Immigration Bill
Lord Howard of Rising Excerpts(8 years, 9 months ago)
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Lord Rosser (Lab)
We have an amendment in this group which would prevent the new offences that could be committed by landlords and their agents coming into effect until an evaluation of the Immigration Act right-to-rent provisions has been made and laid before Parliament. As has been said, the Bill creates new criminal offences for landlords and letting agents who do not comply with the right-to-rent scheme, under which they are required to check immigration status documents to avoid unlawful letting or landlords and letting agents who fail to evict tenants who do not have the right to rent, with a maximum sentence of five years.
The Government have put down an amendment that provides a defence for a landlord accused of renting to a disqualified person—that they did not know or have “reasonable cause to believe” that the person was disqualified. That is a defence that is available if the landlord, on discovering or coming to have reasonable cause to believe this, has taken “reasonable steps” to end the tenancy “within a reasonable period”. While we welcome the government amendment, it does not of course address the problem that the new offences are likely to create—that they will probably result in at least some landlords taking a risk-averse approach by letting primarily to white British persons with passports. Could the Minister indicate, as regards the government amendment, what kind of guidance, covering what questions or considerations, will be issued by the Secretary of State under proposed new subsection (5B), in government Amendment 62?
The Home Office has carried out an evaluation of the proposed national scheme, which was first introduced in the West Midlands. It was published last October. The Joint Council for the Welfare of Immigrants carried out an independent evaluation, which was published in September last year and showed that some 42% of landlords said that the right-to-rent provisions made them less likely to consider accommodating someone who did not have a British passport. The Home Office evaluation of the West Midlands pilot was limited in its scope; just 68 tenants were interviewed, nearly all of whom were students. It still found that a higher proportion of BME mystery shoppers were asked to provide more information during rental inquiries than other mystery shoppers. Polling last year has already shown that among landlords making decisions on who to let to, around half say that the Immigration Act right-to-rent checks will make them less likely to consider letting to people who do not hold British passports or who “appear to be migrants”. There is a real danger that families who have every right to rent will be passed over by landlords because they lack passports or other obvious documentation of their immigration status.
The right-to-rent scheme was extended across the UK from the West Midlands from the beginning of last month. Is it really too much to ask, in view of the possible adverse consequences of these new criminal offences, under the right-to-rent scheme, that the introduction of the new criminal offences should be delayed until a full evaluation of the impact of the right-to-rent scheme nationally has been carried out?
The reality is that without such an evaluation the Government can give no meaningful or evidence- based assurances that the concerns that have been and are being voiced about the potential adverse impact on many of the one in four families in England who now rent privately of the introduction of the new criminal offences under the right-to-rent scheme will not materialise if more landlords adopt a risk-averse approach to letting. I hope that the Minister will be able to give a sympathetic response to this issue when he replies.
Lord Howard of Rising (Con)
My Lords, I rise to speak to my Amendment 65 in this group, and I declare an interest as the owner of rented accommodation. I made the point in Committee that it can be difficult for the owners of rented property to continually monitor what is happening in their property. It is fine to carry out checks when letting a property, but for a landlord to know on a continual basis who is living in that property can, depending on the circumstances, be very difficult, if not impossible. If it were that easy, there would not be a problem in the first place; the authorities would have prevented the illegal immigration.
The Minister said in Committee that new Section 33A(3) of the Immigration Bill 2014 provides adequate protection to landlords. The Explanatory Notes state that the offences in the provision apply,
“where any adult is occupying the premises, regardless of whether the adult is a tenant under or is named in the agreement”.
I do not quite have the noble Lord’s confidence that there is adequate protection for the landlord. The Minister said in Committee that this legislation is,
“not intended to be used against reputable landlords who may have made a genuine mistake”.—[Official Report, 20/1/16; col. 892.]
As time goes by, it is the legislation that governs actions, not the intentions behind the legislation. The good intentions to which the Minister referred may have been long forgotten and therefore may not prevent the overzealous pursuing the small reputable landlord, against whom the legislation is not intended to be directed.
Can the Minister explain a bit further how the protection about which he spoke in Committee would work? After all, 58% of the rented property in this country is let by people with fewer than five properties—the small property owners—and I do not believe that those smaller landlords should be exposed to a disproportionate or unreasonable risk.
Immigration Bill
Lord Howard of Rising Excerpts(8 years, 11 months ago)
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Lord Howard of Rising
“( ) The landlord does not commit an offence under subsection (1) if the landlord—
(a) has taken reasonable steps to verify the identity and immigration status of the person or people with whom the landlord has concluded the residential tenancy agreement; and(b) has no reasonable cause to believe that any other person who meets the first and second conditions is residing at the property.”
Lord Howard of Rising (Con)
My Lords, I will also speak to Amendments 150 and 150A. I declare an interest as the owner of properties which are let to long-term tenants.
I find it a bit rich that landlords should risk imprisonment for housing an illegal immigrant when it is the Government’s failure in their duty to protect the borders of this country that has resulted in the illegal immigrant being here in the first place. I fully understand the difficulties in controlling our borders, which will inevitably lead to errors, but should the person responsible for the error go to prison? If those responsible for allowing illegal immigration should not go to jail, why should a landlord? I am afraid that I do not share the optimism of the noble Lord, Lord Best, that the power will not be abused at some stage.
New Section 33A says that if any illegal immigrant resides in a property, it will be a criminal offence by the landlord regardless of whether or not that individual was the person to whom the premises were let. Amendment 148A seeks to restrict the criminal offence to those checks which would be reasonable for a landlord to carry out and which are set out in the Landlords’ Guide to Checking Immigration Documents, issued by the Home Office. I can understand that landlords should check the person taking the property, but can the Minister say how in practical terms it is possible for a landlord to check on each person residing in the property once it has been let? Is the landlord supposed to keep a permanent watch? What about the case where a house with a number of bedrooms has a drive and trees and is thus concealed from view?
Can the Minister suggest what reasonable steps could be taken to ensure that the person who has legally rented the premises is not allowing illegal immigrants to stay in the house? Any person renting a house legally who then wishes to house illegal immigrants is hardly likely to announce their intention when taking the property. It will be totally impractical for any landlord to monitor the ongoing use of the property and whether the person renting it has illegal immigrants to stay.
Proposed new Section 33A(7) states that a post-grant contravention is an offence. Essentially, this says that if a person becomes disqualified it is an offence for that person to continue to occupy the premises. How is the landlord expected to know if a person has become disqualified? Will the authorities notify the landlord?
Amendment 150A is to avoid Clause 13 from being retrospective. The draft right-to-rent code of practice issued by the Home Office clearly states at paragraph 3.2:
“The Scheme applies only to residential tenancy agreements first entered into on or after the date on which the Scheme is implemented in the area where the property is located.
A landlord is not required to take any action in relation to residential tenancy agreements entered into before that date, or which are renewed after that date if the renewed agreement will be between the same parties and there has been no break in the tenant’s right to occupy the premises”.
Amendment 150A would bring the Bill into line with the guidance being issued by the Home Office and avoid the unfairness of retrospective legislation.
The issue of discrimination has been mentioned this evening, and I come back to it only in relation to Amendment 148A. It is touched on in the draft right-to-rent code of practice, where it states:
“Whether or not a person … has permission to stay in the UK and has a right to rent is a matter of fact that can be verified. Only the listed documents should be used to reach a decision on whether the person has a right to rent”.
How does this apply to persons who might come to stay at the property unbeknown to the landlord? If my amendment is not included, to prevent a landlord being guilty of a criminal offence without being aware of it, the Bill will create the bias towards discrimination that has been talked about this evening.
The checking service is a method of confirming whether documents are correct—again, this has come up this evening. Can the Minister indicate the likely response time for the service and whether there will be charges for those using it, as the noble Lord, Lord Best, asked?
If it was simple for landlords to do what is being asked, why are the authorities not already monitoring illegal immigrants more effectively? It is not unreasonable for landlords to play their part in helping with the problem of illegal immigration, but what they are asked to do should be reasonable and proportionate. Landlords being subject to imprisonment for something over which, in practical terms, they can have little or no control is not reasonable. I point out that the people most affected by this will be that huge army of very small landlords who do not have agents to act for them, and who will be unable to follow what is happening to a property that they have rented out which may be in a completely different part of the country. I beg to move.
Earl Cathcart
My Lords, before I speak to my Amendment 150, supported by my noble friend Lord Howard, I would like to support his two amendments. The first is Amendment 148A. As drafted, the Bill has no defence for a landlord who has done their best to check the immigration status of a tenant, or for a landlord who is caught out by an unscrupulous tenant. They are merely reliant on the Home Office not prosecuting them in such circumstances. They will still have committed the offence, which will put them in breach of many mortgage companies’ conditions. I therefore support the amendment, as it will provide greater protection for landlords who are deemed to have committed a criminal offence even if they have done all that they can to confirm the status of the tenant.
My noble friend’s Amendment 150A is important because the Government have not yet been clear on whether the right-to-rent checks apply to existing tenancies. Checks part-way through or on renewal of a tenancy will leave landlords and agents with tenants who may then be deported; this will probably lead to a large number of random reports if tenants ignore correspondence or decline to provide documents. I support this amendment, as it provides clarity about when landlords will be expected to undertake the checks.
Amendment 150 in my name is supported by my noble friend Lord Howard and reads:
“A person does not commit an offence under subsection (1) or (7) where they are proceeding diligently to evict an adult who is disqualified as a result of their immigration status from occupying the property of which that person is a landlord”.
As we have already heard, Clauses 13 to 15 make it an offence for a landlord to fail to check the immigration status of tenants who are subsequently found to be in the country illegally. In such circumstances, landlords face being fined up to £3,000 or imprisoned for up to five years. This builds on the Immigration Act 2014, which requires landlords to check the immigration status of their tenants; the 2014 Act contained only the threat of civil penalties for landlords, and it is the Government’s plan for the checks to be rolled out across the country from February this year. That was debated at length under the previous grouping.
As the Bill is drafted, when a landlord is notified by the Secretary of State that a sitting tenant does not have the right to rent in the UK, that landlord is deemed to have committed a criminal offence even before the 28 days that the Bill allows a landlord to evict such tenants have ended. It could well be that this was the result of a landlord being caught out by forged documents that they could not possibly have been expected to detect. It could well be that those same forged documents enabled the illegal immigrant to get into the country in the first place, as my noble friend said, but I do not believe that the immigration officers who allowed the immigrant into the country are deemed to have committed a criminal offence or are fined £3,000 or imprisoned for up to five years—so why the landlord? As a landlord, I do not see how I can possibly spot a forged document if immigration officers cannot, with all their sophisticated equipment.
Lord Bates
The Home Office will investigate this and present cases to the Crown Prosecution Service for a decision about whether to prosecute, and resources will be targeted at the most serious offenders. The intention behind the measures, which is that they should be used only against those landlords who deliberately and consistently flout the law, has been stated unequivocally by Ministers during the passage of the Bill. However, I give an undertaking that I will be very happy to meet my noble friend, officials and other interested Peers to discuss whether there are gaps or particular remedies as regards guidance that could be brought forward.
Lord Howard of Rising
I very much welcome the chance to meet my noble friend to discuss this. I point out, with regard to the guidance—the Explanatory Notes—my noble friend keeps talking about landlords doing the checks, but it specifically says in the guidance to the Bill that it,
“applies where any adult is occupying the premises, regardless of whether the adult is a tenant under or is named in the agreement”.
We are not saying that there is a problem where people have been able to do checks, but that where somebody comes in, the guidance specifically says that those people have to be monitored—and I do not know how my noble friend expects landlords to monitor them. We are not a police force. That is a really important point. The other thing is that whatever anybody says—the noble Lord or my noble friend Lord Best—I cannot think of any legislation that is not abused sooner or later by somebody.
Lord Bates
We need to avoid creating an unintentional loophole that effectively says, “We’ll ask no questions and we won’t contravene the proposals in this legislation”. That cannot be right. I would imagine that most landlords would want to know who was occupying their property. In the event that a property is the subject of subletting agreement, at that point there would of course be a liability to carry out the background checks, which would fall to the people who have made the decision to sublet. However, making a general exemption in those circumstances could create an unwelcome loophole.
Lord Howard of Rising
I thank the noble Lord for his comments and for agreeing to a meeting; that is very gracious of him, and I look forward to that. Depending on it, I may wish to return to this subject, but in the mean time I beg leave to withdraw the amendment.