Committee (4th Day)
Relevant documents: 22nd Report from the Delegated Powers Committee, 8th and 12th Report from the Joint Committee on Human Rights, and 6th Report from the Constitution Committee.
Schedule 3: Excluded residential tenancy agreements
54ZZA: Schedule 3, page 62, line 4, at end insert—
“(3A) The third condition is that the building is covered by a code of practice for the management of student accommodation recognised under section 233 of the Housing Act 2004 (approval of codes of practice with regards to the management of HMOs etc).”
My Lords, we return to residential tenancies and come to a group of 12 amendments, of which the first nine are in my name, beginning with Amendment 54ZZA. I apologise for the number of amendments, but I will be brief in setting them out this afternoon. I am helped in speeding up the process by the very helpful points made by the Minister in our Committee session on Monday.
All these amendments are concerned with the practicalities of requiring landlords to check the immigration status of their tenants. We are past the stage of arguing whether the whole idea of imposing this new burden on landlords is a good one; rather, these amendments attempt to make the concept more workable and reduce the unfortunate consequences for tenants that it could create.
Amendment 54ZZA is about letting to students. The Minister made two welcome announcements on Monday. The first heralded the Government’s plans for an initial stage—I hope I am allowed to call it a pilot—in a single place to test the practicalities of the new scheme. The second announcement was that student lettings that are controlled, owned, managed or arranged by a registered educational institution will face no further need for immigration checking by landlords. This is obviously right since the student has been thoroughly vetted already by the higher education establishment.
Capturing the wider definition of what comprises a student letting will need a new form of words. The new clause to come before us on Report may go beyond the scope of my amendment, and the Minister may tell me that Amendment 54ZZA is now quite redundant. But perhaps the Government’s revised measure, which I think will pick up student digs that are lettings in ordinary street properties, may also benefit from the formula in my amendment, which comes from the experts at the British Property Federation.
I will explain Amendment 54ZZA. Sensibly, paragraph 11 of Schedule 3 already excludes specialist lettings to students in higher education, since they have been thoroughly checked by the university or the higher education provider. The Bill exempts traditional halls of residence using the definition that is used for council tax purposes. That definition dates back to 1991, since when there has been extensive private sector provision of purpose-built student accommodation. Amendment 54ZZA extends the exemption from the traditional university halls of residence to embrace privately provided purpose-built student halls—the smart new blocks of student flats now appearing in many university towns and cities.
To avoid going too wide, the amendment specifies that the provider must be a body covered by a code of practice officially approved under Section 233 of the Housing Act 2004. This confines the extension to private sector providers that are properly recognised as managing bona fide student accommodation in partnership with higher education bodies. The amendment avoids the bureaucracy, hassle and duplication of effort for student accommodation providers, who would otherwise have to recheck the status of the students they house when this has been done already by a higher education establishment.
Now that the Minister is willing to extend the exemption for student lettings—I know colleagues will be very pleased with that—I hope that the definition in my amendment covers at least some of the ground. To cover more of that ground, will the Minister comment on the idea put forward by the noble Baroness, Lady Hamwee, on Monday? She suggested that the perfect solution to this problem might be to allow the letter that universities issue to students to exempt them from council tax to also be proof of their exemption from immigration checks. Such an approach would exempt the great majority of students and their landlords, bringing comfort to the many Members of your Lordships’ House who are very keen to ensure that the new measure does not deter overseas students from choosing the UK for their studies.
Let me go swiftly through the rest of my amendments in this group. Amendment 54A would add to the list of exclusions from the Bill’s obligations on landlords, under the list of “excluded residential tenancy agreements”. I know that Crisis has been pleased with some helpful changes already made to the Bill, but tenancies organised for people who are or will be homeless and are placed in the private sector by a responsible body need to go on the list of exclusions in Schedule 3. Organisations such as Crisis are funded by the Department for Communities and Local Government to persuade landlords to take on homeless or potentially homeless people—indeed, the DCLG last week announced extra resources for this valuable work—but, at present, the landlord will still have responsibility for checking the immigration status of these nominees, even though they have been vetted already by the local authority, a charity or a regulated housing association.
The amendment would excuse the landlord from the potential threat that someone whose papers are not in order and who turns out to be here illegally renders the landlord subject to a fine. The arrangements for placing homeless households in the rented sector are extremely important in giving confidence to landlords to take in vulnerable tenants, including those leaving prison, who are perceived to be a high risk. It is not easy to negotiate with landlords who are understandably hesitant to take in people on the edge of homelessness. Telling landlords that they will ultimately carry the can if a household is found later to be here illegally sets up a new barrier. I hope that it is not contentious to exclude placements of this kind from the rigours of the Bill. I hope that the Minister will be able to respond sympathetically.
Amendments 55B, 55D and 55E attempt to head off a major problem with the proposed arrangements: namely, the requirement on the landlord to check the credentials not just of the tenant but of other people who come into the accommodation with the tenant, usually family members. These people are not named in the tenancy agreement and the landlord has no direct relationship with them. Here, the Bill introduces a duty for landlords that goes well beyond the comparable duty for employers. Employers are not required to make inquiries about a potential employee’s family or friends, but landlords will be expected to make thorough checks in relation to other people over the age of 18 who live with the tenant. This is fraught with difficulty and, of all the many reasons that a landlord may avoid getting involved with a particular household and risking a £3,000 fine, this scenario is about the most off-putting. The amendments would remove this extra and unreasonable duty on the landlord and confine the obligation to checking the status of the tenant or tenants who are on the tenancy agreement.
Amendment 55H would remove the obligation on the landlord to notify the Secretary of State of a change to the status of a tenant whom they have already housed. It would take away the need to recheck their immigration status after a tenancy has started. Instead, the landlord would have to reconsider the tenant’s status only when the tenancy ends and the tenant wants to renew it. Once a tenancy has been signed, the landlord clearly would not wish to engage further in these checks, and it seems a step too far to require landlords to look out for and report so-called post-grant contraventions, except when the tenancy comes up for renewal.
Amendment 55R would enable the Secretary of State to give extra time for a landlord who has received a penalty notice to bring forward an appeal if the prescribed 28 days appears in the circumstances to be too short a time. With the complexities involved in these matters, the Secretary of State might well be glad of some flexibility here in the future.
Amendment 56F addresses the tricky issue of the landlord’s obligation to establish whether a person is over 18 years old. We all know that supermarkets find it very difficult to verify a customer’s age when a young person wants to buy alcohol or tobacco. My previous amendments would remove the onerous obligation on landlords to account for the immigration status of people who are not on the tenancy agreement and with whom they have no direct dealings. This amendment is a safety net if the duty to check up on others in a household finds its way on to the statute book. It puts the onus on the Secretary of State to set out an order which makes clear that as long as the landlord or their agent takes specified steps to establish the age of the occupiers, they will not be in danger of being penalised later. Without the amendment, landlords will go in fear of a transgression, despite their best efforts, and the presence of teenage children in a household will present another reason for a landlord not to house a family for fear of breaking the new law.
Amendment 56H is my final amendment. I think it could be helpful in tackling the central problem here: namely, that respectable landlords will henceforth be extremely wary about accepting anyone for a tenancy who just possibly might be a migrant without the correct papers. The amendment shifts the burden of checking out tenants’ credentials to one or more bodies which take on that responsibility and are approved by the Secretary of State for that purpose. Those verifying bodies would no doubt charge for the service, but could make the cost quite modest through economies of scale, dealing with many hundreds or thousands of cases, and would become absolute experts in ascertaining who was and was not an illegal immigrant. As long as the landlord had received the all-clear from the approved body, which might be part of a trade association or a credit referencing agency, the landlord would not need to worry about the new liabilities that they face.
The concept of a body approved by government taking responsibility for a key aspect of the affairs of private landlords is the model used for handling tenants’ deposits. Initially three and now four agencies have been cleared to provide tenancy deposit schemes to deal with all the tricky aspects of collecting and returning deposits. Similarly, the Secretary of State approves bodies to provide ombudsman services to the sector. A similar approval mechanism could lift the burden on landlords struggling to undertake accurate immigration checks and would, I think, reduce the cost to landlords, which may get passed on to tenants if agents are involved, from about £50 a shot to, perhaps, £25.
That measure would be particularly helpful to the Home Office inquiries team, removing a lot of the pressure of fielding queries from amateur landlords up and down the country who would no longer need to bother the Home Office. That arrangement would, I hope, achieve everything that the Government want from this part of the Bill, while reducing a significant financial and administrative burden for the Home Office and greatly reassuring good landlords that they need not turn away people who might just be here illegally, because the checking has been done for them.
I hope that that idea appeals to the Minister, and I am grateful to Richard Jones of the Residential Landlords’ Association for devising it. I look forward to hearing the Minister’s response to the amendments.
My Lords, I have three amendments in this group. The noble Lord, Lord Best, has raised a lot of important issues—in some cases as to principle and in some as to workability, with which all of us have been concerned.
On his Amendment 56H, allowing for verifying bodies, it speaks volumes about the views of the Home Office, which we have heard in this Chamber and outside it, that such a suggestion has been brought forward. One sees the comments about the current standards of the Home Office and one looks forward to much improvement, but one can see how such a proposal has come about. I suspect that some such agencies might well grow up outside the statute if we do not provide for them. I can imagine what the Minister may say in response to the amendment—that no third party can be authoritative on this—but I can envisage small landlords casting around for an organisation that can help them with this work.
The first of my amendments, Amendment 56J, is much the same as the noble Lord’s amendment with regard to a person that a landlord thinks is under 18 but in fact turns out to be an adult, for the reasons that the noble Lord has given. Amendments 56K and 56L are to Clause 32. The first would ensure that the Secretary of State could increase only the range of agreements not treated as falling within the scheme—in other words, could increase the range of exemptions but could not bring in through this mechanism agreements that would otherwise fall outside the scheme—while the second would ensure, similarly with regard to occupants, that the Secretary of State could increase only the range of people treated as not occupying premises but could not bring in agreements that would otherwise fall outside the scheme.
I understand that a degree of modification needs to be provided for in the light of experience if the pilot—I shall continue to call it a pilot—proves to be unsuccessful. However, we should understand to whom the scheme is intended to apply at the outset—to whom and to what, I suppose. I am grateful to the noble Lord for raising such a range of issues. He is expressing the concern that we have heard already from all around the House.
My Lords, I share the view of my noble friend Lady Hamwee about the useful contribution made by the noble Lord, Lord Best. Some of us know what a tremendous contribution he has made over the years, both to the whole position of immigrants to this country and, not least, to the position of people seeking to study at our universities.
I want to ask two questions. The first is about the desperate pressures on the housing market, not least in London, which remains a magnet for many overseas students. This was exemplified again to me this morning when in one post I received no fewer than two letters from distinguished estate agents in London begging me kindly to sell my rather humble single-bed flat, in a rather seedy part of Victoria, on the grounds that I would make thousands of pounds of profit if I did so. Such lettings or sales almost certainly do not go to students in any situation. Given that there is a huge pressure of demand on the market, not least from people working in this country, often in a fairly short-term capacity, let alone from the literally thousands of houses in London that are now being let or sold to overseas investors who have no intention of living in them or inhabiting them—as anyone can see who takes a good look at Highgate or some other fashionable areas of London, many of those properties remain empty for several years on end—it really is something of a scandal that that is the way that the housing market has played out. It is becoming close to impossible for many overseas students of modest means to find anywhere to live at all, which is why we see increasing numbers of people packed into overcrowded rooms, flats or basements in a desperate attempt to find somewhere to live.
We have been helped by the noble Lord, Lord Best, and my noble friend Lady Hamwee, who gave specific and concrete suggestions about ways in which this situation might to some extent be eased. In the end, it can be seriously eased only by a deliberate attempt to create more student accommodation, but that is not going to happen in the very short run, and therefore anything that exempts accommodation specifically directed to and planned for students is of great benefit in this desperate situation.
Secondly, I want to draw attention to a group who are not assisted by being specifically registered by their university and helped by student unions and the like. I reiterate what I said in an earlier session of this Committee when I pointed out that no less than 33% of academics currently serving in Russell group universities come from overseas. The figure is about 28% for universities as a whole. These men and women are here because they are outstanding in their line of study or profession. They bring to that study their knowledge of another part of the world and the ways in which in different cultures different answers are found. They do not have the benefit we have given to overseas undergraduate students who are registered at their university. They are mostly out there looking for accommodation for themselves, and many of them have no knowledge of this country or its housing market and are quite easily persuaded to make not very sensible arrangements.
Yet let us be quite clear that, without those academics, the quality of first-class higher education would deeply suffer because it is increasingly a global situation and a global statement about the quality of a university. Anybody who knows the Russell group and some of the outstanding new universities will know that it is that huge input of talent and ability from other countries that makes a university not just a good place but a great place. What the noble Lord, Lord Best, has proposed, not least in his final amendment, could be very helpful to people who are without the kind of expert advice that undergraduates can at least hope to get. It is essential that we recognise the importance of tackling this matter.
The noble Lord, Lord Best, referred to children. Many academics will be married with children and will want to bring their dependants with them. The noble Lord, Lord Best, pointed out the problem of trying to sort out the migrant status of family members who have come with the head of household who is taking up an academic position, particularly children over the age of 18 who still live with their parents, as many do abroad. How big an obstacle are we placing in the way of such men and women unless we adapt and attract the kinds of solutions that he and my noble friend have tried to put forward this afternoon?
I shall not continue at greater length. Members of this House will know of my huge concern about one of the greatest and most effective exports of this country. Incidentally, it is one of its sources of innovation and enterprise with no less than one in seven new firms and 14% of new jobs being created by migrants, and those figures are higher than the proportion for their British-born equivalents. They make such a huge contribution to this country’s ability to maintain and improve its economic position that it takes my breath away that we should have this kind of legislation before us. I shall not pursue that matter, but I hope the Minister, for whom I have great respect, as we all do, will look very seriously at the proposals in this area of the Bill to deal with the dangers that could arise from the insistence on tenants being, effectively, monitored and overseen by landlords with all the rather frightening consequences of that concept.
When the noble Lord, Lord Best, with his experience and expertise on housing, speaks on issues such as this, we all do well to listen. I am sure the Minister has taken on board his comments. On the issue he raised about students, the Minister has made clear that the Government will bring forward an amendment to address this issue, and I welcome that. I hope he will listen, take on board and incorporate the comments made by the noble Lord, Lord Best, which are very helpful indeed. I welcome the fact that the Minister has listened and intends to table an amendment. I also welcome this recognition by the Government of how clumsy this provision in the Bill is, and the consequences of that. I will not speak at length today, because I spoke at length on earlier amendments covering the same issues.
The amendments tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Best, address, as the noble Baroness, Lady Hamwee, said, the principle, practicality and workability of the provisions on landlords. Notwithstanding the comments of the noble Baroness, Lady Williams, the provisions do not just affect students, as I know she has acknowledged. These provisions on landlords will impact on many people to the detriment of many UK-born and British citizens and those who have a legal right to be here. I welcome the opportunity to look at some of the practicalities.
I notice that the impact assessment for the Bill comes straight to one of the points made by the noble Lord, Lord Best. Under the heading, “What is the problem under consideration? Why is government intervention necessary?”, the impact assessment comments:
“Housing is a key enabler of illegal migration. … Government intervention is necessary to deter illegal immigration”.
I disagree with that. The problem here—the concerns that have been raised in the amendments—is about whether it is the landlord’s role to take action to deter illegal immigration in the way that the Government suggest.
What I am concerned about is highlighted by the comments of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Best. It is becoming increasingly clear what limitations, pressures, problems and responsibilities these provisions are going to have and what impact they will have on those entitled to live and work in the UK, including UK citizens. The noble Lord, Lord Best, and the amendment of the noble Baroness, Lady Hamwee, have highlighted concerns regarding the impact on landlords.
The Government estimate in their impact assessment that they will take fines of £6.8 million from landlords over the next 10 years. The point has been made to the Minister that that could be seen as, and could well become, a disincentive to those who currently rent out. It would be helpful if the Minister could tell us whether, given that this also includes rooms which have been rented to lodgers, any assessment has been made on the impact of availability of homes or rooms to rent in the private rented sector. The noble Baroness, Lady Williams, mentioned the letters that she has received from estate agents wanting to rent or buy her property. Anybody who has lived in London will have regularly received such letters from companies offering vast amounts of money to rent a room. Can the Minister tell us whether any assessment has been undertaken of the impact that these proposals could have on the availability of properties or rooms to rent?
I will not go through each amendment—I raised a number of questions which I had on Monday—but the amendments would bring some clarity to the issue. If we take the questions raised by these amendments, those that will be raised in the next group of amendments, those that were raised in yesterday’s discussion on whether the clause should stand part of the Bill, and proposals for a pilot—I welcome the Minister’s letter and look forward to discussing the Government’s proposals for a pilot—it is increasingly clear that there is little to commend these clauses. I hope that, in his response today, the Minister is able to address the concerns that have been raised by noble Lords here today and some of those still outstanding from our previous debates.
My Lords, I will make two brief points. First, I welcome the broadening of the exemption for students which my noble friend outlined late in the debate on Monday. That seems to be relevant to Amendment 54ZZA, and we all look forward to seeing the new wording on Report, recognising the importance of our student population.
Secondly, I will comment on the idea outlined by the noble Lord, Lord Best, for an approved agency arrangement. This may be a good idea, but it will of course come at a cost. I would prefer a simple system that would allow landlords to do the checking themselves by having proper guidance for small landlords, both through the normal trade associations and guidance and on gov.uk. In that way enforcement can be minimised, fines avoided, and compliance maximised. The trial run that all noble Lords seemed to be agreed on in the earlier discussion in Committee should be used to test the workability of these important proposals.
I am delighted that we now have another name for the rollout and the trial run; we are accumulating quite a vocabulary of descriptions for this important part of the development of this legislation. I am grateful to all noble Lords who have spoken. We have moved down to some detail, which it is important that we use Committee to tackle. I am grateful in particular to the noble Lord, Lord Best, for tabling his very thoughtful amendments, and to my noble friend Lady Hamwee for hers. They are clearly intended to improve this part of the Bill. I welcome the opportunity I had to meet with the noble Lord, Lord Best, as I explained already, and with a number of interested bodies to discuss these provisions. My door remains open to the noble Lord; some of the suggestions he has made today require further exploration jointly between government and their advocates, so I hope that this will be a beginning.
This group of amendments includes some interesting suggestions, which I will reflect on further, as is right and proper. However, some of them would represent a retrograde step. We can take things in a different direction and further forward than perhaps the amendments aim to take them. I remind noble Lords that the aim of the legislation is to require landlords to conduct immigration checks on all adults who it is intended will occupy the property when the tenancy is created. It does not require all such adults to be named on the tenancy, although that may become common practice in future, and the Bill allows landlords to delegate the task of performing checks to a letting agent. The checking requirement applies only where the property is occupied for rent or lodging as the person’s main or only home.
That is an important measure, and the Government are right to identify housing as one of those facilities which, if controlled by measures as provided for in the Bill, will serve as a deterrent to illegal immigration. I am sure that the noble Baroness will share that view, just as both parties agreed that employers’ checks on people seeking work have been effective in that regard.
The Bill does not require the landlord to monitor who is living at the property once the tenancy has been created. While some landlords already require their tenants to inform them of changes to the composition of the household, some do not, and we recognise that. Where a tenant sublets the property or accepts a lodger without the landlord’s knowledge, that tenant effectively becomes the landlord under the scheme, so to a degree the landlord’s responsibility applies to the person who occupies the house as a principal home.
It is not a question of payment, but of whether that is their principal or main home. If it is not, and they are just a guest for the weekend or for a month, or whatever, that would be a different matter, but if it is the person’s main home, whether there is payment is not relevant to their status. I hope that that is clear.
On the same point, it is common in leases and tenancy agreements to provide a prohibition against subletting or having a subtenancy. In some of the less formal arrangements that the noble Baroness and I are aware of—I am thinking now about the head landlord and tenant—it may not be normal to provide for that, even though a mortgage company that has lent on property would expect it. I hope that landlords, as we understand them in the normal way, would not be penalised if they had a fairly informal arrangement with a tenant of the sort that would fall within this that did not preclude a subtenancy or sublicence. I hope that I am being clear about that. I can see that there may be more calls on what the landlord should do by precluding the possibility of somebody coming in and lodging or having a sublicence without the landlord himself knowing—and I would not like a landlord to be penalised because of that. It is an allied point; I am seeking for there not to be more requirements on the landlord.
I am sorry because, as my noble friend Lord Attlee whispered to me, “You’re wrong”. He is so delicate in these matters. But I am wrong. This transfer of responsibility occurs when rent is paid; when no rent is paid, that is not an arrangement under this scheme. I hope that that is understood, and that it helps to clarify the border as to where the reporting happens.
I am grateful to the Minister and thank him for clarifying that—we all make mistakes. Does that not seem some kind of a massive loophole in the law—the landlord will have to undertake all these checks to ensure that the landlord’s tenant is a legal citizen of this country and entitled to stay, but the person who is renting the property could then allow guests to stay permanently, with it as their main home and with no payment? It would be possible for a rogue landlord to charge exorbitant rent to one person and for the others to stay for free. There seem to be complications around that, allowing a significant loophole in this legislation, if I am correct—but I may be wrong.
Yes, a further elaboration of the point is that the restriction applies only when the person is under an agreement, formal or informal, where the tenant pays rent. The immediate landlord is responsible; if the tenant sublets without the superior landlord’s knowledge, the tenant is responsible for the subtenant. This is quite convoluted language, if I may say so, and it might help noble Lords if I wrote to clarify that point. I see the importance of making it clear where the responsibility lies in these matters; I thank the noble Baroness for raising the issue in the first place and my noble friend Lady Hamwee for her comments.
I am grateful—that is very helpful. But perhaps the Minister could address the point made by the noble Baroness, Lady Hamwee, and myself about a loophole. It does not have to be the market rent; it could be an exorbitant rent to one tenant to allow others to stay there for free. If he could address in the letter whether that is a loophole, that would be very helpful.
Yes, I will do it in the letter. I feel that if I try to do so here today, I might get into even deeper water than I am already swimming in.
Home Office immigration enforcement will enforce the scheme in the normal course of its activities. Where illegal immigrants are detected during illegal working operations, when arrested for criminal offences, or as a result of intelligence, immigration enforcement will investigate where the person is living. This will include establishing whether the new duty on landlords has been breached, who owns or controls access to the property, and who is collecting the rent. That ties up with the consideration that the noble Baroness asked me to look at earlier.
The checking requirement will apply only to adults, and the person’s age as a matter of fact will be apparent from the documents presented. The system of document checks has been adjusted, following consultation with landlords, to reflect closely existing check practice by landlords. Where these simple checks are completed, the Bill makes it clear that the landlord will have an excuse, and therefore will not be culpable under the provisions of the Bill. Only original documents can be accepted in view of the obvious risk of forgeries, as noble Lords will understand.
Earlier in the Committee’s deliberations—I am grateful for the comments of my noble friends Lady Neville-Rolfe and Lady Williams of Crosby—I announced the Government’s intention to bring forward on Report an amendment to broaden the exemption for student accommodation owned, managed or arranged by higher education institutions in all parts of the UK. Obviously, we await the full detail of the amendment, but I think this very much meets the point that noble Lords have made. This is an important area for two reasons: first, because it reinforces the message that I am trying to get over that we want to make it clear that we are supportive of the university sector in this country; and, secondly, because it introduces the concept that there can be no need for double checking in this area given that the university has already satisfied itself that its students are properly entitled to be in this country. I note the suggestion about the engagement of Section 233 in the amendment of the noble Lord, Lord Best, and I have already noted my noble friend’s contribution on the council tax exemption point.
The noble Lord, Lord Best, has raised concerns about people who are in need of support at a time of homelessness or the threat of homelessness. The exemptions in Schedule 3 already deal directly with the work of hostels and refuges and the work of local authorities, where they are providing assistance to comply with their duties, or are providing assistance on a discretionary basis to a person who is homeless or threatened with homelessness. Therefore, we have made this clear in the Bill.
The noble Lord makes a very interesting suggestion in advocating, and elaborating on, a role for a verifying body to support small landlords in performing the required checks. I say, in the modest way that Ministers do, that I undertake to reflect further on the merits of this suggestion. This is an interesting matter for us and the noble Lord to discuss. The Government want these arrangements to be workable in practice. I think my replies have shown that the Government see this as an important aspect of policy but it must be practical and work for landlords and people who want housing. We also want these arrangements to be successful in achieving the policy objective of deterring illegal migration.
I think I have made it plain that I want to engage with noble Lords. I hope that, in the light of the reassurance I have given, and, indeed, my promise to write in detail specifically on the division of responsibility—that is essentially what we are talking about in relation to the definition of a tenancy and landlords’ responsibilities—the noble Lord will withdraw the amendment.
Yes, I can confirm that. An agricultural tenancy or a house occupied in connection with any employment would clearly be covered. However, it should not be forgotten that the owner of that property, as an employer, would have already checked the person’s entitlement to be in occupation.
My Lords, I am grateful for support for the amendments in differing degrees from all around the House, including the noble Baroness, Lady Williams of Crosby, who makes the point that it is already incredibly difficult for overseas students to find anywhere to live that they can afford in London—and in other cities. We must not make life more difficult by putting up a new barrier that puts landlords off; that is such an important and fundamental point.
I am grateful to the noble Baroness, Lady Smith of Basildon, who raised a couple of significant points. The Rent a Room scheme that we already have is getting a bit tired; this is the opportunity to let a room in your house and pay no tax—indeed, fill in no forms and just get on with the letting on your own. It will make a difference to the individual who owns that property if having to check the immigration status of anyone whom they take in is added to the requirements on them. We need to look at the Rent a Room scheme again. The tax threshold—the amount you can receive in rent from someone in your own home—has not been changed for something like 11 years; we have to revise that. This is an important moment to look at that. The case is similar for lodgers and guests—these look like awfully murky waters. The Minister said that he would respond in writing, which will be helpful.
The noble Baroness, Lady Neville-Rolfe, picked up on having approved verifying bodies that take all the hassle away from landlords—indeed, that take it away from the Home Office. However, she felt that it would be better to produce guidance and let landlords do their own thing. A voluntary scheme means that landlords who want to use it would just get on with doing so. Some 60% of private renting is through local agents. Rather than agents having their own mini-schemes—how many agents will become expert enough at this?—a central approved body that can verify people’s status would cut the cost to the landlord, and that might be passed on to the tenant. It would give landlords greater reassurance. I declare an interest: I chair the Property Ombudsman, which looks after letting agents and estate agents and the complaints about them. In the world of property ombudsman-ery, there is a system of the Secretary of State approving certain bodies as ombudsmen. That works well: it means that people can join a scheme knowing that it is properly approved, so people can stand behind it. Applying that technique in this field could be a clever move to help everybody to get this right.
The Minister made some important points. He underlined that the student lettings amendment that will be brought forward on Report will be a really good one. We will look at it with care, but it sounds as though it will do a great deal of what we hope that it will. On people being placed with a private landlord by an agency such as Crisis, a charity that takes potentially homeless people and persuades an individual landlord somewhere to take them on, he was not quite able to give me the reassurance that I had hoped for that that would be treated—as I understand it—like a hostel specifically for the homeless. These are specialist schemes in which the vetting will be done by Crisis. To say to the landlord, “I am sorry, we are unable to take away from you the responsibility for checking the migration status of the people we are bringing”, just adds another difficulty when it is difficult enough to get landlords to take in people, even with rent guarantees and other useful techniques. It would therefore be good to talk about that further.
I am grateful to the Minister for earlier discussions and his agreement that we should jointly explore some of these matters further. I look forward to such meetings and, in the light of his reassurances, I beg leave to withdraw the amendment.
Amendment 54ZZA withdrawn.
Amendments 54ZA and 54A not moved.
Schedule 3 agreed.
Clause 16: Persons disqualified by immigration status or with limited right to rent
Amendment 55 not moved.
55A: Clause 16, page 16, line 4, after “if” insert “P is—
(a) an asylum seeker or the dependant of an asylum-seeker as defined in section 94 of the Immigration and Asylum Act 1999;(b) a person provided with accommodation under sections 17, 20, 23C, 24A and 24B of the Children Act 1989 or otherwise under that Act;(c) a person provided with support under Schedule 3 to the Nationality, Immigration and Asylum Act 2002 to avoid a breach of the European Convention on Human Rights;(d) and—(i) an applicant for or a person holding a Tier 4 visa or holding a certificate of acceptance of studies issued by an authority-funded educational institution; or(ii) an applicant for or a person holding a student visitor visa for a period longer than six months;(e) a person who is resident outside the UK and is studying English in the UK who is accommodated in homestay accommodation;(f) ”
My Lords, Amendment 55A is the first in a group of 12 amendments all about who falls within and outside these provisions. This may be stretching it a little bit, but something occurred to me when listening to the noble Lord, Lord Best, talk about a proposed verifying body. However, I have completely lost my train of thought. I had a really good example to support that proposal and it may come back, but I will move on to the specific amendment.
In Amendment 55A, the first paragraph would provide for not only those asylum seekers whose accommodation is provided by the Home Office—they are covered by Schedule 3—but asylum seekers who make their own arrangements for accommodation. It seems to me that they should be excluded also. On a practical level, the state might be forced to provide for those who could otherwise provide for themselves, which is one of those unintended consequences.
As regards paragraphs (b) and (c) in Amendment 55A, provision is made in Schedule 3 for accommodation from or involving local authorities, but that provision is drafted in terms of the homelessness legislation and does not cover other accommodation such as that provided under the Children Act 1989. Section 17 of that Act is used primarily to support children with their families, Section 20 to support unaccompanied children, and subsequent sections to support care leavers. Where a person is without leave to remain, they will not be entitled to social housing or homelessness assistance from the local authority but in limited circumstances a person at particular risk may be accommodated by social services under relevant legislation because of their disability or ill health.
Paragraph (d) in Amendment 55A deals with students, which I think we will come back to. I suspect that I will be pressing the Minister to go further than the amendments being dangled in front of us may go, but I look forward to seeing them. Lastly, Amendment 55A covers young people accommodated in “homestay accommodation”—I think it should have a capital H—while undertaking language courses.
Amendment 55C would provide that there should be no breach when, after entering into an agreement, a tenant becomes disqualified because of his immigration status. This is a matter that the landlords associations expressed concern about in their evidence to the Public Bill Committee in the Commons. It is a probing amendment through which I seek to understand how a landlord is to ensure that he is not in breach without frequent checks. I think that the noble Lord, Lord Best, referred to this on a previous day. If the landlord is satisfied that the tenant is a British citizen, that is one matter, but if the status is complicated or is not permanent, what is the landlord to do? It seems to me that he must keep on asking, which is impractical.
Amendments 55F and 55J are amendments to Clauses 19 and 21, dealing with excuses—that is the term used—available to landlords and agents. Clauses 19(2) and 21(2) excuse the landlord or agent from paying a penalty, having been given notice of the contravention. There is a world of difference between a contravention and merely not paying the penalty when in fact there was no contravention or, in the case of a landlord with an agent, when it was the agent’s responsibility. Therefore, I am seeking to put the position as I think it should be put, because I do not think that it is just a matter of semantics.
Amendments 55G and 55K are amendments to Clauses 19(7) and 21(7). Similarly, Amendment 55H in the name of the noble Lord, Lord Best, is an amendment to Clause 19(7). These amendments allow me to ask whether it is necessary both to have complied with the requirements during the period and to have notified the Secretary of State without delay. The amendments also enable me to ask whether the phrase,
“as soon as reasonably practicable”,
in these clauses means “without delay” in the eyes of the Government. They are not synonyms in ordinary language. I also ask the Minister to confirm that it is possible to notify the Secretary of State “as soon as reasonably practicable” under subsection (6)(a) without following the route in subsection (7)—in other words, that subsection (7) is not the only way to satisfy subsection (6)(a). I appreciate that this is not language that is holding the Committee riveted at the moment, but these small amendments could be important in practice.
Amendment 55L addresses whether or not the documents need to be “of a prescribed description”. The amendment would mean that any document could be used to prove that a person from outside the EEA had a right under European law to be in the UK or, in the case of other persons, that a document granting leave could be used. In other words, how is immigration status to be proved? I appreciate that in many ways it will be easier if there is a list. However, the list of documents has to be complete and accurate, and I am aware of the frequency of the change in immigration rules, which will affect which documents can be prayed in aid in this situation.
European nationals can bring family members with them. I was thinking about that when we were talking about people who are under or over the age of 18. Those family members may be persons from outside the EU if they have a right to be here and are not under an obligation to possess a document issued by the Home Office. They can apply for one and the Home Office is supposed to provide it within six months. Perhaps the Minister can tell us whether the Home Office wants people falling within this category to apply for documents, as I suspect that that will cause a considerable amount of extra work.
EEA nationals, as a matter of law, should be treated as well as any third-country nationals. It looks as if third-country family members will find it harder to prove their entitlement to be in the UK—even those from a family composed entirely of non-EEA citizens who have visas. There are some small categories of British citizens who do not have passports but can show that they are British through the use of a birth certificate. Is the landlord expected to know that the birth certificate belongs to the individual? The guidance for employers on checking documents, as we have already heard, is very long—more than 80 pages. The amendment probes that area further.
If the documents are to be of a prescribed description —the Minister alluded to that this afternoon—the Home Office is expecting them to be originals, which should be produced for the obvious reasons of avoiding fraud. Amendment 55M suggests a mechanism for certifying them as true and complete copies as a matter of practicality. What if a landlord says, “Thanks, I’ll take your document away and make sure that it is right”? One would have to be rather trusting of someone holding one of those very precious original documents. What if the Home Office has the papers at the time? There are many situations in which a notary public or solicitor empowered to administer oaths, and so on, can certify original documents showing that they are true and complete copies. Amendment 55M probes that point.
Amendments 55N and 55P would remove the power of the Secretary of State to issue a penalty notice without having established that the landlord has a statutory excuse. The lawyer in me protests that the Secretary of State can issue a penalty notice as soon as he establishes that the person cannot prove a relevant nationality or a right to rent. There will be disputes about liability even before it is established that there is a defence. It would be inappropriate to accuse a private citizen of having broken the law before making any effort to investigate the circumstances.
On Amendment 55Q, under Clause 24(5)(c) the Secretary of State can “increase the penalty” if the landlord or agent receives a penalty notice. In the Public Bill Committee in the Commons, the Minister indicated that an increase would be applied in circumstances when new facts came to light. That was in column 272. I shall not weary the Committee by reading the extract but that is what it amounted to. I am concerned that, by having an unconstrained right to increase the penalty, there will be a danger that objections will not be made and that this provision would act as a deterrent to a perfectly proper notice of objection. I speak as somebody who has not objected to a notice of having jumped a red light when I know perfectly well that I did not. We know that we cannot defeat the system so we might as well pay up. I see this as an equivalent position.
Finally, Amendment 55S would require the Secretary of State to issue a substantive claim giving the landlord an opportunity to raise the defence before the matter is determined—rather in the way to which I have just alluded, to separate out liability as the first issue from the penalty. I beg to move.
My Lords, these amendments build on the two previous debates that we have had on this issue and highlight its difficulties and complexities. I know that the Minister will give an explanation of these but I ask him to take on board the points that have been raised today, and the other points raised on Monday at Questions, which strike at the heart of what these clauses seek to do.
What worries me is that if landlords are going to rent out their properties and want to abide by the law, they will need to have absolute clarity about what is expected of them. The noble Baroness, Lady Hamwee, thought that she was testing the patience of the Committee. I do not think she was because, for example, Amendment 55Q makes an important point. I worry that the measure outlined in that amendment could be a further deterrent to landlords to rent.
The noble Baroness mentioned the code of practice and the documents available. As I said on Monday, the Government have tried to be helpful by increasing the number of documents available. However, I am not sure how helpful that is because it creates even greater complexities. I had hoped for an explanation of why under List A of acceptable documents, 10f has only a full stop. Presumably there is something missing and there will be another document at some point.
So there may be further documents which are acceptable. I appreciate that.
However, clarity for landlords is crucial, particularly if they are expected, according to the impact assessment, to pay £6.8 million-worth of fines, which is the Government’s break-even policy objective. Every time I read the landlords’ guidance it raises more questions than answers and I am sure it will be the same for landlords. If I were a potential landlord I would regard this as a disincentive.
In the previous debate I asked the Minister a question about landlords seeking to play safe and the noble Baroness, Lady Hamwee, has reminded me that I did not receive a response. The worry is that landlords will look at the obligations placed on them and want to choose tenants who most look like, sound like and are easier to identify as, in their eyes, British citizens. Rather than choosing those who may even have permanent leave to remain, they are going to play safe. There is a discriminatory aspect to that. However, the specific question I asked was whether the Government have made any impact assessment of the impact of the legislation on the availability of rooms to rent in the private rented sector. It would be helpful to know if any consideration has been given to that point.
I am grateful for both the debate and the amendments tabled by my noble friend. They contain constructive suggestions and are designed to make this part of the Bill work, an aim which noble Lords will share. The amendments seek to exclude vulnerable people and students from the provisions of these clauses. I have already referred to the Government’s plans in relation to students. However, I wish to provide some reassurance in relation to those who may be vulnerable.
On the point made by the noble Baroness, Lady Smith, discrimination is a concern. Certainly if it became widespread it would destroy the credibility of these arrangements. That is why there is a code on discrimination running parallel with the code of practice. As noble Lords will know, to breach this code and to act in a discriminatory fashion is against the law in any event, and so it is part and parcel of the package of non-regulatory measures being brought forward to reinforce these particular provisions.
Clause 16 provides discretionary powers for the Secretary of State to authorise a tenant who has no lawful status to rent property. This will include asylum seekers, who will be able to confirm that they have a right to rent with the landlords’ checking service, or a landlord may conduct a check directly with the service. This discretion will be exercised where a failed asylum seeker is unable to return home because of a recognised barrier.
Tenants housed by virtue of children or national assistance duties are also covered in exclusions. Schedule 3 provides that any accommodation provided to a person as a result of a duty on a local authority is excluded—that is, a duty on a local authority in respect of any obligations to vulnerable people. It does not seek to particularise the duties, including the respective Acts and orders relating to children or social care; it is a general obligation which local authorities may have to individuals. Therefore the amendment proposed by my noble friend is not necessary given the wide scope of this exclusion.
The amendments are also intended to provide further protection to landlords. The provisions create a civil penalty scheme which the Government are committed to applying on a light-touch basis. Where a suspected contravention is discovered, the Secretary of State may issue a penalty notice, including where they are not immediately contactable. The landlord is then afforded a right to raise objections. Where these objections show that the landlord has a statutory excuse from a penalty, they will be notified in writing. No further consequences will arise if the objections show that the landlord has a statutory excuse.
The power to increase a penalty is important—it is a kind of parallel power—as it may not be immediately clear whether the landlord has been previously penalised in this way. The landlord may, where it is decided to maintain a penalty, appeal to the courts. That is the right order of events: rather than going immediately to appeal, adjudication can take place informally between the landlord and the Secretary of State.
It is proposed that where a penalty remains unpaid the Secretary of State should be able to pursue recovery through the courts if the penalty were due under a court order in exactly the same way as a civil penalty. In cases where an appeal has been heard by the courts, this avoids the landlord, the Secretary of State and the courts having to return to the same court to hear an application for judgment for an amount the court has already determined should be paid by the landlord.
Turning to Amendments 55A and 55B, to which my noble friend wanted me to pay attention, I remind the House that the proposed sanction is a civil penalty, an administrative scheme; it does not form part of a criminal investigation. Clause 23 places a responsibility on the landlord and/or agent to evidence that they have complied with the prescribed requirements and have maintained an excuse against a penalty where necessary. That does not mean to say that the Secretary of State is not required to establish that there has been a contravention of Clause 17 to justify the issue of a penalty notice, nor that the Secretary of State will not engage with the landlord or agent and give them the opportunity to establish an excuse before a penalty notice is issued. I can confirm that the intention is that landlords and agents will be invited to demonstrate their excuse before a penalty notice is issued. However, in cases where the landlord or agent refuses to co-operate with an investigation, the Government consider that this is a proportionate and practical approach. The landlord or agent can easily prove that they have undertaken the checks by producing copies of the relevant evidence, whereas it would be difficult for the Secretary of State to establish a negative and establish that the prescribed requirements were not complied with.
Perhaps I may turn to Amendment 55Q, because it was also mentioned. The amendment would limit the ability of the Secretary of State to impose a proportionate penalty. It may not be immediately obvious, for instance, that a landlord who is served a penalty has been served a penalty in the past, and so falls to suffer the higher penalty. Because of the nature of these arrangements there are indeed higher penalties for repeat offenders. The objection process may identify information which suggests that the penalty should be raised as well as lowered, and the Secretary of State should be able to take this into account.
This group of amendments also relates to the checks required of landlords. Removing the need for further checks when a tenant’s immigration leave is to expire will fail to deter overstayers. Allowing landlords to avoid the further checks by reporting a contravention may tempt some landlords simply to take the easier route, regardless that the tenant may have extended their immigration leave, which is the reason why these documents need to be checked. This will not serve the policy objective well and has the potential to undermine the whole scheme.
I turn now to the regulations that will make it clear to landlords which documents are acceptable in establishing an excuse. My noble friend Lady Hamwee laid great store by this area, and I agree that it is an important aspect. Allowing the use of any document that purports to be an immigration document risks opening the way for fraudsters; nor should there be a need for certified copies because that will lead to extra costs and potential delays. It is quite reasonable to expect tenants to produce original documents for checks. As regards non-EEA family members of EEA nationals, these family members will be able to show Home Office-issued residence permits or certificates of application as evidence of their right to rent. The noble Baroness asked what would happen when these documents are not available because they might be lodged with the Home Office with an outstanding application. The landlord’s checking service will be able to confirm in writing that the landlord may rent within 48 hours. That is a commitment which we have put into the legislation.
I hope that my noble friend will feel able to withdraw her amendment, and if I have failed to satisfy her on any points, I will write to her.
I apologise because I now understand why the noble Lord is inching towards our pilot. However, I have asked him a question in the last two debates: has any assessment been undertaken of the impact of this part of the Bill on the availability of rooms to rent and properties to rent?
My Lords, can I ask the Minister a question about asylum seekers and persons appealing against a refusal of asylum who are occupying rooms in private houses? It has been said that there are quite a few people doing this, notwithstanding the fact that accommodation is normally provided for them under the Immigration and Asylum Act 1999. Can my noble friend elucidate what provisions are being made for documents to be produced by those who are occupying rooms in private houses because they are not covered by the provisions of Schedule 3, to which he has referred? They deal only with the accommodation that is provided to most asylum seekers under the 1999 Act when they cannot afford to pay for accommodation of their own. However, there is still an important residual group of people who find space in private houses. They will need documentary proof that they are allowed to live in those houses and thus ensure that landlords are not breaching the conditions by taking them in.
I think I have made it clear that for people who have asylum seeker status, where it is not safe for them to return and therefore they may be failed asylum seekers, the Home Office will provide the necessary documentation to show that they have a right to accommodation even though their status may well be that of failed asylum seekers.
My Lords, perhaps I may also ask for some clarification. One of my concerns about this part of the Bill is that many landlords will simply not rent to anyone who seems to be foreign or who does not hold a British passport for fear of getting it wrong and being fined. I am afraid that that will inadvertently result in further racial discrimination and provide a charter for those unscrupulous landlords who are racist.
In response to the consultation, the Government accepted that the new rules might provoke landlords to discriminate against people they perceive to be foreign rather than to conduct proper checks. They also recognised the risk that vulnerable people might be impacted. So, is the code of practice and the associated guidance which will make it clear that the checks do not allow landlords to act in a manner inconsistent with the UK’s equality legislation sufficient? It simply requires landlords to read the code and adhere to it without any redress at all if they do not. Moreover, it will be extremely difficult and costly for any potential tenant to bring a challenge of discrimination or victimisation against a private landlord. If people cannot rent relatively easily, they will be forced to seek accommodation in the more shadowy parts of the housing market. I wonder whether the Minister can tell me whether I am right or wrong about this.
My Lords, I do not want to sound complacent because I recognise that this is a cause of anxiety which has been expressed in meetings I have attended. It has also been expressed by other noble Lords in our earlier discussions about the Bill. I do not want to lay too great a store by the codes, but those codes exist, and I do not want to lay too great a store by racial discrimination legislation, which would clearly apply in such circumstances.
What I will do is to ask the right reverend Prelate to accept that this surely applies in connection with employment. I do not know whether the right reverend Prelate feels, as he looks at the nature of people who are engaged in work in this country, that there is widespread evidence of racial discrimination, but I would have thought not. I think it is to the great credit of this country that it is able to welcome people, and this is certainly not a Bill that is designed to make people unwelcome, as long as they have a right to come here and to remain here. That is the principle of this legislation, and I hope the right reverend Prelate will be reassured by that. It is not meant complacently but I believe that, at bottom, the analogy with employer provisions is a good one and leads me to suggest that the particular fear that the right reverend Prelate refers to is not the cause for concern that he thinks it is.
My Lords, this discussion has confirmed for me the complexity of the provisions, and therefore the advantages in having the sort of verifying body to which the noble Lord, Lord Best, referred in the previous group of amendments. We will come later in the Bill to the position of immigration advisers and tightening up arrangements there. It seems that, as well as rogue advisers, there must be many who are simply incompetent. One could almost say, “Who can blame them?”, but nevertheless I do blame them. Any arrangements which can make it simpler for those who are, as it were, at the coalface to operate will be very welcome. This debate has confirmed that in my mind. My noble friend Lord Avebury has been muttering in my ear about whether case law on employment restrictions applies here. That is another area where I dare say the Minister would say that it depends on the facts, but it is a good illustration of what we may be dealing with.
The Minister said that there was no need for a certified copy of a document, but I was suggesting—I hope—that it could be an option. The reference to the 48 hours to check reminds us all that, in this extraordinary letting market, the property will be gone in 48 hours. The Minister in the Commons talked about the increase in the penalty being based on “aggravating factors”. He said:
“If new information comes forward that demonstrates that, for example”—
I must concede that—
“the mistake was not innocent, but some sort of connivance was involved … it seems only right … that someone looking at the issue afresh should take that into account and reach a conclusion accordingly”.—[Official Report, Commons, Immigration Bill Committee, 7/11/13; col. 272.]
In my mind, that sort of connivance would be a new fact. I would be very happy to look at the language but I am concerned about the deterrent properties of this. I would hope that we might be able to pin that down a little more.
I will carefully read what the Minister said on this as it is a technical point. He referred to the detail of Schedule 3. My noble friend again questioned whether paragraph 8 of Schedule 3 covers the ground that we are concerned about. Going back again to the workability of these arrangements, I must of course read carefully what the Minister has had to say. I thank him for his answers and for what I think he said implicitly. These are detailed points which we might, if it is appropriate, look at again before Report so that we can make sure that anything we raise on Report is justified and not already covered. The Minister is nodding. I beg leave to withdraw the amendment.
Amendment 55A withdrawn.
Clause 16 agreed.
Amendments 55B to 55E not moved.
Clauses 17 and 18 agreed.
Amendments 55F to 55H not moved.
Clauses 19 and 20 agreed.
Amendments 55J and 55K not moved.
Clause 21 agreed.
Amendments 55L and 55M not moved.
Clause 22 agreed.
Amendments 55N and 55P not moved.
Clause 23 agreed.
Amendment 55Q not moved.
Clause 24 agreed.
Amendment 55R not moved.
Clause 25 agreed.
Amendment 55S not moved.
Clause 26 agreed.
Amendment 55T not moved.
Clause 27 agreed.
Amendments 56 to 56D not moved.
Clause 28 agreed.
Amendments 56E and 56F not moved.
Clause 29 agreed.
Amendment 56G not moved.
Clause 30 agreed.
Amendment 56H not moved.
Clause 31 agreed.
Amendments 56J to 56L not moved.
Clause 32 agreed.
Clause 33: Immigration health charge
Amendment 57 not moved.
58: Clause 33, page 27, line 24, leave out from “charge” to end of line 25
My Lords, after Monday’s debate, I do not think this should take very long. Amendment 58 relates to Clause 33, on immigration health charges, and specifically to subsection (3)(b), which says:
“An order under this section may in particular … specify the amount of any charge (and different amounts may be specified for different purposes)”.
My amendment would remove the words in brackets. As I understand it, we already have the defined charges of £150 for students and £200 for other immigrants.
In the debate we had on Monday, I asked the Minister:
“Once that levy has been paid, it will allow them”—
we were speaking about students—
“to access all health services. Is that quite clear?”.
The answer the Minister gave was:
“Yes, that is exactly right. They will have the same access to health services as is available to a permanent resident”.—[Official Report, 10/3/14; col. 1573.]
Later in our discussions I said:
“As I understood it, I thought he said that once the health surcharge—let us say it is £200—is paid, for the duration of their legitimate stay in this country all health services will be available to them”.
In his reply, the Minister corrected me. He said:
“It is a per annum charge, so if they are here for three years and are not a student it will be three times £200”.
I accept that. But he went on to say:
“But yes, that is exactly right”.—[Official Report, 10/3/14; col. 1574.]
That is, there will be no further charges and all health services will be available to whoever has paid the levy or the health service charge—students or other immigrants.
In that case, I do not know why there is a need to have the words,
“and different amounts may be specified for different purposes”.
We need to know what these purposes are and whether there will be extra charges. If there are, what will they be for, and what will be the tariff? That is my amendment. I beg to move.
My Lords, when we discussed this previously, I, too, asked my noble friend the Minister about the relationship of this provision to Clause 33(4), which says that,
“the Secretary of State must … have regard to the range of health services that are likely to be available free of charge to persons who have been given immigration permission”.
I said that that implied that certain services provided by the health service were not going to be free of charge to these people. My noble friend tried to reassure me on this point but it is there in the Bill. It seems inconsistent with the repeated declarations that were made by my noble friend the Minister—which the noble Lord, Lord Patel, has just quoted—that once you have paid this levy, you are free to access all health services provided by the NHS. If that is the case, Clause 33(4) should be deleted from the Bill.
My Lords, when we discussed Clause 33 previously, the Minister was subjected to a very large number of points. I suggested then—and beg leave to suggest again this evening—that somebody should go over the clause very carefully and look at all the bits in brackets, of which there are quite a lot, and the various subsections and so on, to try to trim it down and make sure that it contains what is really necessary and does not have the opportunities for obscurities and criticism that it presently contains.
It is quite a difficult clause and I understand very well why when one gives power to make an order one wants to give as much scope as one can to the Minister, but this clause goes rather too far by trying to hedge too many bets, and I suggest that it should be looked at very carefully.
My Lords, I attended some of the debate on Monday and heard my noble friend Lord Bourne refer to the £200—or £150 because he was talking about the student rate at about £3 a week—as being very reasonable and fair. As he said,
“it is the cost of a Sunday newspaper”.—[Official Report, 10/3/14; col. 1605.]
It seems sensible that there is some flexibility in this health charge.
The cost to the National Health Service for an individual between the ages of 15 and 44—presumably young enough to be in reasonably good health normally —is £700 a year. Of course, that rises for older people. As your Lordships may be aware, Professor Meirion Thomas has written extensively about the abuse of health tourism. Because we are not in the Schengen visa system, people do not need compulsory health insurance to come to the UK and as a result he has identified many instances of abuse by healthy people and particularly by people who are not well and pregnant women coming to this country to get health treatment without any coverage of costs.
It is true that the National Health Service has charged such “health tourists” some £300 million but it is also true that it has managed to collect only 16% of the amount it has invoiced. Other countries, such as America, Canada and Australia, have much more severe restrictions on people coming in without health insurance and consequently we get more than our fair share. I would argue for flexibility in the health charge and clarification, as the noble Lord, Lord Patel, requested, of the parts of the health service to which it applies.
My Lords, I would hope that if the intention of the words that the amendment seeks to delete is as the noble Lord, Lord Leigh of Hurley, speculated, the Minister will stand up in response and say it loud and clear to get it on the record.
I did not intervene in the debate on Monday. I read Hansard subsequently and I, too, was left somewhat confused as to the Government’s position. So I looked at the Explanatory Notes, and they do not explain the significance or purpose of the words,
“and different amounts may be specified for different purposes”,
which rather seems to defeat the primary objective of a document headed “Explanatory Notes”. The notes refer only to what is in Clause 33(3)(f), which is a reference to a “reduction, waiver or refund”. I then looked at the Home Office factsheet on Clauses 33 and 34, which also remains silent on the intention of the words, except to say that those who have paid the surcharge will be able,
“to access free NHS care to the same extent as a permanent resident, subject to some exceptions for particularly expensive discretionary treatments”.
I then looked at the letter we all received from the noble Earl, Lord Howe, dated 6 March, in the hope that the Department of Health might be able to throw some light on this, but the letter provides no help on the purpose or intention behind these words, which this amendment seeks to delete—although obviously the amendment has been tabled with a view to getting an explanation from the Minister as to what this means.
I then looked at what the Minister said on Monday. I came to the conclusion that the Minister, too, was unable to tell us why these words are in Clause 33. He said on Monday that those who have paid the levy will be allowed the same access to all health services,
“as is available to a permanent resident”.—[Official Report, 10/3/14; col. 1573.]
As the noble Lord, Lord Avebury, pointed out, Clause 33(4) states:
“In specifying the amount of a charge under subsection (3)(b) the Secretary of State must … have regard to the range of health services that are likely to be available free of charge to persons who have been given immigration permission”.
The Minister also said on Monday that when the Bill was initially implemented, it was the Government’s,
“clear policy intention that there will be no further charges for treatments”.—[Official Report, 10/3/14; col. 1572.]
But the Minister accepted that this policy stance was not in the Bill. He said that the Government,
“will clarify the position on implementation”.—[Official Report, 10/3/14; col. 1575.]
Frankly, the Government should be clarifying what their Bill means today. Will the Minister now indicate what the words,
“and different amounts may be specified for different purposes”,
are actually intended to mean, and will he give some concrete examples? What different amounts and for what different purposes do the Government have in mind? Is Clause 33(3)(b) simply some sort of ghost paragraph that the Government think may come in handy at some time in the future for purposes about which they are currently unclear? Can the Government’s present position on why and at what stage these words in the Bill will be applied best be summed up as, “Don’t know where, don’t know when”?
I hope that the Minister can today give us clear reasons—which is what the noble Lord, Lord Patel, asked him to do—as to why these words are needed in the Bill and clear up the confusion that I think a number of Members of the Committee, both those who intervened in the debate on Monday and those who subsequently read Hansard, feel exists at present.
My Lords, it is helpful that we have had this debate; I am pleased that the noble Lord, Lord Patel, has moved the amendment. As he said, it was originally designed to supplement his amendment relating to students. I think that we have got a good story to tell in connection with students. If I may, however, I shall deal with the particular amendment, Amendment 58.
The noble Lord is right that the provision is not immediately transparent; indeed, the noble Lord, Lord Rosser, has challenged me on this point, too. I understand that the intention of the noble Lord, Lord Patel, may have been in respect of the exclusion of certain expensive discretionary treatments from the free access afforded by having paid the surcharge—I think that that was his concern. I said on Monday, and I am happy to repeat today, that no such exclusions will apply when the surcharge is introduced, and none is planned for the future either. We intend that the payment of the surcharge will provide the same access to health services as is available to a permanent resident.
I turn to the penetrating critique from the noble Lord, Lord Rosser. Both he and the noble and learned Lord, Lord Hope, felt that a degree of ambiguity lay within the clause, so perhaps I may explain why Clause 33(3)(b) states that,
“different amounts may be specified for different purposes”.
The answer is that it allows regulations to specify different amounts of surcharge for different categories of migrants—currently, there are only two amounts: the £200 rate and the £150 rate—without which we would not be able to give the discount to students, which is one of the elements of the Bill. We need this capacity to do so. We do not have it in mind that there will be other categories, but this is the way in which the discount for students is facilitated by the legislation. It does not refer to NHS charging in the legislation.
Perhaps I may refer to the comments made by my noble friend Lord Leigh of Hurley, because we have a very different health system here from that in the USA and in Australia which requires a different solution. Health insurance requirements would be expensive and compromise our own competitive position in the international market for students and for workers, which is not what we want the Bill to do. Most EU countries do not enforce the Schengen visa health insurance requirement at their borders. A student applying to Harvard in the USA, for example—my noble friend Lady Williams of Crosby referred to Harvard and its great pull as a centre of learning for overseas students—has to pay a fee of $958 per year to access basic health services. To access Harvard’s more comprehensive health insurance plan, which is comparable to what the £150 rate gives access to, would cost a further $2,190 per year. That gives some measure of what is involved. We have already committed to this discount for students—that is what this clause is about—in recognition of their contribution to the UK, reinforcing, I hope, arguments that I am trying to make at regular intervals in our debates. They will pay just £150 instead of £200, which is 1% of the cost of coming to study in the UK and exceptional value for money, as I am sure noble Lords will agree.
Why does the Bill allow surcharge payers to be charged for further treatments? So that noble Lords are clear, I should clarify that the Bill does not prevent the exclusion of certain expensive, discretionary treatments from the free access. However, we have made it clear that we intend that no such exclusions will apply when the surcharge is introduced. The Department of Health has been clear that it will consider these in future only in the event of exceptional and compelling specific justification for health purposes; and any changes would need to be put before Parliament in the form of revised NHS charging regulations. One might say that this is for treatments which may in future emerge where it is considered that the health service quite properly should charge not just migrants but members of the UK population.
My noble friend Lord Avebury asked whether there was a problem with the drafting of Clause 33(4). The drafting purpose of Clause 33(4) is to provide a clear link in the Bill to health treatment. Without it, the clause would give an unlimited power to charge for any purpose, which is the intention neither of the clause nor of that particular subsection of it. I note what noble Lords have said about the wording of the subsection. It has been carefully drafted, but if I can provide noble Lords with an explanation of line-by-line implications, I shall do my best to do so before we get to Report. Meanwhile, I hope that the noble Lord will withdraw his amendment.
Where the Bill uses the words,
“likely to be available free of charge”,
in Clause 33(4), it anticipates the possibility that the Minister mentions—that while we do not intend to charge anybody at the outset of the operation of the Bill for services of particular cost, we have it in mind to do so in the future. That would apply to students and to short-term migrants as well.
I think that I made it clear that the wording is designed to enable the health service, if it feels that particular treatments should be charged for, to do so. There is no intention to do so at present, but it is important that the Bill makes it clear that this is a facility which the health service wishes to reserve for itself. I think that it is quite proper for it to do so, but there is no intention on the introduction of the health charge for there to be any additional fees for additional treatments.
My Lords, will the Minister clarify two things? I apologise if I appear to be Baroness Dim on these two points. The first is: will people who do not want to pay the health charge be refused permission to come into this country? I want to make that clear and have it in Hansard. Secondly, I am still not clear about the phrase that the Minister used a while ago, “different categories of charging”. I am still not clear about what will happen
There are two different categories of charge currently: that for students and that for everyone else. I just wanted to make that clear. The wording is general, but those are the two categories that the Bill is intended to introduce. On the question of whether paying the surcharge is mandatory, yes, it is for overseas applicants.
No, that is not the case, but they may be, as they currently are, charged for particular treatments. There are some medical treatments available in this country which are not available under the National Health Service. That would remain the case. That is not the purpose of that particular phraseology. As I have explained, it is to provide for the charging of different categories of migrants—students and others. That is the purpose of the wording. The National Health Service has always said that it will provide health treatment free at the point of use. The purpose of the charge is to put applicants on the same basis as every other resident of this country, so the anxiety that my noble friend expresses is ill founded. This is not the vehicle for introducing mass charging for treatment under the National Health Service. That is not the purpose of the clause and it will not be possible to achieve it through this legislation.
My Lords, I listened with great interest to that exchange. If the noble Lord is prepared to follow my suggestion and look at the wording, there is a bit of a mismatch between what one finds in Clause 33(1)(b), which mentions,
“any description of such persons”,
and the phrase,
“different amounts may be specified for different purposes”,
in subsection (3)(b). I could understand the linkage if one were talking about different charges for different categories of persons, but it is the breadth of the word “purposes” in subsection (3)(b) which causes difficulty. Looking to the future use of the clause when it becomes a section, it would really be helpful if it were a little more precise.
I thank the noble and learned Lord for that advice—free legal advice to the Government is considered to be very valuable. I hope that I have been able to explain what the legislation is intended to do and have reassured noble Lords on that point. Beyond that, I can commit to go back to look at the wording of the clause to see whether the intention could be made more explicit. That I will seek to do.
Perhaps I may help the noble Lord. Noble Lords understand that there are now NHS treatments and services for which charges are made and that people who are resident in this country pay those charges, as do visitors. What is perplexing about the clause is, given that that is the case, what is the Government’s intention? Is it to reach a point in future where different categories of people have to pay for identical services? If the Minister could write to noble Lords and give us some examples of what scenario the Department of Health envisages under the legislation, that would be extremely helpful.
There is nothing sinister here. This is not a Machiavellian move by the Government. It is to bring in a differential between the charge for students and the charge for ordinary migrants, which I am sure that noble Lords applaud. That is the objective. I reassure my noble friend that I will take her advice and write to Noble Lords on this point. I was here for Third Reading of the Pensions Bill, when mention was made of the weight of paper with which noble Lords have been bombarded concerning that Bill. I fear that we may be getting into the same situation here, but I hope that noble Lords will understand that, in technical matters such as this, it is often easier to put things in writing, because I can be more explicit.
My Lords, I thank all noble Lords who have spoken. I have a few points to make. First, the Minister said that the subsections of Clause 33 were very carefully drafted. Listening to the debate, I think that there will be a collective opinion in the House today that that is not the case. I am pleased that the Minister said that he will look at the provisions to see whether the purpose for which they have been written can be clarified. I look forward to new amendments.
I am much clearer now about three things. First, once the health charge, or the levy, is paid, currently, for all those who pay the levy, health services will be available to them free of charge, just the same as permanent citizens of this country. That bit is clear. The second thing clarified by the Minister—I thank him for doing that—is that the words,
“and different amounts may be specified for different purposes”,
do not refer to health service charges but to categories of immigrants or students who we allow to come to this country.
The third purpose is what the noble Lord, Lord Avebury, referred to in subsection (4), which does refer to health charges that might be brought in subsequently. In answer to the question of the noble Lord, Lord Willis, the Minister was quite clear that they do not apply to residents of this country and that the Government had no intention of using this as a backdoor way to bring in charges in the NHS for citizens of this country. The subsection refers to extra charges that the Government may introduce through legislation which will be brought to Parliament in the first instance. I hope that I am clear in what I understand and that that is what the Minister said.
On that basis, until we see the redrafted clauses, I beg leave to withdraw the amendment.
Amendment 58 withdrawn.
Amendments 59 and to 60 not moved.
Amendment 60A had been withdrawn from the Marshalled List.
61: Clause 33, page 27, line 36, at end insert—
“(4A) The Secretary of State will, within 12 months of the passing of this Act, lay before the House a report on the sums collected under this section and the expenditure thereof.”
This amendment also relates to Clause 33. The only comment I make to start with is that if all the verbiage in Clause 33 does is give the power to charge one rate to students and another to everybody else, it seems unbelievable that it cannot be made simpler and more explicit. I hope that the Minister will bear that in mind when he reflects on the debate that took place on the previous amendment.
Clause 33 provides the Secretary of State with a power by order to require certain migrants to pay an immigration health charge. It relates only to people who are seeking immigration permission; it does not relate beyond that. The charge would be paid by someone who was applying for leave to enter or to remain in the UK or for entry clearance. The amount, the method of payment and the consequences of non-payment will be set out in secondary legislation although, as has been said on a number of occasions, we understand from the Government that the amount of the charge will be £200 a year and £150 for students and that paying the charge will be a precondition of entry.
We agree with the principle of the charge. It is right in our view to require migrants who are here for a limited period to make a contribution to the NHS. We also agree that the test of ordinary residence is fairly generous. At the moment it is satisfied by many new and temporary migrants almost immediately and covers many people, including newly arrived family members.
We have tabled only one amendment to this clause, Amendment 61, which requires the Government to provide information to Parliament on the sums collected under Clause 33. Obviously, in large part the amendment is to find out a little more about the Government’s intentions on this score. The amendment asks for a review of the sums that are to be collected and how they are to be disbursed. The Bill states that the money will be paid into the Consolidated Fund or be applied in such other way as the order may specify. At Second Reading, in response to a question from my noble friend Lady Smith of Basildon, the Minister said that,
“on 20 January the Chief Secretary to the Treasury confirmed to departments and the devolved Administrations that the money that is collected by these charges … will go directly to health services”.—[Official Report, 10/2/14; col. 524.]
Where will this be set out, and where is the guarantee of it?
There are further questions. Will hospitals that treat a high proportion of foreign nationals get an appropriate or proportionate share of it and how will the money be shared with the devolved Administrations? What is the definition of the words “health services”? Could the money go to the private healthcare sector, for example? If the money is to go to health services, why not say so in the Bill and end any doubts on that score? Will the money from the charge be in addition to the money that the Government provide for the NHS or for health services, or will it be used to reduce the amount that the Government would otherwise have provided? In other words, is it extra money or is it simply going to be used to reduce the amount that the Government themselves provide? Some response to that point would be very helpful.
I want to ask about the implementation of the provisions, because in the consultation document the Government indicated that the migrants’ biometric residency permit would be endorsed to show that they were entitled to NHS treatment without further charge. How will hospitals and doctors be made aware of that? I ask that in the context—I understand that I may well be wrong, and I am sure that if I am I will be corrected—that the Department of Health will publish a full implementation plan—indeed I may be told that it has already done so—which will include plans to develop a new NHS registration process for the identifying and recording of patients’ chargeable status. If that has not already been produced, will the Minister confirm when it might be available? We also want to ensure that there is no disincentive for people who bring benefits to this country. One category is students. How will that charge be kept under review to ensure that it does not act as a disincentive for people who we would wish to come here to do so?
In probing what the Government’s intentions are and how they see this operating, I want to ask about transitional arrangements. The Minister has confirmed to us in a letter that affected migrants who are already in the United Kingdom at the time when the policy is implemented will not be liable to pay a surcharge and will not be charged for healthcare for the remainder of their leave if they were previously exempt from NHS charges. However, once their leave expires, the migrant will be required to pay the surcharge as part of any further immigration application unless they are applying for IDR. Will the Minister confirm where this will be set out in the legislation and how people will be made aware of it? In that scenario, how will a GP know whether someone who should pay the charge is covered if for that patient the charge becomes payable only when they apply for an extension of leave to remain? If a GP refers to hospital a patient who should have paid the charge, will the hospital also have to check that that patient has paid—a double check—or can the hospital accept that the GP making the reference will have done a check and rely on that?
The Minister said on Monday, in a discussion on the issue of the charge, that there would be no transitional arrangements. I ask him not to confirm that there will be no transitional arrangements, because that is clearly in black and white in Hansard, but to confirm that that also means that there will be no transitional costs relating to the bringing in of this payment. It would be helpful to have clarification on that.
I have raised a number of questions: what the Government’s intention are; how this will operate; where the money will be going; whether it will be used to reduce the amount that the Government provide to the health service or whether it will be additional money; what the definition is of “health services”; and whether the money could go to the private sector. I have also raised queries about the position of GPs and the checks that they have to make, and in particular whether there is a double check if they refer someone to a hospital or whether the hospital can take it that the GP will have done the checks and that is the end of the matter. I beg to move.
My Lords, I shall speak to my Amendment 66F in this group. Following the consultation in 2013, the Department of Health said that,
“while there is a great deal of speculation about the numbers of visitors and short-term migrants using the NHS, robust data are very limited”.
That is the point that I wish to address. I have no problem with the Government’s intention to introduce a health levy, and I have no problem with them seeking to have different rates for different groups of people. However, I want to be sure that when this House makes a major change to a fundamental policy that we have held in this country for over 60 years, that it does so on the basis of sound evidence.
Back in 2006, noble Lords will remember that proposals of this kind came before this House from the then Labour Government but then disappeared, principally because someone went back to the department and worked out that the cost of implementing the proposals far outweighed any benefit. It is simply good business practice to have done a cost-benefit analysis of a major change before one implements it. The Government are wedded to doing this—fair enough, and I have no doubt that they will go ahead—but it is only right that if they go ahead they should do so on the basis that its implementation will be thoroughly analysed, so that we do not find ourselves back here in five years’ time responding yet again to an agenda that has been set by various media organisations and political groupings on the basis of nothing more than speculation.
When we talk about this issue, we always find the Government talking about the work of overseas visitors officers and so on and claiming that there is a degree of undercharging and that the NHS budget would be helped substantially if we had a scheme such as this in place. People who work with minorities and vulnerable groups in our society have quite legitimate fears about the potential cost not just in terms of public health but of acute care if migrants and so on are deterred from seeking NHS services at an early stage. Neither side has any real, strong evidence base. This amendment seeks to build the evidence base so that we know the full cost, not just in financial terms but in terms of public health.
This amendment requires the Government to appoint an independent person to carry out a review. The amendment states that the review should cover a period of two years. Actually, I would prefer it to be three years. I do not believe that the review period of one year suggested by the noble Baroness, Lady Smith of Basildon, is long enough because it may be that there is something unusual. If this proposal had been put forward a few years ago, and we then proceeded to have a swine flu epidemic, it would have thrown the data completely. I would like to see three years’ comparative data.
The data should not be on just the simple, straight transactional costs of collecting the fee. They should be robust about the impact on public health and on the use of expensive acute services by people who have not gone to primary healthcare services because of the deterrent effect of the changes proposed in the Bill.
My Lords, Amendment 66 requires information outlining details of health charges for health services applicable to the individual to be given at the point of an application for immigration permission or upon request. One of the biggest worries about the health service clauses in Part 3 is that they could create confusion and wrongly discourage some migrants from accessing free healthcare to which they are entitled. According to the Catholic Bishops’ Conference of England and Wales, for whose briefing I am most grateful, there is already a notable lack of understanding about how the charges for health services will work among both individuals and healthcare professionals. Even more worrying, there has also been inconsistency in how charges are implemented.
Most welcome is the exemption from charging for the treatment of diseases which present a public health risk. However, public confusion could result in delays in people presenting themselves and therefore in diagnosis. Already in 2012, 47% of adults newly diagnosed with HIV were diagnosed late. I am not sure what percentage of those late diagnoses would be attributable in any way to confusion. Overall, 81% of AIDS-related deaths in England and Wales in 2012 were attributable to late diagnosis. There is an issue about timing.
Equally, unless people are made aware of their entitlement to health treatment right at the start of their application for immigration permission or when they request it, they are likely never to sort this out or to become clear about the services to which they are entitled. From the taxpayers’ point of view, it is crucial that those entitled to free GP consultations are aware of it. The risk is that fear of being charged for a visit to the GP may result in people not doing that and later needing an A&E appointment. The cost differential between these two options is £90 per patient and could over time add up to quite a bit for the taxpayer, quite apart from the detriment to the patient.
Does the Minister agree that readily available information accompanying any changes to the healthcare charging system or to the collection of charges—I understand that is going to be much tougher in future—is essential to prevent public health risks and unnecessary costs to the Exchequer? I hope the Minister will inform the House what assessment the Government have made about the current level of public understanding about healthcare charges and exemptions for specific groups and what steps they have taken or will be taking to improve awareness among healthcare professionals and members of the public.
Following what the noble Baroness, Lady Barker, said about the importance of the evidence base, I take us back to our debate on Monday. In that debate, a number of noble Lords questioned the evidence base for the claim that there is a problem of so-called health tourism in this country. They asked the Minister what the evidence base was for that claim and questioned the Department of Health’s report on it. The Minister had an awful lot of points to make in his summing up speech and, after about 30 minutes, he quite understandably thought that he had had enough and probably everyone else had, too. Although he has already helpfully circulated a letter following our first day, I could not see anything in it that responded to the concerns raised on all sides of the House. I use this opportunity to invite the Minister to respond on that this evening.
Perhaps I should declare an interest as a chartered accountant. As such, I looked at Amendment 66F with care. I agree that it is important to have a proper review, analysis and evidence of real costs, but the trouble with the proposed new clause is that it asks for a calculation of the total charges paid, among other things, but it does not look for an assessment of the cost against those charges. For the proposed new clause to be meaningful and for the assessment of the health charge to be made, one would have to look at the costs incurred by the National Health Service for the £200 or £150.
My Lords, I welcome the general support offered by the noble Lord, Lord Rosser, for the surcharge. Indeed, I felt that there was support around the House for the surcharge in principle; it is just on implementation and the practicalities that the Government are quite properly being challenged.
The Home Office, which is responsible for administering the health charge, but not for spending the money, will be open and transparent about the operation of the surcharge. As my noble friend Lord Howe set out in his letter to all noble Lords last week—I hope it helped; it was designed to try to put these changes to the law in the context of wider health service reforms—the surcharge income will be allocated directly to the National Health Service across the UK. Allocation will be in accordance with the Barnett formula.
The dear and much-loved noble Lord is not in his place, but much as he seeks to see the end of his legacy in establishing the formula, it is still widely used in government and it seems the most appropriate way of ensuring that the money goes to the NHS. It will go to the NHS—the National Health Service—not to any other agency offering healthcare in this country. How the NHS spends it is for the Department of Health, of course, and the devolved Health Ministers, because health services are a devolved matter. The allocation of the money will be made by affirmative order, so we will have control here in Parliament of how this is finally resolved.
I note what my noble friend Lady Barker said in speaking to her amendment. While the Home Office already has a well established procedure through which it is accountable to Parliament, I appreciate that this House would benefit from the means to scrutinise the impact of the surcharge. I am therefore prepared to make a Statement to this House to provide information about the Home Office’s administration of the surcharge within 12 months of it going live. I hope that that will give some assurance to noble Lords on how the surcharge is working.
It may include details such as the number of migrants who pay the surcharge and the total amount of surcharge collected and directed to the National Health Service. I believe that this sort of transparency is important, and the Statement will provide proper transparency and provide the House with the necessary flexibility in scrutinising the surcharge scheme. Furthermore, any future changes to the core operating principles of the surcharge, including the amount to be paid, will have to be agreed by both Houses under an affirmative resolution procedure.
On Amendment 66, tabled by the noble Baroness, Lady Meacher, we intend to do our utmost to ensure that visa applicants understand the purpose of the surcharge and how it might apply to them. We will make the information available to individuals, including through our website and visa application centres. Indeed, the visa application form is where most people encounter this surcharge because it is directed only at those applying for a visa for a stay of six months or more. The form itself will explain it.
My noble friend Lord Attlee has pointed out in conversation that universities themselves might like to promote the student surcharge as being a very competitive offer at £150; it certainly is a bargain in global terms. However, it would be most unfair to ask migrants to pay a surcharge that they know nothing about. Both the reasons it is being charged and what it gives migrants access to are very important.
The noble Lord, Lord Rosser, asked when the Department of Health will publish its detailed implementation plan for patient registration and identification. If I say “shortly”, he will know that that word is used regularly enough. We do not have an exact date, but it will be shortly. He also asked how the transitional provisions would be set out and how a hospital will know if a person is a transitional case. This will be done in the order implementing the surcharge. We will use the patient registration system to flag people who have paid the surcharge. We will consider doing so also for those who benefit from the transitional arrangements. The simple production of a visa or biometric residence permit—BRP—that is current and valid will give evidence of free entitlement to the NHS, and transitional cases will be identifiable because their entry clearance or BRP will be dated before the commencement of the surcharge scheme, which will be known.
My noble friend Lady Barker asked about the costs of implementing the health charge and whether we have done a cost-benefit analysis. We have indeed. The Home Office has produced a full impact assessment on the Bill. It is available on the Immigration Bill page of the gov.uk website.
The noble Baroness, Lady Meacher, asked about treatments for infectious conditions, such as HIV and TB, for example. They are free, and will remain so. It was this Government who abolished the NHS treatment charges for HIV.
I hope that I have answered most of the points. I will go through the record and see whether there are aspects that I have not addressed. The noble Baroness, Lady Lister, is looking particularly questioning. Can she remind me of what I have missed?
Given that the Minister was able to slip out of answering this point on Monday—it did not seem fair to push him on it after he had covered so many points—perhaps I might remind him about the evidence base for health tourism. I have a snippet of information that one piece of research that the Department of Health is relying on is that, out of nearly 1,000 migrants screened by overseas visitors officers in more than 15 trusts during August 2013, only four individuals—0.4% of the sample—were identified as “health tourists”. Even if the Minister cannot now tell us what the evidence is for this claim of health tourism, I would be grateful if he could commit to write specifically on this issue, given that it kind of got left out of his last letter.
My Lords, when the noble Lord is replying on that point, will he deal with story of the 300 maternity patients who were alleged to have been treated at St Thomas’s hospital? When we last discussed this, the allegation was found to have been apocryphal. I would be grateful if the Minister would repudiate it.
I would not wish to get involved in hearsay or gossip or, indeed, the suggestion that some of this stuff is just newspaper chat. I will get back to the noble Baroness, Lady Lister, with a reasoned reply explaining the Government’s analysis of the situation. However, the purpose of this measure is not to do with health tourism at all; it is to do with providing a charge whereby people who stay here for more than six months make a contribution to the NHS. It will make it more difficult for people who are not entitled to access healthcare to do so, but that is a secondary purpose.
Perhaps I might ask for clarification on one point. The Minister skated rather quickly over that fact that “it” will be explained on the visa application form. I wonder what “it” refers to. Will it spell out clearly that all health services freely available to permanent residents will also be available to the applicant as somebody who has paid the surcharge?
My second question concerns people with infectious diseases who may not have paid the surcharge but who will be entitled to free treatment for an infectious disease. What sort of action will the Government take to inform them of their entitlements?
The latter point is more difficult to answer positively; it is something which my noble friend Lord Howe would be in a position to reply to with authority. On the first point, I think that the wording which the noble Baroness suggested is particularly good. It sums up the policy as I have tried to describe it to the Committee.
My Lords, I thank the Minister for his response, which was far more helpful than I had expected. Perhaps I may press him a little further and ask whether he would be prepared to make not just a one-off Statement to the House about the introduction but perhaps to do so annually, or more than once, so that we can have comparative data in different years. That would give us a slightly more robust evidence base than we would have by having just a one-off Statement in the year after a measure has been brought in. A fair amount of information and attention would, presumably, attend its introduction.
I start from the position that an informed House is better able to make decisions and judgments on issues. Having said that, I am not sure that I could commit to making a periodic Statement on this issue, although I know that the Home Office will always respond to questions that might seek updated information of this type, and indeed there are other ways in which this House has the capacity to bring the Government to account on policy. At least by promising this Statement I am giving an indication that we are confident that this particular measure will be a success and raise money for the National Health Service, which will be to the advantage of the taxpayers of this country and a bargain for migrants to this country. I hope that my noble friend is reassured by that point.
My Lords, I am sure that my noble friend is reassured. However, I think that the Committee would also be glad to know—I do not expect the Minister to pin down the detail tonight—the range of issues that will be covered by a Statement. That addresses my noble friend’s point about the data which will be collected. We were quite rightly reminded about the costs of the services, which have not been included in our list. I am sure that there are other points as well. It is the detail that is important and that noble Lords will be interested to know. Perhaps I may leave that with the Minister as something to think about after this stage.
If my long-suffering noble friend will be kind enough to bear with me for one minute, perhaps I may raise one further point which follows what the noble Baroness, Lady Meacher, said. I think that the Minister said in his response that it was already the case that no charges would be made under the NHS for treating infectious diseases such as AIDS and tuberculosis, and that that would still be true for those who are not permanent residents. I believe that I understood that correctly. It is therefore strange that I have had briefings, particularly from the National AIDS Trust and from bodies concerned with drug-resistant TB, asking that it should be made quite clear that there would be no charges for treatment in the cases of these wildly infectious and very frightening diseases. There is, therefore, something of a conflict of understanding which the proposal of the noble Baroness, Lady Meacher, might go some way towards meeting. However, it is troubling when a professional foundation says something quite different from what I understand we have been discussing and have been told here in this Chamber.
I, too, thank the Minister for his response. I am in much the same position as the noble Baroness, Lady Barker, in the sense that it went rather further than I thought it would go, so I genuinely thank the Minister for what he had to say in his reply. I am also sure that the Minister might wish to reflect on the number of points that have been made after he sat down. Bearing in mind that he has said that he will send a letter to pick up any points he has not covered, perhaps he will reflect further on some of the points that have been raised in the past few minutes.
I do not expect the Minister to respond to the questions now because he has said that he will write a letter. He has certainly not responded to some of the issues that I raised but I accept that he will do so in the letter. One of those issues, of course, is why it does not say in the Bill that the money will go to the NHS—why not put that in there? We are not proposing, are we, that the National Health Service will be disappearing within the next few years, so it is not the usual argument that you do not want to put this in the Bill because it might not be there for very long? Or at least I hope that that is not the point. I have not received a specific response yet, but I know that I will when the Minister sends the letter about whether this will be additional money to the National Health Service or whether it will simply be used to reduce the amount that the Government provide.
I also asked about whether there would be any transitional costs as opposed to transitional arrangements. I take it that the Minister will respond to that question, too.
The Minister will be aware that doctors and other parts of the health service have expressed a view that the kind of checks they will have to make will be an administrative burden. I asked a couple of questions about whether a hospital, if a patient has been referred to it by a doctor, can assume that the doctor has done the check and not have to do a double-check, and how a GP can know whether a patient who is already in the country, and therefore not covered by these new arrangements, requires a renewed application to remain here. I am sure that that will be picked up in the Minister’s reply.
My general point—bearing in mind that some doctors have expressed a concern about what they feel will be an administrative burden, and that the Minister has said that a Statement will be made to Parliament—is whether the Statement will also cover whether the arrangements have imposed an administrative burden on doctors. As some doctors have raised the issue, this would be one way of getting an analysis of it and discovering whether there is any substance to it, or whether their fears have not been realised. Perhaps the Minister can also comment on that point when he sends the letter. Once again I thank the Minister for his reply, and I beg leave to withdraw the amendment.
Amendment 61 withdrawn.
Clause 33 agreed.
House resumed. Committee to begin again not before 8.27 pm.