Immigration Act 2014 (Commencement No. 6) Order 2016

Baroness Hamwee Excerpts

Wednesday 24th February 2016 Lords Chamber

Moved by

[Baroness Hamwee]

That a Humble Address be presented to Her Majesty praying that the Immigration Act 2014 (Commencement No. 6) Order 2016, laid before the House on 11 January, be annulled (SI 2016/11).

Relevant document: 22nd Report from the Secondary Legislation Scrutiny Committee

[Baroness Hamwee (LD)]

My Lords, when the requirements to check immigration status were introduced into what became the last Immigration Act, they were known as the tenant’s right to rent. Initially our concerns were about issues such as the potential for racial discrimination and a dislike of using legislation to send a message. However, tonight I will talk also about the landlord’s right to rent in the sense of hurdles to letting, which we see in these regulations and in the Act with provisions that require landlords to be part of our border enforcement.

It is no secret that the requirements were included in the 2014 Act. Following negotiations between the coalition partners, the Liberal Democrats agreed to their inclusion in that legislation on the basis that there would be a pilot—

“a carefully phased approach to implementation”—[Official Report, 3/4/14; col. 1089.],

to quote the then Minister. He said that the rollout would allow proper evaluation to ensure that the scheme delivered its objectives without unintended consequences. I am sure that it was not intended to have such an impact on legal immigrants and British citizens. Whether one calls it a pilot, phasing, a rollout or a pathfinder, it is common sense to evaluate and assess experience and, where necessary, to adjust provisions.

However, the Prime Minister announced a nationwide rollout from the West Midlands pilot immediately on winning the 2015 election while the pilot was still in progress. Indeed, the Home Office’s evaluation was published only on the same day as the Pubic Bill Committee in the Commons took evidence on the current Immigration Bill, which extends the provisions from civil sanctions to criminal penalties. So, noble Lords may understand why we regard this as about using legislation to send a message.

My Motion would stop the rollout. Labour has a Motion to Regret calling for more consultation. I do not believe that it is more consultation that is needed—it is more evidence and more experience of a limited scheme. I cannot hide my disappointment that the Labour Front Bench will apparently not support us in our Motion, particularly given that the Labour Front Bench in the Commons was keen to support Tim Farron’s equivalent Motion to Annul. One aspect of scrutiny—this House’s job—is to consider the workability of the Government’s policies. To quote again from the Minister’s assurances in 2014: “Checks”—that is checks on prospective tenants—

“should be light touch in nature and workable, without creating additional burdens and costs”.—[Official Report, 10/3/14; col. 1651].

He also said that the scheme need not “introduce excessive bureaucracy”. I do not think that that would resonate with the letting agent whom I heard interviewed on Radio 4’s “You and Yours” programme. What he said was: “I have become an immigration officer”. Indeed, he has become an immigration officer who is liable to civil penalties and who, under the current Bill, will face criminal sanctions.

Landlords have to make reasonable inquiries as to the immigration status of all the occupants before letting a property. Well, it is not actually that easy. I have been through the material on the Home Office website. The user guide is 39 pages long and there are 12 hyperlinks—there may be more; I may have miscounted —plus a code of practice plus a short guide. There are 25 types of document which may show immigration status, more if there has been a name change. These have to be examined and copied. And not all of them are invalid if the expiry date has lapsed.

A checking agent on the same programme said that there are 400 documents in the EU that would support the right to rent. Leaving aside unfamiliar documents, how easy is it to spot fakes? Last week, the court to which Ryanair successfully appealed against a fine for not spotting forged Greek passports—neither had the Spanish border force, as it happens—said that the way that regime was operated by the Home Office,

“offends fairly basic concepts of justice and indeed the rule of law”.

Landlords are not trained to spot forgeries. Indeed, the Residential Landlords Association found that more than 90% of landlords who were surveyed had not received information from the Government about rent checks, and 72% did not understand their obligations. All this from a Government who are keen on deregulation.

Yes, a Home Office inquiry line is available during office hours. But no messages can be left out of hours —I know because I phoned it out of hours. Most tenanted property is let by landlords with only one or a very few properties, and I dare say that many viewings are outside office hours in what is a very fast-moving market.

--- Later in debate ---

[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, I thank all those who have spoken in this debate. I begin by putting on record that my wife is a small-scale private sector landlord; I want to draw that to the attention of the House.

In considering these matters, I draw your Lordships’ attention to the fact that we had a substantial debate on this issue on 20 January on Amendment 148 to Clause 13, which was from, as I recall, the noble Baroness, Lady Hamwee. That went on for some time and raised many of the issues that have been raised today. If, because of the hour, I touch on a number of the issues lightly as we go through, I think it will be helpful for those who have genuine concerns about this to look again at the Official Report for the second day of Committee, and I am sure we will have the opportunity to revisit this on day one of Report on 9 March. For those reasons, I trust that the House will bear with me if I try to deal with some of the headline issues that perhaps have not been raised before.

First, I shall deal with the context of this measure. The context to legislation is very important. This is a commencement order, Commencement Order No. 6, for a piece of legislation that was passed by the coalition Government. The changes about which many concerns have been raised relate to the Immigration Bill currently going through your Lordships’ House but this relates firmly to the Act that was passed by the coalition Government.

It has to be said that the notion that landlords should have a duty to check that those to whom they rent properties are legally entitled to be here was first introduced by the then Labour Government in the Immigration and Asylum Act 1999, which introduced a duty on social landlords to undertake checks to ensure that they were letting properties only to people who had a legal right to be here. This measure simply extends that further across.

We are of course talking here about human beings and I think that we all recognise the humanity of this, but we are also talking about real problems that are faced in this country. We talk constantly about pressures in the housing market, and it could be that part of that pressure is because a number of properties in the private rented sector are currently rented out to people who have no legal right to be here, which means that they are here illegally and therefore breaking our laws. The question is: should we as a Government, and indeed as a Parliament, be endorsing and basically offering protection to people with no legal right to be here, who are breaking our laws and abusing our hospitality and should leave, to the potential disadvantage of people who are legally here and entitled to rent a property? That is the first point.

The second point, to which a number of issues relate, is on the timing, and I recognise that that is a key point. The original announcement about the pilot exercise was in September 2014—I am looking at the noble Lord, Lord Best—and the original pilot or phased introduction was undertaken some time ago. I readily accept that it was undertaken as a concession to arguments made, not least by the noble Lord, Lord Best, at various stages during the passage of the Immigration Bill through your Lordships’ House. The pilot was set up in the West Midlands, which is the second largest conurbation in the UK and quite an ethnically diverse area. It was therefore deemed to be an appropriate setting in which to test out how this would work. On top of that, an independent panel was set up, which of course the noble Lord, Lord Best, co-chairs. The panel includes representatives from the British Property Federation, the Residential Landlords Association, which has been referred to, the National Approved Letting Scheme, the UK Association of Letting Agents, the Association of Residential Letting Agents, the Royal Institution of Chartered Surveyors and the National Housing Federation. It also includes Shelter, Crisis, Universities UK and, crucially, on the element of discrimination, the Equality and Human Rights Commission.

Why, then, was the decision taken to do this—a point which the noble Lord, Lord Rosser, rightly sought clarification on? The answer is that it was in the Conservative Party manifesto. We stood at the election and our manifesto said that we would clamp down on people who are here illegally to stop them being able to work, rent properties, open bank accounts and obtain driving licences. We said that we would do all those things. Therefore, when we were elected by the people to do that, we announced that we would get on and do it. This is not happening across the country, to take the point made by the noble Baroness, Lady Lister. We introduced it in the West Midlands and that pilot has now been running for over a year, during which we have been gathering the evidence of how it has been operating and evaluating it. This order will enable it to be rolled out to the rest of England but of course further orders will be required for it to be rolled out into Scotland, Wales and Northern Ireland.

On the timing, I took on board the points that were made by my noble friends Lady Gardiner, Lord Hailsham and Lord Cathcart, among others, who were concerned about the time it takes to get documents. That is why a lot of this information can be checked online: there is an online checking service, which is not a premium service, as we said the previous time we discussed this, but a local-rate number that people can ring up. At the moment, that government service delivers 100% as regards its target time, turning work around in 48 hours. When people obtain references at present when a landlord lets out a property, surely they want to establish whom they are letting out the property to. They require some identification and may require proof of employment, with a reference from the employer or from previous landlords. All of that takes time. This part simply checks that the person who is there is legally entitled to be in the UK, and I would have thought that that would be a standard part of due diligence that should be happening in most cases. Therefore that element is there.

I recognise that we all have a deep concern about discrimination in the housing market. That was one of the reasons why the mystery shopping exercise happened there. That sounds like a trivial thing, but it is an established procedure used by all retailers around the country. We used an external firm to undertake the exercise and half the visits were undertaken by BME couples, who were seeking accommodation. What they identified was, sadly, that there is still discrimination— that we know—but that the discrimination levels experienced in the West Midlands control area or pilot area were similar to those in the other areas being used as a comparator. We have to make sure that landlords are more aware of the duties that they already have under the Equalities Act 2010 and the racial discrimination Act of 1965 to ensure that there is no discrimination.

The discrimination point is a key area. We are determined to go much further on this and I know that the independent panel is keen to do that as well. We are updating the code of practice to ensure that landlords know their duties and obligations to ensure that properties are fairly let to people, irrespective of their background. We have done that with great assistance from the Equality and Human Rights Commission, which of course is part of that panel.

A number of noble Lords referred to asylum seekers and refugees. The legislation exempts refuges, hostels and student accommodation, and, where there are vulnerable people who may have lost documents and what have you, there are special procedures to ensure that they are protected.

The target of this legislation is two groups of people. The first group is those who have no right to be here and should leave, and therefore should not be occupying premises that should be made available to people who have a legal right to be here. The second group, as the noble Lord, Lord Best, was right to point out, are the unscrupulous landlords who charge extortionate rents for appalling accommodation—I have seen reports on that type of accommodation that people are actually living in. These are the people we have in our sights. All a landlord needs to do is undertake a basic check of the documents and keep a copy of them. They then have a statutory defence that they have complied with the law.

A number of very specific points were raised. Perhaps, if the House will allow me, I can undertake to cover those in communications. We are having ongoing conversations about this: we have had several meetings at the Home Office and other meetings. We are going to come back to this. There are some areas where I think we can get some movement to make sure that there is greater reassurance. However, this particular element relates to legislation from 2014 for which there has been a pilot and a phased introduction. We are confident that the safeguards are in place, but it will continue to be kept under review. Therefore, I commend the commencement order to the House and urge the noble Baroness to reconsider pressing her fatal Motion.

[Baroness Hamwee]

My Lords, I am conscious of time. I hope that in my opening speech I managed to anticipate many of the points that have been made in the debate, and I shall not seek to repeat them. What I had not anticipated was hearing the real-life experiences of three landlords on the Benches opposite. I thought it was very telling when they shared with the House that they became aware of the requirements through their membership of the House. Their talk of real experiences reminded us of the concern of landlords about voids and losing rents, and the inevitable and unintended discrimination that may occur because of the situation.

It is right that I respond briefly to the noble Lord, Lord Best. No one could doubt the work that he has put in to this or that the panel that he co-chairs takes the issue very seriously. However, the Home Office evaluation, which took place some time ago, demonstrated many of the problems. The panel continues to work but we do not know publicly what its conclusions are and what its continuing work is. Perhaps I may summarise the noble Lord’s view as being that the burden on landlords was exaggerated. The Residential Landlords Association has made its views quite clear and it supports the Motion.

The pilot was introduced as a result of negotiations between the partners in the coalition Government in 2014. That negotiation was the basis of the inclusion of the provisions in the Bill at that time. Several noble Lords have quoted the assurances that were given about the evaluation. We were told that there would be a proper one based on a big enough trial. The then Minister said:

“Any decisions on a wider rollout will be taken in the light of the evaluation after the general election during the next Parliament”.—[Official Report, 3/4/14; col. 1090.]

However, the decision was taken immediately after the election before the pilot had even been completed.

I agree that immigration legislation should not be used to crack down on bad landlords. We should use other means for that. Nor do I think that we should lay problems in the housing market at the door of illegal immigrants. Hardly a cigarette paper can be put between the points that I made and those made by the noble Lord, Lord Rosser, who I think used even stronger language than I did, but I think that his argument is, “We shouldn’t behave badly. We should accept that this is policy but ask the Government to think about it all again”. However, if we cannot ask the Government to think about it on the basis of a pilot on which there has been a report, and if we cannot amend the order, how do we do our job? I think that our job is to show our view of the position so far, which is, as I said, that the requirements should not have been rolled out beyond an inadequate pilot. I wish to test the opinion of the House.