Immigration Bill (Seventh sitting)

James Brokenshire Excerpts

Thursday 29th October 2015 Public Bill Committees

[The Chair]

With this it will be convenient to discuss new clause 5—“Compensation for an illegal working closure notice where order is cancelled/no compliance order is given—

‘(1) Where an illegal working closure notice is issued and—

(a) is subsequently cancelled in accordance with paragraph 3 of Schedule 3 to this Act, or

(b) no illegal working compliance order is made (whether or not an application is made for such an order)

the Secretary of state shall pay compensation to the persons listed in subsection (2).”

(2) The Secretary of State shall pay compensation under subsection (1) to—

(a) the person to whom the notice was issued or, if he is dead, to his personal representatives;

(b) a person who lives on the premises (whether habitually or not);

(c) any person who has an interest in the premises.

(3) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State before the end of the period of two years beginning with the date on which the notice is issued.

(4) But the Secretary of State may direct that an application for compensation made after the end of that period is to be treated as if it had been made within that period if the Secretary of State considers that there are exceptional circumstances which justify doing so.

(5) The question whether there is a right to compensation under this section shall be determined by the Secretary of State.

(6) If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State.

(7) In assessing so much of any compensation payable as is attributable to suffering, harm to reputation or similar damage, the assessor must have regard in particular to—

(a) the conduct of the person to whom the notice was given;

(b) the conduct of the immigration officer.

(8) If, having had regard to any matters falling within subsection (9)(a) or (b), the assessor considers that there are exceptional circumstances which justify doing so, the assessor may determine that the amount of compensation payable is to be a nominal amount only.

(9) The total amount of compensation payable must not exceed the overall compensation limit. That limit is—

(a) £10,000 in a case in which there is no element for loss of earnings;

(b) £50,000 in any other case.

(10) The Secretary of State may by order made by statutory instrument amend subsection (9) so as to vary overall compensation limit.

(11) No order may be made under subsection (9) unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.”—(Keir Starmer.)

To provide for statutory compensation to the person to whom an illegal working closure notice is issued and anyone living on the premises or with an interest in the premises in the event that the order is cancelled or that no application is subsequently made to a court for a compliance order, or such an application is made but the court refuses to grant it.

Brought up, and read the First time.

[The Minister for Immigration (James Brokenshire)]

I welcome you to the Chair, Mr Owen, for your first time on our line-by-line analysis of the Bill.

Clause 11 gives effect to schedule 2, which sets out the regime for illegal working closure notices and illegal working compliance orders. The clause and schedule provide new powers to deal with businesses that repeatedly flout the law in this area. Their use would be targeted on the most serious cases where attempts to tackle an employer’s use of illegal workers through the established civil penalty scheme or prosecution have not prevented them from continuing to behave illegally.

When immigration officers conduct an enforcement visit under existing powers to an employer’s premises, any illegal workers identified may be arrested and detained, and the employer may be liable for a civil penalty or prosecution for an offence. Despite this, the employer may continue to use illegal workers who are not apprehended at the time of the visit, or recruited subsequently. Furthermore, some businesses dissolve to evade sanctions, reopen in a new name and continue their non-compliance as before. The intention is to use this provision to break the cycle of business behaviour.

The provisions create a new power for immigration officers to close premises for up to 48 hours in certain cases where the employer has previously faced sanctions for employing illegal workers. Unless the closure notice is cancelled, an application must be made to a court for an illegal working compliance order. The compliance order may extend the closure of the premises or otherwise direct the business to perform certain steps to ensure that illegal workers are not employed or used to provide services on behalf of the business operating from the premises.

The provisions follow a similar approach to the power to close premises associated with nuisance or disorder in part 4 of the Anti-social Behaviour, Crime and Policing Act 2014. New clause 5 has not been spoken to formally as yet, so I look forward to listening to the debate and hearing the points that will be made by the hon. and learned Member for Holborn and St Pancras.

The new clause is intended to make specific provision for compensation to be paid to those affected by an illegal working closure notice served under schedule 2. Specifically, it seeks to address the situation where a closure notice has been imposed but cancelled, or where an application for a compliance order is refused by the court. The new clause seeks to establish maximum limits for compensation payable in certain circumstances, the criteria for assessing compensation claims, and time limits for submitting them.

I presume that the new clause is intended to provide additional safeguards and to encourage immigration officers to exercise caution in serving illegal working closure notices, because of the potential compensation consequences if such notices are then cancelled or compliance orders are not obtained from the courts. However, we judge that the clause is unnecessary, albeit that I stand ready to listen to the arguments that will be proffered, because the existing provisions in the Bill concerning compensation already, in our view, strike the right balance between protecting the interests of legitimate owners and occupiers of affected premises and appropriate expenditure of public finances. Nevertheless, I look forward to hearing the further points that might be raised.

A closure notice may be cancelled only when employers can show that they would be excused from paying a civil penalty. In most cases, that will mean that they can show evidence that valid right to work checks are being conducted in relation to all illegal employees. It is currently operational practice that immigration officers will give the employers an opportunity to provide such evidence before taking enforcement action.

For that reason, and since the Bill expressly prevents a notice from being issued when evidence of right to work checks is provided, the Government expect few closure notices to be cancelled in the short period between issue and consideration by the court. That period is a maximum of 24 hours, except when extended to 48 hours by an immigration inspector. Therefore, it is expected that in the majority of cases premises will be closed for much less than 24 hours, so any financial loss should be kept to a minimum.

In relation to compensation cases—in other words, when cases have gone to court—when compliance orders were not made by the courts, it must be emphasised that, under the Bill, courts have discretion about whether to make such an order. There is a range of reasons why such an order is not made. For example, it may be that premises are about to be sold to an innocent third party. A court’s decision to refuse an application does not necessarily mean that immigration officers were wrong to issue a closure notice. Nor does it mean that the owner or occupier of the premises was compliant with illegal working rules. For those reasons, compensation is not automatically available when an application for a compliance order is refused by the courts.

However, in rare cases in which immigration officers make a mistake and it later turns out that illegal workers were not employed at or in connection with the business operating from the premises, paragraph 15 of schedule 2 does not prevent an affected employer, owner or occupier of the premises from applying for compensation. The Bill places responsibility for determining compensation claims on the courts, not the Secretary of State as proposed in the new clause, and it imposes no limits on the level of compensation payable. To make the Secretary of State the decision maker would lead to lengthy and costly satellite litigation, which the provision seeks to avoid.

Under the Bill, an independent court will determine both the right to and level of compensation, obviating the need for an independent assessor. Lengthy limitation periods such as the two years proposed in the new clause are normally provided when potential applicants would not be aware of the event giving rise to a claim until some time afterwards. As the Bill contains safeguards in relation to the provision of notices, that is not the case.

However, in rare cases in which the fact that the premises have been closed is not immediately apparent to a potential applicant, we regard the three-month limit currently provided in paragraph 15 for making a compensation application to be sufficient. Three months is in line with other limitation periods, such as that for judicial review and the compensation provision for closure orders in section 90 of the Anti-social Behaviour, Crime and Policing Act 2014. When the issue of compensation arises, it is important that the matter is concluded promptly in the interests of all concerned. Immigration officers will be trained to exercise appropriate caution before they use these important new powers to tackle repeat abuse of illegal working legislation.

Schedule 2 incorporates a number of important safeguards that limit the impact of closure notices before a compliance order is obtained from the court. It is important to bear in mind the context in which such orders will be served: on employers who have repeatedly flouted the law by employing illegal workers. It is right that occupiers of premises such as those employers who have failed to take reasonable steps to prevent illegal working from taking place should not be entitled to compensation. The Government have sought to strike the right balance between tackling employers who repeatedly flout illegal working legislation and protecting the interests of legitimate businesses and workers. That is reflecting in the drafting of paragraph 15.

I look forward to the debate on the new clause, but I hope that, on the basis of what I have said and anything I may say after the new clause has been spoken to, hon. Members will feel able not to move it.

[Keir Starmer (Holborn and St Pancras) (Lab)]

It is a privilege to serve under your chairmanship, Mr Owen. The new clause would provide a statutory compensation scheme to persons to whom an illegal working closure order is issued in circumstances as described by the Minister. The purpose is not so much to urge caution on the part of immigration officers as to recognise that it is unusual to have a closure power vested in the Executive rather than in the judiciary. That power is vested in a member of the Executive with quite a draconian, albeit short, power to close down a premises for 24 or 48 hours. I accept that the chief immigration officer must go through a number of hoops to satisfy himself or herself that it is appropriate to make an order. The new clause drives at the situation in which a notice is issued and subsequently cancelled or no compliance order is made.

The obvious case where the new clause would bite is where there has been an error on the part of the chief immigration officer, and there will be errors. It is impossible for anybody to argue that there will not be errors in the issuing of closure orders. In a case in which an error has been made, a business is closed down when it should not have been. The new clause would provide compensation or a scheme for compensation to the individual who loses out as a result. I think there is no disagreement between the Minister and me that justice would demand, in the event of an error, that if someone has lost business, they ought to be compensated. I think that that is an agreed principle, but the Minister says that paragraph 15 of schedule 2 makes the new clause unnecessary.

The problem is that paragraph 15 of schedule 2 provides a power to apply to courts for compensation within three months. Putting that to one side, paragraph 15(3) sets out the circumstances in which an order may be made. Those circumstances are prescribed in sub-paragraphs (3)(a) to (d). Unless I am mistaken, the fact that the order was simply made in error is not within any of those four sub-paragraphs, which cover circumstances such as,

“not otherwise associated with the use of the premises”

or, if associated, “took reasonable steps.” Another is, “incurred financial loss”.

I accept that anybody who falls within paragraph 15(3)(a) to (d) would perfectly well be compensated. In principle, there is nothing wrong with the court doing that. It would make sense for the court to do it at the same time that it is considering the matter in the round. The Minister will correct me if I am wrong about this. I do not think that paragraph 15(3)(a) to (d) of schedule 2 covers a case in which it is accepted by all sides that a chief immigration officer has simply made a mistake by closing down a premises, and a business incurred financial loss. Unless there is a sweep-up and I have misread it, that is my understanding.

[James Brokenshire]

Paragraph 15(3)(d) of schedule 2 says

“that having regard to all the circumstances it is appropriate to order payment of compensation in respect of that loss.”

That may address some of the other issues that he highlights. I will let the hon. and learned Gentleman reflect on that.

[Keir Starmer]

I will do so; that may be helpful. If the record shows that it is understood that that covers the ordinary case of an error, part of the new clause may not be necessary. It leaves a gap when the order is simply cancelled and never comes before a court. Will the Minister reassure me that in the circumstances of an order being cancelled, under schedule 2, the person incurring loss can get before the court for the compensation order? At the moment, I think the scheme is premised on the chief immigration officer applying to the court to have the order confirmed. In other words, even where the chief immigration officer does not apply to the court at all because it is recognised that it was an error—

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[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Owen.

As with the previous clause, we seem to be giving immigration officers too much power without the relevant training or proper judicial oversight. When he gave evidence last week, Colin Yeo was asked whether he was concerned about the powers to be given to immigration officers. He said that he was, “Very concerned”, and said of the chief inspector:

“In a couple of reports from March 2014, for example, he found that immigration officers were granted the power to enter business premises without a warrant in two thirds of cases, without justification; he also found unlawful use of power, ineffective management oversight, major variations in local practice and inadequate staff training across all grades—really serious concerns are being raised. Reports on removals and emergency travel documents are, again, very critical of Home Office management of the process and training. The idea that more powers should be given to people who are already exercising them in a very questionable way is somewhat dubious, in my view.”––[Official Report, Immigration Public Bill Committee, 22 October 2015; c. 107, Q224.]

We received the Minister’s letter this morning and are grateful for that, but will he clarify “reasonable grounds” for those in the room who are not lawyers, which is probably quite a few of us? As things stand, the scope of the closure powers are far too wide.

The Bill proposes that an officer has the power to close an employer’s premises if satisfied “on reasonable grounds” that the employer is employing an “illegal worker”, as defined, and if the employer has been required to pay a civil penalty in the past three years, has an outstanding civil penalty or has been convicted of the offence of knowingly employing an illegal worker or a person whom the employer had reasonable cause to believe was not entitled to work. The initial closure may be for up to 48 hours. The immigration officer may then apply to the court for an illegal working compliance order, which can prohibit or restrict access to premises for up to two years.

Why are such measures required when criminal sanctions are available? What will ensure that the measures are not used in an oppressive manner? Yes, we need action against bad employers who flout the rules, but the consequences are potentially terrible if enforcement gets it wrong. There should at least be proper safeguards, such as judicial oversight. What about the effect on innocent workers and their families whose workplaces are shut down? The Government should think again.

[James Brokenshire]

I am grateful for all the comments. In response to the initial points made by the hon. and learned Member for Holborn and St Pancras, I refer to the provisions contained in paragraph 15 of schedule 2, as I did when he intervened, in particular sub-paragraph (3)(d) about discretion. I also draw his attention to sub-paragraph (1), which states:

“Subject to sub-paragraph (4), a person who claims to have incurred financial loss in consequence of an illegal working closure notice or an illegal working compliance order may apply to the court for compensation.”

I do not read that as someone having to go through to the order stage. In other words, a notice has been issued, but it is open to seek redress through the court under that provision.

It is also relevant to say that for a mistake to have taken place, the grounds specified in paragraphs 3 and 5 to schedule 2 would equally have not been found to have been made out. That implies that a mistake has been made. Therefore, although I pointed to paragraph 15(3)(d) to schedule 2, obviously some of the earlier provisions would be redolent—for example, paragraph 15(3)(b):

“if the applicant is the owner or occupier of the premises, that the applicant took reasonable steps to prevent that use”.

It all ties back.

[Keir Starmer]

May I clarify something, if possible? My concern—if this is a misreading, then it is a misreading— is that paragraph 15(1) of schedule 2 gives the power to apply for compensation, and that the circumstances in which the court may order it are in paragraph 15(3). Those are the only circumstances in which it may be ordered. I read paragraphs 15(3)(a), (b), (c) and (d) as conditions that must all be satisfied. I say that because paragraph (d) is not free-standing:

“having regard to all the circumstances it is appropriate to order payment of compensation in respect of that loss.”

The word “that” can only refer back to paragraph 15(3)(c). They are not disjunctive; they are conjunctive. That might just be the way that it is drafted, but paragraph 15(3)(d) makes no sense as a free-standing provision. It must relate back to the others.

[The Chair]

We get the point. The Minister is about to respond.

[James Brokenshire]

I am happy to consider the narrow point raised by the hon. and learned Gentleman on the normal legal definitional drafting issues surrounding the use of “and” and “or”, which he will understand from all sorts of legal documents that he has undoubtedly read. I am content to look again at the provision and see whether any further clarification is needed. My hon. and learned Friend the Solicitor General, sitting alongside me, is shaking his head, but in fairness to the hon. and learned Gentleman, I am happy to reflect further on the narrow point that he has raised and consider it carefully.

I underline the general point that in those rare cases—it is for a limited period as well, just 24 or 48 hours—where a mistake is made and the issuance of a notice does not proceed to an order, any loss that may crystallise is likely to be small, because the period of closure is short. However, I do not make any judgments on that, given the nature and size of the businesses that might be involved and so on. In those circumstances, if it turns out later that illegal workers were not in fact employed at or in connection with the business operating on the premises, paragraph 15 does not prevent an affected employer, owner or occupier of the premises from applying for compensation. I hope that that is a helpful response.

The hon. and learned Gentleman drew some comparisons involving the time periods, and rightly highlighted the process and steps that must be gone through. The concept is modelled, as I have indicated, on other forms of legislation with which he will be equally familiar; I refer him to the Anti-social Behaviour, Crime and Policing Act 2014. I can think of other circumstances, such as under licensing laws, in which temporary closure notices may be granted to the police or a licensing officer in certain circumstances. The concept of a short-term mechanism is understood.

Equally, that addresses the point made by the hon. Member for Paisley and Renfrewshire North about whether it is appropriate for the Executive to have such a power. Yes, it is, in the constrained way that the power is structured within the schedule. It provides an appropriate system and process, as well as judicial oversight in the fact that the court must assess, confirm and validate the power. As we have just said in the discussion on compensation, if the officer gets it wrong, compensation can be awarded through the courts.

[Paul Blomfield (Sheffield Central) (Lab)]

In terms of objectives, we are on the same page in seeking to ensure that repeat-offending employers are dealt with robustly. A moment ago, in his response to my hon. and learned Friend the Member for Holborn and St Pancras, the Minister said that the orders would be used in a constrained way. Does he understand the anxiety, given that the schedule does not explain that constrained way, or can he point me to something that I am missing?

[James Brokenshire]

I can, if the hon. Gentleman looks at the triggers for the use of the power in paragraphs 15(3) and (5), and the reasonable grounds that would need to be satisfied. I would highlight the second condition in paragraph (5):

“the employer, or a connected person in relation to the employer...has been convicted of an offence under section 21...has, during the period of three years ending with the date on which the illegal working closure notice is issued, been required to pay a penalty under section 15 of the 2006 Act, or...has at any time been required to pay such a penalty and failed to pay it.”

In other words, it is not trying to look for first offenders. Because of the two conditions in paragraphs (3) and (5), it is trying to get at some of those businesses and employers who are not doing things properly and who have already had some form of sanction applied to them.

I mentioned phoenix companies in my opening comments. We have dealt with the concept of a connected person in paragraph 8 of schedule 2. It is important. We know of circumstances in which people will seek to try to subvert the law by creating a new company to try to get round the rules and requirements. They might say it is the first time because they are not able to pierce the corporate veil. So we have considered this measure carefully and we judge that it is appropriate to have such safeguards and that it has that element of the court being able to intervene for compensation or for confirmation of any extended period. This is an important tool to support and take action against businesses that are acting inappropriately.

I say to the hon. Member for Paisley and Renfrewshire North that the matter is about the impact and consequences. I do not think that he would tolerate a business that employed people illegally on a serial basis, because people who are in his constituency and in this country lawfully should have the jobs, rather than the people who are not here lawfully and are staying here illegally. We are seeking a balanced approach and we judge that the manner in which this measure is constructed, and on the basis of experience in other spheres, it is appropriate in terms of the operational benefit that it provides as well as the safeguards contained within it. For those reasons, I will oppose new clause 5. I hope that hon. Members will be minded to see that clause 11 stands part of the Bill.

Question put, That the clause stand part of the Bill.

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Illegal working closure notices and illegal working compliance orders

[James Brokenshire]

I beg to move Government amendment 11, in schedule 2, page 58, line 20, at end insert—

‘( ) Where a person is on immigration bail within the meaning of Part 1 of Schedule 5—

(a) the person is to be treated for the purposes of sub-paragraph (3) as if the person had been granted leave to enter the United Kingdom, but

(b) any condition as to the person’s work in the United Kingdom to which the person’s immigration bail is subject is to be treated for those purposes as a condition of leave.”

This amendment ensures that individuals on immigration bail who are granted permission to work in the United Kingdom are not considered illegal workers for the purposes of illegal working closure notices and compliance orders. The amendment reflects the approach to immigration bail taken elsewhere in the Bill – for example in new section 24B(8) of the Immigration Act 1971 as inserted by clause 8.

The Government amendment rectifies a technical omission in the drafting of paragraph (3) of schedule 2, which defines when illegal working takes place for the purposes of the new regime of closure notices and compliance orders. The change is necessary to ensure consistency between the definition of illegal working in schedule 2 and definitions used elsewhere, such as in the Immigration, Asylum and Nationality Act 2006, which provides for the civil penalty scheme and the offence of knowingly employing an illegal worker.

The definition also appears in the new illegal working offence in clause 8. Schedule 2 does not exclude persons who are granted immigration bail but are exceptionally permitted to work from the definition of an illegal worker. The vast majority of those on immigration bail will not be granted such permission, but that scenario may apply rarely in asylum cases in which the applicant has waited more than 12 months for a decision on their case and the delay is not attributable to them. Such persons may be permitted to engage in specified occupations in which there is a shortage of labour supply. The amendment will ensure that such persons do not constitute illegal workers for the purposes of the closure notice and compliance order scheme.

Amendment 11 agreed to.

Schedule 2, as amended, agreed to.

Clause 12

Offence of leasing premises

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[Keir Starmer]

If it is convenient, I shall make some opening remarks about clause 12 and then take each amendment in turn. Our position is that the right to rent scheme should not be rolled out. When the scheme was first put into legislation in 2014, concerns were expressed across the House and also by landlords. I think that pretty well all the landlords—

[James Brokenshire]

I am interested in the hon. and learned Gentleman’s opening comments, because previously on the 2014 Act the Opposition said that they agreed with the principle and the approach taken in relation to the right to rent scheme, and there are parallels with the right to work scheme introduced by the last Labour Government. I am interested in why there has been a sudden U-turn in the approach taken by the Opposition.

[Keir Starmer]

I thank the Minister for that intervention. I think that the position was that the scheme should be subject to a pilot, which would be evaluated in a transparent way before the scheme was rolled out. Assurances were given—I am very happy to provide them to the Committee—by, I think, the then Minister about that evaluation before the scheme was rolled out any further. That assurance was given at the Bill stage, if memory serves me right. Opposition Members may remember that this was an issue when the Committee that considered the 2014 Bill was given an assurance by the Government that the scheme would not be rolled out any further until there was that evaluation. I understood that to be the position that underpinned the 2014 regime. I was therefore interested to read that the Prime Minister announced the roll-out before the pilot had ended. He announced the roll-out across England and Wales on, I think, 25 May.

[James Brokenshire]

The hon. and learned Gentleman will equally know that it was a commitment in our manifesto to proceed with the extension of the roll-out and that the date for the roll-out and the manner of that was announced only off the back of the evaluation, which was published when I made a formal announcement of this very recently.

[Keir Starmer]

I accept that, but the original intervention was to ask on what basis there had been a U-turn. My response to that is that the 2014 provisions proceeded on the basis that there would be a pilot and there would be no roll-out until the pilot was evaluated. [Interruption.] I will get to my remarks about the pilot in a minute. We have obviously had the opportunity to take a closer look at the evaluation that we were given, I think, last Tuesday, and I have some observations to make about it.

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[James Brokenshire]

I am grateful to the hon. and learned Gentleman for highlighting the fact that the Home Office science team did not conduct the survey on the basis of a self-selecting sample. Indeed, its shape and framework was informed by the Landlords Panel, of which there were representatives from a broad range of interest groups such as tenants, NGOs and landlords. They were involved in shaping the manner in which the evaluation was conducted. While I note the hon. and learned Gentleman’s comments in questioning the basis of the evaluation, it was actually done with the approach in mind.

[Keir Starmer]

I obviously accept that proposition, but the Home Office itself makes comments in the evaluation about the statistical significance of the mystery shopping exercise. It says:

“Statistical significance testing was not conducted on the data due to the relatively modest number of individual mystery shops completed at a sub-group level.”

Later, it says:

“Small sample sizes inhibit the ability to draw robust conclusions”.

So the Home Office itself is saying in its evaluation, “We’re not sure about the statistical significance of part of the valuation and the sample sizes are too small to draw any robust conclusions.” In terms of putting the document forward as a comprehensive evaluation of the scheme to deal with the concerns that existed in 2014 and to satisfy a number of concerned communities and individuals that it is safe to proceed, this is a small sample with limitations that the Home Office recognises in the evaluation.

If no one is even close to the statistical significance of part of the evaluation, it is very difficult to say that any conclusions can be drawn from it at all. That goes to the central question of discrimination; it is a very thin evaluation, predominantly of students. [Interruption.] If the Minister would like to correct me, I am very happy to be corrected. When I mentioned 60 of the 67 tenants being students, no one got up to intervene so I assume that I am right. If anybody wants to argue that that is a representative sample of tenancies across England and Wales, I will happily sit down and listen to the intervention. If I am right about it, it simply is not a representative sample.

[James Brokenshire]

I will deal with it later.

[Keir Starmer]

With that, I will speak to amendment 71, which is designed to give landlords facing criminal prosecution a defence if they act to evict the illegal tenant within two months of becoming aware that the tenant is illegal. The scheme has flaws, which I have attempted to outline. It includes provisions that put landlords in an impossible and unacceptable position because they become criminals on a date when they cannot do anything about that criminality. If it is brought to a landlord’s attention that they have someone in their premises who does not have a right to rent, they are duty-bound. It would be entirely appropriate for them to begin eviction proceedings from the moment they find out about the illegal tenant, but the landlord is already criminalised. They have become a criminal; they simply have not been prosecuted and charged. I cannot see any reason or need for that. This defence simply provides for a space when a reasonable landlord, acting reasonably, would take the necessary measures to ensure that the person who did not have the right to rent was removed. It is difficult to think why that amendment should not be accepted. In other words, I cannot see a logical reason or coherent and principled argument that it is necessary to criminalise a landlord when he or she is trying to act properly, according to what he or she has just been told. Amendment 71 would deal with that situation.

It is probably convenient to deal with amendment 87 at the same time, although it is jumping the grouping, because it deals with the same provision. Landlords raised concerns that they would be committing an offence as soon as they knew a tenant was illegal, even if they were in the process of evicting them. No one can assure them that they will not be prosecuted; in any event, there is no good reason for it. Amendment 87 would provide protection during the process of serving an eviction notice. Amendment 71 would give the landlord slightly more leeway by giving them two months to act before they serve the eviction notice. I can think of no sensible reason why the amendments cannot be accepted.

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[Paul Blomfield]

I want to take the opportunity to look at the wider concerns behind the group of amendments and the clause itself. I want to return to the Prime Minister, who always seems a useful reference point. I thought his speech at the Conservative party conference was moving and significant. He said:

“Picture this. You’ve graduated with a good degree. You send out your CV far and wide. But you get rejection after rejection. What’s wrong? It’s not the qualifications or the previous experience. It’s just two words at the top: first name, surname. Do you know that in our country today: even if they have exactly the same qualifications, people with white-sounding names are nearly twice as likely to get call backs for jobs than people with ethnic-sounding names? This is a true story.”

He went on to elaborate one example. I thought that was a telling description of how discrimination operates in the workplace, and a passionate appeal for us to take care not to create those conditions. We should be seeking to mitigate and prevent the occurrences he highlighted.

As in the workplace, so in the relationship between landlords and tenants.

[James Brokenshire]

The hon. Gentleman is making an important point about discrimination more generally. That concern would be shared across the Committee, in seeking to confront and combat discrimination in all its forms. He and I share the same stance on that. To follow the logic of what he and his hon. and learned Friend have said, does he think that the right to work checks were a mistake by the previous Labour Government? Because that appears to be where his logic is taking him.

[Paul Blomfield]

That is an interesting intervention from the Minister. He, I and everybody on the Committee surely share the objectives of ensuring discrimination does not take place. We could have a useful and reflective discussion on the lessons we could learn from the previous Labour Government, but I guess the Chair might rule that a diversion. It is more important that we focus on the issue before us today.

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[Keir Starmer]

Thank you, Mr Owen. By the end of this process, I hope to have mastered all the rules as to what happens and when. I am grateful for the advice.

Amendment 89 is intended to provide a court with the discretion as to whether it orders possession of a dwelling house on the grounds that the Secretary of State has issued a notice confirming that a person does not have a right to rent. The amendment would change “must” to “may”, therefore giving the court discretion based on the facts of the particular case before it. At the moment the court does not have discretion, so in a case with children involved, for example, who will lose their home as a result of the order that the court is about to make, the court does not have discretion not to evict the family. As drafted, that will operate as an obvious injustice.

Nearly always in eviction cases, it is sensible to give the court discretion to act in the right way on the facts before it. I can foresee a situation in which a family with children who might then fall to be assessed under the Children Act 1989—the children might even be taken into care—would be of deep concern to a court considering eviction proceedings. If a court knew that an order that it was about to make would lead to a family being split up and the children taken into care, it might well want to exercise discretion not to evict there and then. Amendment 89 would give the courts that discretion.

As drafted, eviction is mandatory—the court must evict, even families with children, whatever the impact on them or, frankly, on the local authority that might well have to pick up the duty and the tab. That is why amendment 89 is fundamentally important in the interests of justice.

[James Brokenshire]

I will respond to the specifics of the amendments in the group. The hon. and learned Gentleman and others have strayed more widely and I will comment later on some of their more general points, but first the specifics.

--- Later in debate ---

[Keir Starmer]

The Minister says the measures are for repeat rogue landlords, but there is nothing in the Bill that necessarily means that someone commits an offence only if they are a repeat offender; the measures apply equally to a first-time offender. Someone becomes an offender as soon as it is brought to their attention that the right to rent has ceased. That is the trigger. It may be that the enforcement agencies and prosecuting authorities take a particular view, but as I understand them, the measures in the Bill as drafted apply to any landlord who receives notification at any time that someone they are renting to does not have the right to remain.

[James Brokenshire]

The hon. and learned Gentleman is pointing to the provisions in clause 12, and in particular the two conditions that need to be satisfied as expressed in proposed new section 33A(2) and (3) to the 2014 Act. He is right. That is why I prefaced my comments with remarks about the intent that the offence be for serial offenders and the most egregious rogue landlords. The point of the offence is that there may be very serious situations in which conditions so appalling are discovered that it is judged that an action should be brought, and it is then also discovered that the people in the property do not have the right to be in this country.

It is important to understand, in relation both to the right to rent checks and to the offence, that we seek a firmness of approach and the opportunity for joint working between immigration enforcement and local authorities to tackle the rogue and hardened sector. We judge that that will raise standards within the sector as a whole. It will ensure that property on the rental market is available to British citizens and those with the right to be in this country. Looking at the housing market, the Bill is intended to aid the situation so that British citizens are able to rent available property. The tools and mechanisms under the right to rent and the offence in clause 12 sit alongside joint working by local authorities on inspection, on confronting rogue landlords and on tackling the appalling conditions and standards that some rogue landlords operate under.

The provisions need to be seen in that context. Some of the local authorities in the initial pilot area would point to how the mechanism has aided and assisted their work, through sharing intelligence, for example, so that they are able to confront the rogue sector. One issue is how we raise standards more generally, and we can use this mechanism to do so.

[Keir Starmer]

The civil regime was put in place a year or so ago. It was then evaluated. Which part of the evaluation does the Minister rely on to make the case that, in addition to a civil approach, criminal sanctions are needed? Where in the evaluation is there anything that says, “This is all very well, but it will not work and we need to go further and have a criminal offence”?

[James Brokenshire]

It is our judgment on the tools that are necessary for immigrant enforcement. The hon. and learned Gentleman will recall the debate that we had on illegal working and sanctions, and how the escalation of a civil penalty regime for dealing with negligence was appropriate, but how, when someone has knowledge or reasonable cause to believe, a criminal sanction was appropriate to deal with those ingrained circumstances for those who deliberately turn a blind eye. If he looks at the language in new section 33A(3), it states:

“knows or has reasonable cause to believe”,

so this provision reflects the approach that we have previously taken in the Bill, which has been approved as we have gone through the Bill, on the different escalations. That is the basis upon which we judge that a separate criminal sanction alongside the negligence approaches in the civil scheme would operate. Again, this measure is not an attempt to catch out the unwary, but the element needs to be satisfied in the second condition attached to the offence. That is why I framed my response in the way that I did.

I want to come back to what the hon. and learned Gentleman and the hon. Member for Glasgow North East said. I want to emphasise the intent behind the measure. I will reflect carefully on the contributions that they have made, because the intent is not to try to catch out and to act in a deliberate way to seek effectively to say, as a consequence of the issuance of the notice, that someone is committing a criminal offence. In fairness to the hon. and learned Gentleman and the hon. Lady, and to the Committee, I will reflect on what they have said because of the intent that we have in respect of the measure, on which I have just responded. I could say that, as he knows, it is for the CPS to make those sorts of decision, but, in fairness to both Members, I will reflect further on what they have said and my intention and that of the Government as regards whom the measure is aimed at and the manner in which we seek the offence to be advanced. I hope that that is helpful to the Committee.

We judge that amendment 72 is unnecessary. An agent who is a co-tenant would fall liable for prosecution only where they are the party that is responsible for any right to rent checks. This is the approach taken in the right to rent scheme and reflects the incidence of sub-letting found in the private rented sector. In such instances, a landlord may not be aware that another occupant has moved into the rented property and it is inappropriate that they should then fall liable for the offence.

The Immigration Act 2014 does provide for instances where an agent is involved: an agent acting on behalf of a landlord as a normal part of their business. In essence, that is where the responsibility has been transferred. In such instances, the landlord and agent should agree in writing where the responsibility for the right to rent checks should lie. There may be instances where a landlord is happy that a tenant may take in another occupant in a sub-letting arrangement. In such circumstances, the landlord and existing tenant should agree where the responsibility for right to rent checks should lie. So we are looking back to the operation of the original Immigration Act 2014 on where responsibility lies and that transfer of responsibility to the agent, as provided in the Act. I think hon. Members can understand the circumstances in which professional agents act on behalf of landlords, and it is understood, as part of the other checks and validation, that the agent should bear such responsibility.

[Paul Blomfield]

I want to be absolutely clear, because, as the Minister knows, I represent a constituency with a considerable number of students: more than any other Member in the country. I want to be clear on the position that co-tenants might be in, for example. In the ordinary run of things, if someone drops out of a house, the onus is on the co-tenants to find somebody to fill the vacancy. Does the Bill place any liability on co-tenants that might end up with them facing prosecution?

[James Brokenshire]

If I understand the hon. Gentleman correctly and if he is referring to what might be regarded as an agency, we are looking more at the formal agency structure under the Immigration Act 2014 that I have referenced. He will know about the exceptions and provisions regarding halls of residence and the formalised arrangements involving universities and other academic institutions regarding property used for student accommodation. I will take his specific point about students, because my understanding is that that should not be the case. Given that the point about co-tenancy is quite technical and narrow, if I am unable to come back to him—we are running over into the luncheon period—during my response to the debate, I will certainly seek to do so separately.

On amendment 85, the offences do not apply retrospectively. The criminal behaviour for which a landlord may be liable to prosecution would be their behaviour in renting to someone disqualified from renting or their failure to notify the Home Office that someone is disqualified from renting after the point when the offence came into force. A landlord can be prosecuted, however, for renting to someone disqualified from renting when the tenancy agreement was entered into before the offence came into force. The burden would be on the prosecution to prove that a landlord knew or had reasonable cause to believe that they were renting to a disqualified person. The amendment would serve to put any rogue landlord who could establish that a tenancy started before the offence came into force beyond the reach of prosecution.

I return to my general point about the intent behind the provisions. It is about that element of knowledge involved here, hence the escalated emphasis behind this and what the prosecution would need to prove. Therefore, if an appalling landlord whose properties were in dreadful condition was renting to someone illegally, it would not necessarily be right to say, “Action should not be taken, because that tenancy did not arise in respect of the original right to rent scheme.” I appreciate that there may be differences of opinion on that, but in such an egregious situation where we might say that the tenancy did not arise until after the scheme was rolled out, I am not sure that hon. Members would feel that we were doing the right thing. Indeed, I do not think that we would necessarily be doing the right thing in such circumstances, which is why the offence is framed in the manner that it is. I understand why the hon. and learned Gentleman tabled the amendment and sought to ally it firmly to the right to rent scheme, but considering such egregious cases is an important part of the approach and is why we have framed our statements about why this is necessary around repeat offenders and rogue landlords.

We have one minute left before we break for lunch, but I will give way to the hon. and learned Gentleman.

[Keir Starmer]

I was not intending to intervene. I was just manoeuvring in an unusual way.

[James Brokenshire]

I am glad that the hon. and learned Gentleman made that comment. I would never have claimed that he was manoeuvring in any particular way but I am grateful for that clarification.

Turning to amendment 87, providing protection from prosecution on the face of the Bill in the circumstances set out by the hon. and learned Gentleman is not needed. Any decision to prosecute will involve careful consideration of all the circumstances, including what action, if any, a landlord has taken following receipt of a notice from the Home Office.

Ordered, That the debate be now adjourned.—(Charlie Elphicke.)