so landlords may shy away from letting to anyone who appears not to be British, even if they have a legal right to live in the UK—especially if they face a jail sentence for getting it wrong.”
To conclude, pretty much every stakeholder across many sectors and all parts of the political spectrum is saying that the Government have got it wrong and should think again before they put these measures in place. I will end on the most damning quote, which is from my old pal, Lord Green. After I asked for the third time whether the Bill carried the risk of encouraging everyday discrimination against people who do not appear to be British, he answered:
“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.” [Official Report, Immigration Public Bill Committee, 20 October 2015; c. 51, Q115.]
My one last question for the Minister is: does he deny it?
Amendment 70 would defer the implementation of the measures in the Bill for two years and amendment 73 would require that the Government lay before Parliament a report of the likely impacts of the new measures. The Government have published both a policy equality statement and an evaluation of the right to rent scheme. Both are available in the public domain. For the reasons that we have debated previously, we judge that there is no good reason to delay implementation of the new measures.
On amendment 86, the Home Office takes seriously its responsibilities towards children, and the new measures take account of the need to be clear about when it is appropriate to serve notice on landlords in respect of illegal immigrant families. Clause 13 applies where all occupiers of the premises are disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement. In some circumstances, as with eviction for other reasons under housing legislation, that will mean that children are evicted along with adults in family groups.
The expectation is that persons who are in the United Kingdom without permission should regularise their position or leave. That applies to family groups as it does to individuals, but where families are involved, they will be offered advice and assistance in returning home and the Home Office will seek to engage the family in the family returns process. Families, as with other illegal migrants, will be given clear warnings that a failure to regularise their stay, to return home or to engage and co-operate with attempts to assist them to return may lead to the Home Office contacting the landlord and advising that the family may be evicted.
The measures make it clear that action can only be taken following service by the Home Office on a landlord of a notice or notices in respect of each occupier; those will only be issued when the Home Office is clear that all of the occupiers are illegal migrants and do not have the right to rent, and there is no bar to them leaving the United Kingdom. In serving a notice in respect of a child, the Home Office will have regard to its duty to safeguard and promote the rights of children. I made that point earlier. The measures also ensure that a landlord must provide at least a 28-day notice period, during which arrangements could be made by persons in the country without permission to leave the UK. Given the protections already in place, the amendment is unnecessary.
In response to the latter points made by the hon. Member for Paisley and Renfrewshire North, I do not accept or recognise a number of the assertions that he made. We remain conscious of the implementation of the right to rent scheme as we extend it out and, indeed, how we can ensure that we give clarity around the documents that might be required, in particular where someone might not have a passport or a driving licence. That is something we remain focused on in the detailed implementation of the scheme. The landlord panel is indeed actively assisting us with that.
To be helpful to the shadow Minister, amendment 86 will be voted on in clause 13 and amendment 70 some way later on in our consideration of the Bill.
Ordered, That further consideration be now adjourned. —(Charlie Elphicke.)
Adjourned till Tuesday 3 November at half-past Nine o’clock.
Written evidence reported to the House
IB 22 The Law Society of Scotland
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