Oral Answers to Questions

Debate between James Brokenshire and Keir Starmer

Monday 13th June 2016 Commons Chamber

[James Brokenshire]

As I have said, France terre d’asile, to which the United Kingdom Government is giving financial support, is doing precisely that. It is going into the camps to identify young people and to ensure that we have a good understanding of the work that is being done there. Separately, our own advisers are going into the camps to provide appropriate advice. What is of key importance, however, is getting those young people into the French asylum system.

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

On behalf of Labour Members, may I echo the Home Secretary’s comments about Orlando?

Research published this week by UNICEF shows that children in refugee camps in Calais and Dunkirk are experiencing violence, sexual exploitation and abuse on a daily basis. Clearly, for those who are entitled to be reunified with their families, speed is of the essence, but UNICEF estimates that, at the current rate, it could take up to a year to process the children who are already in Calais and Dunkirk and who have a legal right to be reunited with their relations in the United Kingdom. What steps are the Government taking to address that, and can the Minister tell me how many Home Office staff are currently based in France and working to speed up the process?

[James Brokenshire]

I entirely agree with the hon. and learned Gentleman about the need to ensure that those cases are processed as quickly as possible. The most effective way to do that is to provide teams that link up with the best expertise on both sides of the channel, and that is exactly what we have done with the French authorities. The process will not take as long as he suggested. We are seeing cases being processed in a matter of weeks, which is precisely what we want.

Child Refugee Resettlement

Debate between James Brokenshire and Keir Starmer

Tuesday 10th May 2016 Commons Chamber

[James Brokenshire]

In implementing this policy, we are very conscious of the way in which people traffickers and smugglers can twist and interpret the statements that we make. I know that no one in this House would want to see more children lose their lives in the Mediterranean sea or in the Aegean, which has, sadly, been a consequence of these people trading in human misery. I assure my hon. Friend that we take this issue seriously. The best interests of the child are at the forefront of our activity. We will continue to underline the message that this scheme is for children who were in Europe prior to 20 March, so that it cannot be open to that misinterpretation.

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

Yesterday’s debate was very much about how the Government came to accept the final Dubs amendment. Today is clearly about the what and where we go from here. I am glad that this urgent question was granted, because there was an apparent discrepancy between the approach the Minister outlined yesterday and what The Daily Telegraph reported this morning had been briefed from No. 10. The Minister has dealt with that.

The resettlement scheme has expanded over time. It started as a scheme to support, rather than take, refugees. It was expanded to include victims of sexual violence, then 20,000 people over five years, and then 3,000 children and families from the region. It has now been expanded by the final Dubs amendment. In fairness, where the Government have accepted the spirit of the expansion, the scheme works well. I have seen the resettlement of families in Glasgow and Colchester, where the scheme works very well. This next iteration is a challenge, but there is a huge prize if we get it right, particularly as it involves very vulnerable children who are here in Europe right here, right now.

I have some questions for the Minister. If the discussions have started, as he suggests, there must be an idea of the numbers, because there cannot be meaningful discussions unless there is some idea of how many children are involved. What is the broad number that the Government are looking at? The original Dubs amendment included a figure of 3,000. What figure are the Government at least discussing at the moment?

The second question is when. I absolutely agree that seven months is too long for children. There is an urgency here. We are all focused on the 10,000 children who according to Europol have gone missing. Those children are very vulnerable and in great danger. Seven months is a very long time in the life of a child, especially one who has gone through such circumstances.

Finally, what are the funding arrangements? It strikes me that the current scheme is working well because resources are being provided to local authorities and others to make sure that it beds in and that families are supported and welcomed and have the resources and facilities that they need.

What are the numbers, when will the children arrive and what are the funding arrangements?

[James Brokenshire]

I thank the hon. and learned Gentleman for his comments on how we have sought to implement the scheme. As I have already indicated, we intend to follow the same approach in taking these measures forward and effecting them appropriately, with the best interests of the child in place. We are not looking to delay, and I hope we will make positive progress in the months ahead.

On numbers, the hon. and learned Gentleman will be aware that the amendment, which is now part of the Immigration Bill, says that we need to consult local authorities to establish what is termed the “specified number”. Although I recognise the desire for clarity, it is important to have that consultation first, to meet the requirements of the legislation. I do not want to prejudge the consultation but to get the numbers from it.

As for when, that will clearly be informed by the consultation, but, as I have indicated, we are not looking to delay. We want to make progress quickly in the weeks and months ahead. We are discussing funding across Government. The hon. and learned Gentleman will be aware that unaccompanied asylum-seeking children are already funded when they arrive in the UK, and there are clear funding arrangements for local authorities. We need to be cognisant of that. We will look closely at implementing the scheme in a manner consistent with a number of existing arrangements.

Immigration Bill

Debate between James Brokenshire and Keir Starmer

Ping Pong: House of Commons
Monday 9th May 2016 Commons Chamber

[James Brokenshire]

I do not want to conflate, as the right hon. Gentleman seems to be doing, those who claim asylum in this country and are then determined not to have a valid asylum claim—we would therefore seek to remove them on their 18th birthday—with the arrangements we are contemplating and which I am setting out to the House this evening. Obviously, we are looking carefully at the nature of the leave that will be granted. It is important to understand and recognise that where we are seeking to reunite children with parents here, the Dublin arrangements would normally mean that they would have the same leave as the person who was here. Equally, if we are looking at resettlement, different leaves may be involved. We are looking at this carefully with UNHCR and others.

I hope that colleagues will agree that accepting the amendment is the right thing to do. No country has done more than Britain when it comes to help for Syrian refugees. Accepting this amendment demonstrates the Government’s approach of doing more for refugee children across the globe while upholding the principle that we should not be encouraging vulnerable people to make that perilous journey. We remain of the view that we can have the biggest impact by supporting refugees in affected regions and the countries hosting them. Those we resettle here are the exceptions and the vulnerable whom the UNHCR advise need to be resettled in a country such as the UK. That has always been the cornerstone of our policy and that should remain the case, but we recognise our duties, both in the EU and beyond.

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

Let me start by discussing unaccompanied refugee children in Europe and reminding the House that two weeks ago the Government voted against Lord Alf Dubs original amendment here in this House. Last week, they voted against this amendment in the other place. Obviously, I welcome the change of position, but it is just that. Whether voting against an amendment last week and accepting it this week is listening, as the Government would have it, or U-turning, as I would have it, is a matter for debate, but clearly there is a changed position.

Dublin System: Asylum

Debate between James Brokenshire and Keir Starmer

Wednesday 4th May 2016 Commons Chamber

[James Brokenshire]

Thank you, Mr Speaker. I am always the servant of the House in this regard.

My hon. Friend the Member for St Albans (Mrs Main) has raised various points. The UK has a very clear opt-in arrangement in relation to justice and home affairs matters and we retain firm control over the ability to decide which matters to opt into, as I explained clearly in my opening comments.

The existing Dublin regulations provide a significant benefit. As I have said, we have used the process to remove nearly 12,000 people from the UK to other EU member states over the past 10 years.

My hon. Friend asked whether we may subsequently be bound by, or be required to be participants in, the new arrangements. I point her to a specific statement in the European Commission’s press release:

“The UK and Ireland are not required but instead determine themselves the extent to which they want to participate in these measures, in accordance with the relevant Protocols attached to the Treaties. If they do not opt in, the current rules as they operate today will continue to apply to them, in line with the Treaties.”

That provides the important clarification and certainty sought by my hon. Friend. Clearly, that provides protection in relation to whether or not we decide to opt into certain matters, including the quota penalty, to which she referred.

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

Let us be clear from the start: through our opt-out on home affairs and justice, Britain would not be required to take part in any asylum relocation system, nor would we be required to pay any financial levy to avoid it. Let us also be clear, however, that we have a keen national interest and a moral responsibility to ensure that effective systems are in place to tackle the worst humanitarian crisis in Europe in a decade. A humanitarian crisis on this scale clearly needs a concerted EU-wide response.

It is clear that the Dublin arrangements are not working on the ground. They are not able to cope with the numbers or process the claims. For those precise reasons, Labour has been calling for many months for a reconsideration of how the Dublin arrangements work in practice. The Government, as ever, have been slow and reluctant to act, as characterised by the Minister’s involuntary appearance here today.

Labour is also clear that the key Dublin principles preventing first country states from refusing to process asylum seekers and allowing return to first country are important. We welcome the Government’s update on that, but what reform proposals have they made to the Commission?

There is also the wider and key question of unaccompanied children in Europe. Today the chair of the Association of Jewish Refugees called on the Prime Minister to do more to help what he called “the most vulnerable victims” of the Syrian conflict. We cannot continue to sit on our hands or to be subject to the repugnant rhetoric that these children in Europe are safe—they are not. There is a groundswell of support. When will the Government finally listen? If there is to be a U-turn, the sooner it happens, the better.

[James Brokenshire]

The hon. and learned Gentleman clearly did not hear what the Prime Minister said at Prime Minister’s Question Time just a few moments ago. He said that we are in discussions with Save the Children and the United Nations High Commissioner for Refugees about what further assistance can be provided to those who had already registered in Europe before the EU-Turkey deal came into force. He also mentioned the discussions that we will have with local authorities.

I reject entirely the hon. and learned Gentleman’s claim that the Government have been slow to act on the Dublin regulations. We have sent experts to France and other European countries to support that process, to enable its practical implementation on the ground, and to ensure that it bears fruit and speeds up.

The hon. and learned Gentleman highlighted issues relating to the Dublin regulations. The Government believe that the long-standing principles at the heart of the Dublin system are the right ones, and it would be a major error to tear them up and replace them with something completely different. Dublin may not be operating as it should be, but that does not meant that its principles are fundamentally flawed. That is the approach that this Government will take to further negotiation.

Right hon. and hon. Members will not have seen the proposals in detail, because they have only just been published. It is right, therefore, that we reflect on them in detail and continue our discussions in order to ensure a reformed Dublin system that benefits the UK, while acknowledging the protections we have to maintain the existing Dublin arrangements.

Asylum Seeker Dispersal Policy

Debate between James Brokenshire and Keir Starmer

Tuesday 3rd May 2016 Westminster Hall

[James Brokenshire]

I can say to the hon. Gentleman that my local authority is a dispersal area; equally, other Conservative authorities do take asylum seekers in dispersal. As I indicated, we seek to expand those numbers further and I will continue on that in the months ahead.

I want to respond to this point specifically: despite the increasing numbers, we continue to process claims promptly. Indeed, the inspection by the independent chief inspector of borders and immigration found that the Home Office had made significant improvements in the efficiency and effectiveness of its management of asylum casework during 2014-15. It had met its aim of deciding all straightforward claims made on or after April 2014 within six months, while successfully clearing all straightforward claims lodged before 1 April 2014 by 31 March 2015. The inspection also found that non-straightforward cases were being monitored effectively and decided quickly once barriers were removed.

We continue to focus on driving further improvement and ensuring that cases are determined promptly. Of course there are some more complex cases, where we may have concerns over issues of previous criminality or perhaps even war crimes that individuals may be linked to in some way. It is therefore appropriate that we consider matters carefully and cautiously in those circumstances. However, I am clear about the need for an efficient and effective service. We have been driving that through change over recent years and we intend to retain a focus on that.

On the COMPASS contracts, the suppliers are contractually required to provide safe, habitable, fit-for-purpose accommodation to comply with the Housing Act 2004 and the decent homes standards. All Home Office contracts include performance standards that are defined in the contract and managed using key performance indicators. Any failure in delivering the critical service levels may result in deductions against submitted invoices in the form of service credits. The Home Office and the providers regularly inspect asylum seeker accommodation. All three contractors are currently meeting the key performance indicators for property standards. When any defects are found through the inspection regime, such defects are being rectified promptly and within contractual time limits.

I stress the change we have made in the inspection regime. We are listening more closely to service users—I think we had not previously listened and had that rightful feedback from them to a sufficient degree—and working with non-governmental organisations to pick up on issues where they arise, so that we are better able to target the inspection regime and address any concerns about the quality of accommodation that asylum seekers use. The Home Office regularly inspects properties in Rochdale and did so only last week. The inspections found that the accommodation was of a good standard and that the asylum seekers living there felt adequately supported.

To take the point raised by the hon. and learned Member for Holborn and St Pancras (Keir Starmer), the COMPASS contracts, as well as improving accommodation standards, remain on target to deliver £136.4 million of financial benefits during their lifetime compared with the cost of the previous arrangements. As I made clear at the recent, passionate Westminster Hall debate on 19 April on unaccompanied children, the Home Office takes its

“responsibility for the welfare of children seriously.”—[Official Report, 19 April 2016; Vol. 608, c. 286WH.]

We have stringent and statutory policy safeguards in place regarding child welfare. Ensuring that we treat children with care and compassion is a priority.

Last year saw a 56% increase in the number of unaccompanied asylum-seeking children arriving in the UK, particularly in Kent. The Government are grateful to all those in Kent and to other local authorities meeting that challenge for the excellent way in which they have responded to those pressures and we are keen that there should be no repetition of the situation that occurred in Kent last summer. That is why I have announced that we will put in place a national transfer scheme this summer to ensure a fairer distribution of unaccompanied asylum-seeking children across the UK. I am extremely grateful for the collaborative way in which the Local Government Association and the Association of Directors of Children’s Services have engaged with that work. I will be writing to all local authorities again after the local elections to provide further information about the scheme and the support mechanisms.

I am sure hon. Members will agree that the outpouring of support we have seen in response to the Syrian crisis has been incredible, from local authorities that have volunteered to take refugees as part of the Syrian resettlement programme, to offers of help from the general public, businesses and voluntary organisations. Less visible is the ongoing support in communities such as Rochdale and what they have been doing to provide for asylum seekers over a number of years. I pay tribute to those communities.

[Keir Starmer]

I have said before that I think the scheme to resettle Syrian families is very good, but I have a growing concern about a two-tier system. I know that there is much greater financial support for local authorities that house Syrian families than for those that house other asylum-seeking individuals. Does the Minister share my concern that there is a growing perception of a two-tier asylum-seeking system evolving?

Immigration Bill

Debate between James Brokenshire and Keir Starmer

Monday 25th April 2016 Commons Chamber

[James Brokenshire]

The contribution we are making stands in very positive terms compared with what other European partners are doing. This is about identifying the right people to deploy so that we have the best effect, and that is precisely what we are doing.

I am conscious that I have spoken for an extended period, and I want other right hon. and hon. Members to get into the debate. For the reasons I have given, the approach proposed in amendment 87 is not the right one. As the selection of amendments notes, the amendment engages financial privilege, and the Speaker identified some of the issues that that raises in terms of the reasons we give the House of Lords.

Under amendment 87, we could end up relieving pressure on developed countries in Europe that have the means to support children, instead of helping developing countries that are under real pressure and that do not have the capacity to support them. The best answer is upstream intervention before children at risk try to come to Europe.

The Government are committed to making a full contribution to the global refugee crisis, particularly by helping children at risk. We strongly believe that our approach of resettling children at risk and their families directly from the region will have most impact on safeguarding vulnerable children. The significant aid package in Europe, and our practical and logistical assistance to front-line member states to ensure vulnerable children are properly protected wherever they are in Europe, is the correct way to approach this issue.

The UK can be proud of the contribution we are making, which stands comparison with any. We are doing everything we said we would to provide aid and to resettle vulnerable refugees. We are already making a real difference to hundreds of thousands of lives.

I recognise the sincere feelings of those who support amendment 87. We share the objective of identifying and protecting children at risk, but I firmly believe that the approach I have set out provides the best way to support our European partners, help vulnerable refugee children and provide the biggest impact for the contribution this country can make.

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

I thank the Labour Peers and the many Cross Benchers who brought these amendments before the House today. The amendments raise important issues, and none more so than amendment 87.

Amendment 87—the so-called Alf Dubs amendment—was tabled by Lord Dubs. As many people know, Lord Dubs arrived in this country in 1939 as an unaccompanied child under the Kindertransport system, so he speaks with particular authority. The vote in the House of Lords was won by 100 votes, reflecting the long campaign to change the position on unaccompanied children in Europe. That campaign has been supported by Members of this House, along with non-governmental organisations and charities. The matter was first raised by my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman), who put it to the Prime Minister in September 2015. My right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) has continually raised it, and I pay tribute to her work. I also pay tribute to Save the Children for raising this issue so much over the last year.

The issue is comparatively simple to state: hundreds of thousands of families across the world—millions of people in total—are fleeing their homes. The refugee crisis we are witnessing is on a scale we have not seen since the second world war. The Minister spoke of the devastating effect of war on so many people. We have become familiar with the images of families making treacherous journeys—often across the Mediterranean—but I am sure I speak for the whole House when I say we are all still shocked every time we see footage and images of desperate families making those desperate, treacherous journeys.

Child Refugees: Calais

Debate between James Brokenshire and Keir Starmer

Monday 29th February 2016 Commons Chamber

[James Brokenshire]

I agree with my right hon. Friend. We have established a very close working relationship between the UK and French Governments, and between the Home Secretary and Bernard Cazeneuve. There are regular meetings at that level and at operational level, highlighting the exchange of expertise to which I have already referred. My right hon. Friend is right; we will need to maintain that sort of support in the months and years ahead.

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

I thank my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) for raising this issue. The Opposition have repeatedly raised the plight of the 26,000 or so unaccompanied children in Europe, who are in desperate need of protection. I listened to what the Minister said this afternoon, and I have listened to what he has said before, but there is, as my right hon. Friend has said, a reality gap here.

I have been to see the camps in Calais and Dunkirk for myself. The squalor is hard to describe, and it is worse in Dunkirk than it is in Calais. There are 300 or so unaccompanied children in Calais, and they are not there by choice. In Dunkirk the conditions are such that the volunteers—there are only eight of them—are so busy trying to keep people safe and provide them with somewhere to sleep that they cannot even count the number of unaccompanied children. There is no process on the ground for these children, there is no meaningful advice for them and the reunification rules are not working. That is the reality on the ground. We have to start from that position. That was all borne out by the judgment of the upper tribunal in January.

The situation is now urgent because of the action that has been taken today. I urge the Minister to look at the issue again and consider what practical support can be given in the next 24 hours to these desperate children, who until now have not had the support they need.

[James Brokenshire]

The joint declaration signed between the UK and French Governments last August actually provides for the direct financial support that we are giving to the French Government to provide the centres outside the immediate area of Calais. Indeed, as I have already highlighted, there is the Jules Ferry centre, and there is the work we are doing on a regular basis to identify and highlight the appropriate support that is there. I stress again: there is no need for people to be in those conditions. There are services—[Interruption.] There are facilities and services away from the camps that are available to support people. We take our responsibilities seriously, which is why—[Interruption.] The hon. Member for Hackney North and Stoke Newington (Ms Abbott) keeps interjecting from the Opposition Front Bench. We are working closely with the French Government to see that there are experts in place, and I have already indicted that an additional person is going out next week to see that there are procedures in place so that there will be efficient and effective reunification for what I judge to be a small number of cases. However, support and alternative accommodation are available in France, and I would urge people to take up those choices.

Immigration and Nationality (Fees) Order 2016

Debate between James Brokenshire and Keir Starmer

Tuesday 2nd February 2016 General Committees

[Keir Starmer]

I am grateful for that intervention. It touches on an issue that we discussed in the Bill Committee, which is that for landlords and employers there is a risk, if checking immigration status is difficult and there is a penalty for getting it wrong—which, of course, there is—that they will default to a position where unless someone has a British passport and is white, they will not let them premises or employ them. That was not the first time that the concern was raised; it was brought up when the 2014 Immigration Bill was going through Parliament. All parties were concerned that there was a risk of indirect discrimination.

It is accepted that there is a risk. The Minister and the Home Office say that it is a manageable one, but one of the tools for managing the risk is the ability of landlords and employers quickly to get the advice they need. They say, unsurprisingly: “We are not experts in checking immigration status. There are many nationalities that will apply to rent a premises, or for a job, and we need to be able very swiftly to get an answer to any queries”.

[James Brokenshire]

Will the hon. and learned Gentleman give way?

[Keir Starmer]

I think that that was almost an instruction to give way, but I will in any event.

[James Brokenshire]

I would never dare to instruct the hon. and learned Gentleman in that manner. I can perhaps assist the Committee by explaining that the fees set out in the order relate to the overseas line. The landlords checking service is a different product, for which we have no intention of charging, and that applies also to the employers checking service.

[Keir Starmer]

I am glad to have that reassurance, which is in keeping with our debate in the Bill Committee, and I am sure that now it is on the record it will be clear for all to see. I am grateful for the Minister’s intervention.

I welcome the reduction in fees for dependent relatives of refugees. However, it is clear, going through the order, that the largest increases in 2016-17 are being imposed on those seeking British nationality or long-term residence, with many of those costs increasing by up to 25%. In contrast, the fees for those coming here on tier 2 skilled worker visas are being frozen or increased by 2%. It is right that we do not impose excessive costs on those coming here to do skilled work, but we must be careful to strike the right balance. The proposed fees under the order are higher than the 2015 maximums in more than a quarter of categories. Did something go wrong with the previous regime that required those changes under the order?

Secondly, when is the border, immigration and citizenship system expected to be self-financing, which is the aim? When do the Government plan to raise fees to achieve that? Thirdly, the order states that it will allow for increases over the next four years. Is the intention that, by the end of the four years, the likelihood is that the maximum fees will be charged? Fourthly, the impact assessment indicates that the planned increase in fees will cause application volumes to fall. Will the Minister provide more detail on the anticipated fall over the four years?

--- Later in debate ---

[James Brokenshire]

If the hon. Lady looks at the things I have said and the approach we have taken, for example on the growth routes—she highlighted the 2% increase in tier 2 and tier 4—she will see that it recognises the contribution made in those circumstances. Therefore, that is the approach we have taken to the fees that we would propose for 2016-17. It is important that we strike a good balance between the economic interests of the UK and the need to maintain a sound immigration system. We will seek to ensure that fees for immigration and nationality services enable the UK to retain its position as an attractive destination to work in, study in and visit.

[Keir Starmer]

The briefing from the Immigration Law Practitioners Association raised the point about ability to pay and gave an example that I have to say concerned me. The Minister may be able to give an answer now or in detail later, but the briefing quotes a figure of £936 to register a child as a British citizen where there is an entitlement to do so. I appreciate that the Minister may not have the detail on this, but I was struck by the fact that there is no provision for those who do not have the means to pay, yet if that relates, as in that example, to registering a child where there is an entitlement to do so, that would concern me. It may be that the Minister can reassure me on that point now or, if the answer is too detailed, perhaps in writing.

[The Chair]

Order. May I point out that interventions are drifting in the wrong direction?

[James Brokenshire]

We have considered the increases carefully in respect of what I have outlined when it comes to the growth routes—those we judge to be focused on contributing to our economic growth—and therefore the distinction that has been drawn is between those and certain other categories, where we judge there to be significant benefits that attach to the rights that are applied.

For example, we are looking to larger fee increases for what we consider to be the non-growth routes by up to 25%, which includes nationality and settlement fees. We believe these fees reflect the considerable benefits and entitlements available to successful applicants. That is the approach we have taken, certainly over the last couple of years, to relative fee increases. We judge that to be the appropriate stance to take, certainly in respect of the manner in which we are moving to self-funding for the border and immigration system, as I have outlined. Moving to 2019-20, we anticipate that the increases we intend to set out in the 2016-17 regulations will take us to around three-quarters self-funding for the costs of the borders, immigration and citizenship system, around £600 million of which is currently funded by the Exchequer. It is also important to underline that it is not simply about that side of the equation. There are rightly efficiencies that we need to continue to make to drive down costs and ensure that we have an efficient and effective service. Our expenditure is expected to reduce over the period before 2019-20 to get us to that self-funded position. We judge that that is the right thing to do, building on the important steps that that the Home Office has taken since 2010, when the coalition Government came into office.

About £3 billion of savings will have been delivered in 2015-16 as a consequence of this Government’s reforms, which were required to deal with the economic issues we had to face up to and to ensure that our public finances are on a much stronger footing. That has been the driver behind our work and it has delivered a much more efficient, effective, reliable service. That service has dealt with the issues, some of which have been described today, and decisions have been reached correctly and therefore have not been susceptible to appeal.

[Keir Starmer]

rose—

[Keir Starmer]

I will be short, Ms Buck. The question is about the registration of a child where there is an entitlement to do that but it costs £936, and the individuals cannot afford it. Is the answer that is tough?

[James Brokenshire]

As I have already said, fees will be set out in the negative regulations. There are already operable fees for citizenship and the other elements I have outlined. It is certainly not intended that there will be a specific nationality waiver and we will never require a fee when that would be incompatible with rights under the European convention on human rights. Clearly, there are costs to the immigration system in processing and assessing such claims and in the ability to assert rights, so it is right that we have a system that can recover those costs. I will certainly reflect on what the hon. and learned Gentleman has said and see whether there is anything further I wish to add once I have reread his comments. It is all about that relative balance.

On the question of a reduction in the number of applications, I would direct hon. Members to the regulatory impact assessment, which shows that there is no clear evidence that an increase in the fees would lead to such a reduction. Although certain assumptions are made in the impact assessment to underpin that, it makes it very clear that in practice such a reduction may not be seen and how, should there be a reduction, the amount of fees charged would cover the financial implication of that. We have increased charges for a number of routes over the past few years and yet, in many cases, the number of applications has gone up, notwithstanding those fee increases. There is no clear read-across in terms of what the economists would argue about price elasticity of demand being linked to the overall price of a visa.

I hope that the Committee will be minded to support the order.

Question put.

Asylum Seekers: Middlesbrough

Debate between James Brokenshire and Keir Starmer

Wednesday 20th January 2016 Commons Chamber

[James Brokenshire]

I am grateful to my right hon. Friend for his comments. He has understanding and experience as a previous holder of the office I now hold as Immigration Minister. I can assure him of the urgency I have impressed on G4S in respect of resolving the issue quickly. The chief executive officer underlined that he recognised and understood that clearly. We will be monitoring the situation closely. I have asked officials to go to Middlesbrough tomorrow to assess the situation on the ground and to start work on the audit. I hope that that reassures my right hon. Friend of the urgency that I, my officials, and, from what we are hearing, G4S attach to this matter.

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

Today’s report in The Times is obviously deeply concerning, and I recognise the Minister’s concern and the steps he has taken to get to the bottom of it. It is concerning that such a thing has happened. It is early days but it seems right—it does not seem that the facts are disputed—that the doors were painted red. It is also concerning because of the underpinning arrangements. How did this come about, and how did nobody think it inappropriate for the doors to be so painted, particularly given that, as the Minister has outlined, there is a Home Office inspection regime and a local authority assurance scheme? How did nobody, under those arrangements, think there was anything wrong? There is also concern about the consequences. Hate crime is increasing—it increased by 18% last year—and the consequence has been hate crime in Middlesbrough. That is concerning in its own right. I echo the view that the sooner something is done to rectify the situation, the better. There is also concern that this matter is before the House only because of the careful work of Andrew Norfolk at The Times, not because some internal inspection or auditing scheme flagged it up as a matter of concern.

The Minister has told us when he first knew, and I appreciate he has put steps in place to make further welcome inquiries, but how did this escape whatever inspection or assurance regime was in place? Were the properties inspected or assured by the Home Office or anybody else? If not, what can be done to improve the regime? What conversations has the Minister had with the contractors in Middlesbrough? Is this an isolated example? Is it something that has happened just in Middlesbrough, or are there examples in other parts of the country? Have inquiries been made into that? If so, what have they shown so far? If not, can such inquiries be made? What further conversations can be had with all private providers of accommodation to ensure that this does not occur again anywhere and that, if it has occurred anywhere else, it is rectified as soon as possible?

[James Brokenshire]

As I highlighted, I spoke to the chief executive of G4S this morning and asked that work be done to assess whether this is an isolated issue. I have asked how we can talk to all the providers under the COMPASS contract and how inquiries can be made with their subcontractors as well. From initial investigations, it seems that some providers of social housing might, for maintenance purposes, paint in a particular colour. We are investigating that further. Jomast made the point that about 20% of its property portfolio is asylum accommodation. We will focus on this issue as part of the audit work I have commissioned, and we will see whether lessons can be learned about the ongoing maintenance assessment. Inspections are undertaken to identify whether accommodation remains suitable or whether steps need to be taken by our contractors. I have tasked out that work as part of the examination. I underline again that we take hate crime very seriously and will remain focused on it in our forthcoming work.

The hon. and learned Gentleman asked about inspections. We will look at the processes and procedures to establish why the significance of this issue was not identified earlier. I have noted reports in the press and elsewhere of the issue having been highlighted to G4S and potentially to others. We are seeking to get to the bottom of that.

Immigration Bill

Debate between James Brokenshire and Keir Starmer

Tuesday 1st December 2015 Commons Chamber

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

I shall speak to the amendments in my name. I hope it will be helpful to the House if I indicate as I go through them which of those amendments I currently intend to press to a Division, so that the Minister will know.

I start with the labour market provisions and say at the outset that we on the Labour Benches support the establishment of a director of labour market enforcement. This will provide strategic leadership, which is much needed and very welcome. The real issues in relation to the director are resources and focus. In Committee we heard evidence from Professor Metcalf, who is chair of the Migration Advisory Committee. He said that he understood the issues of public finances, but he did not think the enforcement bodies had enough resources. He pointed to the fact that on the evidence in the report on low-skilled work, Her Majesty’s Revenue and Customs could be expected to visit any given premises once every 250 years and that there was the prospect of a prosecution every 1 million years.

I accept that any investigation would be intelligence-led and targeted, but those figures are stark and point to the problem of resourcing. As another example, the Gangmasters Licensing Authority investigations dropped from 134 in 2011 to 68 in 2014. Clearly, we cannot deal with resources here in this debate, but amendment 18 is intended to give a focus to the director, to ensure that the functions of the director are exercised for the purpose of protecting the victims of labour market exploitation and to make this explicit on the face of the Bill. This mirrors the way in which the Modern Slavery Act 2015 dealt with the functions of the Anti-Slavery Commissioner established by that Act.

There is therefore a good precedent for the amendment. It provides clarity and it avoids any misconception or temptation about this role, which is being introduced in an immigration Bill—namely, that it should be about labour market enforcement, not immigration control. The experience of other countries suggests that this is the right focus for this important role.

Amendment 19 would omit the proposed illegal working offence and maintain the status quo. Time and again in the House and elsewhere the point has been made about the exploitation of the vulnerable. The Migration Advisory Committee reported in 2014 that

“the combination of non-compliance and insufficient enforcement can lead to instances of severe exploitation, particularly of vulnerable groups such as migrants.”

The Committee said in the same report:

“We were struck on our visits around the country by the amount of concern that was expressed by virtually everyone we spoke to about the exploitation of migrants in low-skilled jobs.”

There is a great deal of other evidence to the same effect. What is desperately needed is more resources for inspections, a focus on exploitative employers and a mechanism to encourage employees to have the confidence to come forward. The new provision cuts across that.

Clause 8 is likely to ensure that the most exploited and vulnerable will become even more so; in effect, it will simply strengthen the hand of gangmasters over exploited workers. It also fails the test of necessity. There are already criminal provisions relating to those who have breached immigration rules and there is no need to introduce a new criminal offence for employees. We are talking about the most vulnerable and exploited people, who need the confidence to come forward if the director is to achieve the functions set out in the Bill. My current intention is to push amendment 19 to a vote, although obviously I will listen to what the Minister has to say.

I turn to amendment 20, which also relates to the offence of illegal working. It is a strict or stark offence: an employee who simply does not have the right immigration status commits an offence and has no defence at all. I shall give an example of the injustice likely to be caused. If an employee in good faith relies on his or her employer to sponsor him or her, but something wrong in the process means that as a matter of law, and unbeknown to them, they do not have the right immigration status, they automatically commit an offence and have no “reasonable excuse” defence. That cannot be right for a new criminal offence in this field. With all due respect to the Director of Public Prosecutions, it is not good enough to say that the prosecution must weed out those cases. There needs to be a defence in statute to cover cases of mistake and error that are not the employee’s fault.

I turn to the provisions on landlords and the right to rent. The background is important during this Report debate. The Immigration Act 2014 introduced a civil penalty scheme in relation to the right to rent. That was discussed in the House; there were concerns about the impact it would have in practice and in particular about whether there would be any discriminatory effects. Assurances were given about piloting and properly evaluating the civil penalty scheme before it was rolled out. This Bill, in 2015, proposes to extend the civil penalty scheme by introducing a criminal penalty before there has been a full and meaningful evaluation.

As was mentioned on Second Reading, the Joint Council for the Welfare of Immigrants carried out an evaluation showing, alarmingly, that 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. At that stage, we did not have the advantage of the Home Office evaluation, which was made available in Committee, as the Minister said it would be. That evaluation, however, was small and narrow. The Home Office itself said that it was not sure about the statistical significance of part of the evaluation and that the sample sizes were too small to draw any robust conclusions. We say that the assurance in relation to the civil penalty scheme has not been fulfilled and there is no warrant for extending the scheme to include a criminal sanction.

Amendment 22 deals with the position of landlords who, under the current provisions, would automatically commit a criminal offence the moment they were served notice that they had a tenant without the right to rent. They would be criminalised notwithstanding the period between receipt of that knowledge, normally by a notice, and their best prospect of getting anybody evicted. A reasonable, objective landlord who received a notice and acted on it immediately would still be criminalised during the process. There cannot be any sensible or compelling case for that state of affairs, which causes great concern to landlords and puts them in an impossible position. I understand that the Government may be considering the issue and obviously I shall listen carefully to what the Minister says. On the face of it, however, it is difficult to see that there could ever be a case for such a measure.

Amendments 23 to 26 all relate to the important issue of summary eviction. The Bill introduces a fast-track process—innovative in this field—in which a notice from a landlord stands as a court order, leading to provision for summary eviction. Some 30 or 40 years ago, the House set its face against summary evictions for a very good reason: there were too many examples of locks being changed and families literally being put out on to the street to sleep on the pavements. Everybody agreed that there should be due process before individuals and families, particularly families with children, were evicted. The Bill cuts through that protection for no good reason. In this country in the 21st century no group of individuals should—for whatever reason, and whether renting lawfully or not—be subject to summary eviction proceedings that, as I said, we turned our back on a long time ago.

I move on to immigration detention, which has already been touched on and is a matter of increasing concern to many in this House and beyond. The fact of immigration detention causes real distress and anxiety, particularly among vulnerable groups, and its indefinite nature adds to that. There is strong evidence of the impact on varying groups, particularly women. I think I am right in saying that the UK is the only country in Europe that does not have a time limit of any sort on immigration detention. That has been the subject of inquiry by the all-party groups on refugees and on migration. They concluded:

“We believe that the United Kingdom has a proud tradition of upholding justice and the right to liberty. However, the continued use of indefinite detention puts this proud tradition at risk.”

The reforms suggested by the cross-party joint APPG group were backed by the House of Commons when they were debated in September this year, and a motion supporting them was passed. The issue is one of increasing concern and justifying indefinite immigration detention is increasingly difficult. Amendment 32 is intended to deal with that by introducing a 28-day limit, which many people feel is the right one.

New clause 13 is intended to allow a review by an independently chaired panel to consider the issues and report to Parliament within three months; it is not premised on a fixed period. It is important that there is progress on these issues. Immigration detention is a real cause for concern and this is an opportunity to do something necessary.

[The Minister for Immigration (James Brokenshire)]

The hon. Gentleman just said that new clause 13 does not prescribe a particular length of time, yet paragraph (a) specifies a 28-day time limit. Will he confirm that that is his position?

[Keir Starmer]

I apologise. I meant that it proposes a review of the time limit rather than a time limit itself, and that therefore, given the nature of the review, it would be open to it to look at other options. There are shared concerns across the House about immigration detention and its indefinite nature. There will be disagreements as to the precise time limit, if there is to be one, and that can be discussed, but at this stage sitting back and simply accepting the status quo is not an acceptable way of proceeding. However, I will obviously listen to what the Minister has to say on this.

--- Later in debate ---

[James Brokenshire]

I thank all right hon. and hon. Members for their contributions on a range of issues, which have highlighted the concerns, passion and interest that so many people have shown throughout the consideration of this Bill. The debate we have had over the last hour and 50 minutes has again underlined that interest and focus, and it is important that the House has been able to debate in this way.

I want to start with the issue of immigration detention, which is one of the key elements of the debate. I want to underline at the outset the fact that the Home Office has a policy to safeguard against unnecessary or arbitrary detention. The presumption is in favour of liberty. Cases must be considered on their individual circumstances. Detention must be used sparingly and for the shortest period necessary. That goes to the heart of some of the elements in new clause 13, which was tabled by my hon. Friend the Member for Enfield, Southgate (Mr Burrowes). This is about having a system that is efficient and effective, but that also treats those within it with dignity and respect.

[Keir Starmer]

rose—

[James Brokenshire]

If I may, I would like to finish this point and then take interventions. I want to set out the fact that the Home Office is conducting detailed analysis of the purposes behind that—in other words, moving towards the policy that I have underlined, including looking at the checks and balances in the systems to ensure that we have a more efficient and more effective process so that people are removed more swiftly and speedily. We also need to reflect on how that sits within an overall framework of removal.

I believe that it is accepted here that detention plays an important role in managing immigration and managing people towards removal, but it has to have removal as its focus. Yes, of course, for certain groups such as foreign national offenders or in certain national security cases, detention might be needed for a slightly longer period, but always with the focus on the realistic prospect of removal taking place. We will come back to this House in the new year—and we intend this to be before the Bill has passed through both Houses—setting out the much broader piece of work that we are undertaking.

Other amendments relate to the issues of vulnerability raised by Steven Shaw. As I have indicated, we intend to respond to it before the Bill has started its Committee in the House of Lords, and we shall also set out proposals for a new detained fast-track, which I suspended because I was not satisfied that the necessary safeguards were in place. It is the sense of how we construct an efficient and effective detention policy that goes to the heart of the issues I have highlighted—of considering cases on their merits, but using detention sparingly and for the shortest period necessary that is consistent with our policy, which must be upheld.

[Keir Starmer]

Does the Minister agree that the reviews he has summarised deal with the issues raised in paragraphs (b) through to (e) in new clause 13? Having set out the policy carefully, does he agree that it is consistent with the principle that we should seek to limit and reduce the time spent in immigration detention?

[James Brokenshire]

As I have said, the current Home Office policy is to use detention sparingly and for the shortest period necessary, which is why our work on ensuring a more efficient and effective system consistent with our obligation is absolutely consistent with the themes redolent in paragraphs (b) to (e) of new clause 13. The difference is that I believe that having a 28-day time period does not advance the cause. It is a blunt instrument that does not take account of the full range of different circumstances that are redolent here from foreign national offenders to those who might not be compliant with the requirements we put upon them or who abscond, so we need to look at the situation on a case-by-case basis. I repeat, however, that we are conducting our review in the light of our focus on efficiency and effectiveness, and we will revert to the House as I have outlined.

A number of other points, including about the right to rent, have been highlighted in the debate. The right-to-rent scheme restricts the access of illegal migrants to the private rented sector, stopping them setting down roots and building ties. The scheme, which has been rolled out to parts of the west midlands, has not proven difficult or burdensome for landlords, but it has led to illegal migrants being apprehended.

The scheme has been in place for one year and is working as intended. The Government published an extensive evaluation of the right-to-rent scheme’s first six months, and this found no hard evidence of discrimination or any new barriers to lawful residents accessing the private rented sector. Repealing the right-to-rent scheme would remove a significant part of the Government’s measures to deter illegal migration. The Bill’s provisions on residential tenancies are aimed to make it easier for the majority of reputable landlords to evict illegal migrant tenants and to crack down further on those rogue landlords who do so much to damage the sector.

The offences are framed to allow for the prosecution of those who are or who have knowingly rented to illegal migrants or who have or had reasonable cause to believe that they were renting to illegal migrants. We believe that that is the right approach, but a conviction will be possible only where the offence has been proven to the criminal threshold of beyond reasonable doubt. These offences are not designed to catch out a landlord who has made a genuine mistake, and it is difficult to foresee a situation in which it would be in the public interest to pursue a prosecution against a landlord making reasonable efforts to remove illegal migrants from their property.

There are concerns about people being evicted without adequate notice or without sufficient safeguards in place—and points were raised about these in the debate on some of the other amendments. However, safeguards already exist. The Secretary of State will serve notices only where she is satisfied that the migrant is here unlawfully and only after taking the migrant’s circumstances into consideration. Should there be recognised barriers to illegal migrants leaving the UK that are not of their own making, these will be taken into account.

The hon. Member for Glasgow North East (Anne McLaughlin) asked about measures relating to charities. Amendment 46 would create what we regard as a significant loophole in the right-to-rent provisions. It could lead to endless quibbling about what is meant by “significantly exceed the costs” and indeed about what constitutes “costs”. I responded in Committee to give an assurance on a number of different aspects, and said that many of the shelters would fall outside the provisions. Our concern is that rogue landlords would take advantage of the measures that the hon. Lady outlined, and we would not want to create such a loophole.

In the debate in Committee on the director of labour market enforcement, there was strong support on all sides for the creation of such a director, which has been reflected in today’s debate, too. The director’s role is already set out in the Bill. The director will set out the strategy for our enforcement bodies to stop exploitation and non-compliance across the spectrum, but there is a difference between the role of the director and that of the anti-slavery commissioner. If we look at all the different aspects of the labour market enforcement strategy, we judge that the provision is right, but we will obviously continue to reflect to ensure that it is appropriately framed.

On the issue of resources, we have recently announced that we will increase HMRC’s budget for 2015-16 by £4 million around the issue of the national minimum wage. The director will analyse the available funds across all the different aspects for which he or she would have responsibility.

Some have raised concerns about the offence. The Government would not want to prosecute those who have been forced to travel here and exploited for the profit of others, which goes to the heart of the matter. That is why the offence is not aimed at the victims of modern slavery. The statutory defence in section 45 of the Modern Slavery Act 2015 will apply.

On some of the issues raised by SNP Members, we maintain that the heart of the issues that matter here are reserved, so it would not be appropriate to accept the proposed amendments. New clause 16 would amend the compensation arrangements for those experiencing financial detriment as a consequence of an illegal working closure notice, but we believe that these provisions are already covered in paragraph 15 of schedule 3 and related safeguards, which are, in our judgment, sufficient. As for James Ewins’s review of overseas domestic workers, it will shortly be published and will no doubt be subject to further consideration at that stage.

I reiterate to right hon. and hon. Members that we have given careful consideration to the Bill and have reflected on a number of the points raised. I hope that, with the assurances I have given, right hon. and hon. Members will be minded not to press their amendments and new clauses to the vote.

Immigration Bill (Fifteenth sitting)

Debate between James Brokenshire and Keir Starmer

Tuesday 17th November 2015 Public Bill Committees

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

May I first echo the Minister’s comments by joining him and everybody in the House in abhorring the attacks that took place this weekend in Paris, as well as all the other attacks that have taken place elsewhere. They are attacks on our values, and we must stand together in our response. Those responsible seek to divide us; we must not be divided. As was said in the House yesterday, they are attacks on our values, our principles and our approach to issues such as refugees. It is important, if we mean what we say about our values and about standing together, that we do not diminish our stand on refugees, human rights and the sort of democratic accountability that this Committee brings to how we pass laws in this country.

Those are important principles, and it is right that this Bill should go through such a process to ensure that there is no diminution of protection for asylum seekers and refugees or of human rights for anybody who finds themselves in this jurisdiction, whether they be an adult, a child, a refugee or anybody else. As human beings, they have human rights, and it is our business to ensure that those rights are fully upheld. I make those comments in response to the comments just made, but nothing that happened this weekend should lead any of us to think that weakening in any way our resolve to deal properly with refugees and human rights issues should be any part of the answer to the atrocities, which we are all united in abhorring.

I will take the new clause and schedule in the order that the Minister did. Paragraph 7 of new schedule 3 is intended to provide a new, simplified definition of a person without immigration status who will generally be ineligible for local authority support. Can he assure us that only those currently excluded from support will continue to be excluded—in other words, that this is a simplification of the process, and that paragraph 7 does not broaden the category of individuals ineligible for support listed in schedule 3(1) of the 2002 Act?

Paragraph 8 of new schedule 3 will provide for the accommodation and subsistence needs of destitute families without immigration status in certain circumstances. Our concern about the provision involves those who are seeking judicial review or have judicial review proceedings pending. Again, can the Minister set out the position on such individuals? It will be a change from the current position, and it excludes that group of individuals from protection. If that is not the case, an assurance to that effect would be helpful, and would go on the record.

Paragraph 4 inserts a new paragraph 3A into schedule 3 of the 2002 Act and relates to how we deal with destitute families. Again, there are two issues for the Minister. First, without knowing the meaning of a “genuine obstacle” to return, how can the Committee assess the impact of the provision? We are considering it against a definition that is not before the Committee. Secondly—he might have dealt with this, but perhaps he can assure me if he did not—can he confirm that the needs provided for under the section appear to be narrower than those provided for under the Children Act 1989? In other words, they appear to omit disability or education needs. Given what he just said, I might be wrong about that, and a simple assurance might deal with that point.

[James Brokenshire]

If I may intervene to save time, I explained that the provision applies to housing and what are effectively direct support needs, but that the provisions of section 17 of the Children Act 1989, which relate to other needs such as medical or care needs, will still remain in force.



[Albert Owen in the Chair]

[Keir Starmer]

I am grateful. I did think that that was what the Minister had said, and I just wanted that assurance.

Turning in a little more detail to the provisions in paragraph 2 dealing with those leaving care, former looked-after children who require leave to enter or remain when they turn 18, but do not have it or are not asylum seekers, will be excluded from receiving accommodation, financial support, a personal adviser, a pathway plan, funds for education or training and any other assistance under various provisions of the Children Act 1989 and from staying put with foster carers or maintaining contact. The Minister says that that is because the needs of those who have no right to be here are different from those of people who have their future in this country. Such individuals are former looked-after children who have just turned 18, and care leavers in such circumstances include those with no immigration status, those who arrived as children and sought asylum and were granted UASC leave, and those who came to the UK at a young age but were never helped to regularise their status.

Such people can only claim access to accommodation and other assistance in limited circumstances. The first is if they are destitute, have been refused asylum and are eligible for support and there is a genuine obstacle to them leaving the UK. The second is if they are destitute and have a pending non-asylum immigration application or appeal. The third is if their rights are exhausted, and regulations will set out the limited circumstances in which they can receive support.

The concern here is that specific provision was made in the Children Act for all children leaving care in recognition of their additional vulnerabilities and the need for additional support in order for them to have the same chances as other young people entering adulthood. The new clause and new schedule fundamentally change that position. There is a real concern that someone who has just turned 18 and who, as a matter of fact and possibly because of vulnerabilities, has simply not regularised their immigration status will be denied support under this provision, which cuts across the thrust of the 1989 Act.

--- Later in debate ---

[James Brokenshire]

I shall respond to the points that have been flagged in the order in which they were made. The hon. and learned Member for Holborn and St Pancras asked a number of questions. I underline that paragraph 7B is principally a matter of clarification. Those failed asylum seekers who claim asylum at port rather than in country are covered by the definition in paragraph 7B; we argue that that provides greater clarity. He made a point about judicial review cases. If someone has been granted permission to seek judicial review in respect of an asylum or article 3 European convention on human rights claim they will now be eligible for section 95 support under schedule 6 to the Bill.

The hon. and learned Gentleman also asked what was meant by a “genuine obstacle to return”. We debated that previously in this Committee and as I previously stated, the principal reasons will be a lack of documentation, including travel documentation, to facilitate return, or medical issues. He commented on the needs of children leaving care—a point further developed by the hon. Member for Rotherham and the hon. Member for Paisley and Renfrewshire North. It is important to underline that the provisions relate to adults rather than children. That is important in the context of the UN convention on the rights of the child, as it defines a child as under the age of 18. Obviously, we are talking about adults who do not have that right to remain in the UK.

It may also be worth highlighting some context here. For example, in 2014 63% of asylum claims made by unaccompanied children were made by young people who arrived aged 16 or 17; therefore they had spent most of their lives outside the UK. When their claims fail and their appeal rights are exhausted, adult migrants are expected to leave this country. Any accommodation, subsistence or other support they require prior to their departure is, in our judgment, better provided under provisions intended for that purpose, not under the Children Act care leaver provisions intended to support the development of young people whose long-term future is in the UK. That is the distinction we draw.

[Keir Starmer]

What does the Minister say to the concern that those coming out of care may very well be vulnerable and traumatised, whatever age they went into care? They might not have regularised their status and will need access, for example, to an adviser even to get as far as an immigration lawyer to start the process. I appreciate what he says about age, but these are children who have just turned 18. What does he say to that group?

[James Brokenshire]

Obviously, if someone comes to this country as an unaccompanied asylum-seeking child, their case will be considered in that context and whether they become appeal rights exhausted up to the point at which they turn 18. It is not simply about how we approach this when someone gets to 18; for example, when they are 17 and a half they are reminded that they do not have status and that they should be regularising their position if they have not already done so. At that stage, obviously, the provisions that would continue to exist for a child, with the potential for a local authority to provide a personal adviser, will have been put in place.

[Keir Starmer]

That answer is inadequate. The Minister makes a distinction between those who are 18 and under 18. What he is saying is that we tell children that they must undertake whatever proceedings they need to regularise their status, and if they do not do so, when they get to 18, when they may still be very vulnerable and in need, they have missed the opportunity, perhaps because, as children, they did not understand what they were supposed to do. How is this supposed to work in practice for that vulnerable group?

[James Brokenshire]

As the hon. and learned Gentleman has already highlighted, support is provided to a child within the meaning of the Children Act. The point we are making is that when someone becomes an adult who is appeal rights exhausted, it is appropriate for the state to seek the removal of that adult from the UK in those circumstances. We are making an in-principle point about facilitating the removal of those with no rights to be here. The hon. and learned Gentleman seems to be suggesting that because someone came to this country as an unaccompanied asylum-seeking child, they have an enhanced right to remain in this country. We are saying that that is not correct. We should of course work with the Home Office to see that someone returns in those circumstances and that they are assisted to do so. Fundamentally, the provisions in the Children Act are designed for those who are likely to stay in the UK. Therefore it is our judgment that they should not apply and that is why we are bringing forward these provisions.

To the hon. Member for Rotherham I would add that we have consulted the Department for Education closely in the preparation of these provisions. The schedule therefore reflects a whole of Government view, rather than just a Home Office view.

--- Later in debate ---

[James Brokenshire]

I am grateful to the hon. and learned Gentleman for proposing the new clause, which seeks to introduce a power to extend the licensing regime contained in the Gangmasters Licensing Act 2004 to new sectors of the economy. It rightly facilitates a debate and I join him in underlining the important work that the GLA has undertaken and how it remains an important agency in seeking to respond to labour market abuses.

The hon. and learned Gentleman will recollect our debates on the director of labour market enforcement and the new strategy that we intend to adopt. He will also remember that I made it clear that it would be for the director of labour market enforcement effectively to make recommendations as to how resources should be applied within the overall spending envelope.

The hon. and learned Gentleman asked about the spending review. Sadly, that is a matter for others, and he will have to wait for the Chancellor’s statement next week. I am not going to tread on the Chancellor’s toes. I think that is the right and proper way. However, I want to touch on the current consultation on the role and remit of the Gangmasters Licensing Authority. Hon. Members have already voiced opinions of the work undertaken by the GLA and I hope they will welcome the consultation and the questions it asks about the GLA’s role in tackling labour market exploitation.

As demonstrated by the amendments to the Modern Slavery Act 2015, which require a review of the role of the GLA, we have taken very seriously the issues raised during debates during the passage of that Act about whether the GLA should have a wider role. Section 55 of the Modern Slavery Act already requires the Government to publish a paper on the role of the GLA and to consult on it. Our current consultation on the GLA and wider labour market exploitation fulfils that requirement.

We are unclear what the new clause seeks to achieve, given that we are in the midst of consulting on the GLA’s remit and role. In fact, our consultation goes further than the new clause proposes. We are seeking views on extending the role of the GLA beyond its current role in licensing gangmasters in certain sectors. The new clause appears to restrict the GLA’s role solely to licensing. We have a broader ambition for the GLA’s contribution to tackling exploitation, which is why we are proposing a new, wider remit for the GLA with new investigatory and enforcement powers to tackle serious cases of labour market exploitation, wherever they occur in the economy. We also want to ensure that the licensing regime can be adapted to fit the latest intelligence and the changing threat of worker exploitation in different sectors. We have set out several proposals in our consultation that we believe would achieve that.

We are looking to the role of the director of labour market enforcement to recommend any changes to the current statutory licensing regime and also to work closely with businesses to identify areas of possible self-regulation. It is the director’s role in considering the use of licensing to tackle labour market exploitation. The consultation proposes that the director should recommend extensions or reductions to the licensing remit. That may identify new sectors beyond those in the remit of the licensing regime where licensing can play a part in tackling worker exploitation.

At paragraph 137 of the consultation document, we suggest:

“a flexible and evidence-based approach to using licensing as a tool to prevent exploitation in the very highest risk sectors. Any changes to the licensed sectors would be agreed by Parliament, after Ministers had considered an evidence based proposal from the Director. This would be based on a risk based intelligence analysis of labour sectors.”

So we are envisaging a regulation-making power that would allow Ministers to change the licensing regime or the sectors covered by licensing through regulations that would be agreed by Parliament, after Ministers had considered the director’s evidence-based proposal. We believe that that would give an appropriate level of scrutiny to the evidence presented for any changes to the licensing regime.

We are consulting on the changes because we recognise the broad support to build on the effectiveness and good work of the GLA by providing the authority with further powers to increase its already strong performance. Once the consultation has closed, we will consider our response, including the funding necessary for the GLA to operate effectively in the context of the spending review, the results of which will be announced shortly. We fully expect that process to conclude during the passage of the Bill.

In the light of the proposals made in the consultation, which would extend the GLA’s enforcement function across the economy and set the framework for evidence-based decisions on licensing, we believe that the new clause is unnecessary, but we look forward to the results of the consultation and a clear, evidence-based analysis, which I hope will strengthen the GLA and our response to illegal working and to those who are abusing the vulnerable. We are adding to the GLA’s functions and to the progress in enhancing our response to bad, inappropriate and at times illegal practices in the labour market. The new enforcement measures contemplated in the Bill will strengthen the GLA.

[Keir Starmer]

The Minister resists the temptation to anticipate the Chancellor, but I wager that the resources for the GLA will go down, not up. All that will be discussed between now and what will be announced is by how much the resources will go down. I hope I am wrong, but I doubt it.

I fear what the Minister and other Ministers have said about savings and cuts. Of course I accept that efficiencies can always be made, but I have deep concerns that, in the area we are discussing, as well as in others, we will look back on the spending review and recognise that we did long-standing damage to the ability of our various agencies and authorities to carry out their necessary work, in particular with those who are most exploited in our society. However, we can return to the subject after the Chancellor’s announcement and see what the position is.

The Minister asked what the purpose of the new clause was. It was to build in a review. I listened carefully to what he said about the consultation and what might follow, and I welcome that. Given what he said about the exercise to be followed, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 6

Additional measures in relation to victims of domestic violence or human trafficking

‘(1) The Immigration Act 2014 is amended in accordance with subsection (2).

(2) In Section 21 after sub-section (4) insert—

“(4A) P is to be treated as having a right to rent in relation to premises (in spite of subsection (2)) if they are in the process of applying for leave to remain under Paragraph 289 of the Immigration Rules as a victim of domestic violence.

(4B) P is to be treated as having a right to rent in relation to premises (in spite of subsection (2)) if they have received a reasonable grounds decision from UK Visas and Immigration that they are a victim of human trafficking.”’—(Keir Starmer.)

This new clause would enable suspected victims of human trafficking or domestic violence, who do not have a final visa giving them leave to remain, the right to enter into a tenancy.

Brought up, and read the First time.

--- Later in debate ---

[Keir Starmer]

I will do my best to be as persuasive as my hon. Friend the Member for Rotherham had she spoken on the proposed provisions. It is convenient to take the two new clauses together.

New clause 6 is in essence an attempt to carve out an exemption to the restrictions on right to rent in relation to two particularly vulnerable groups—suspected victims of domestic violence or human trafficking—and gives them the right to enter into a tenancy. Our concern is the unintended consequence of those two groups not being able to be properly accommodated.

New clause 10 is different. It is intended to provide a right to rent to anyone known to and in touch with the authorities, whom the authorities have chosen not to detain, where they are in a financial position to rent privately. If they are not in a position to rent privately, they would be catered for differently through support, so this is a sub-group within the group that is known to be in touch with the authorities, but not detained. It has been suggested that the Secretary of State will exercise discretionary power in relation to that group. The new clause is intended to put that on a proper statutory basis so that that group is properly protected.

[James Brokenshire]

The Government completely agree that victims of domestic violence and human trafficking should not be disadvantaged as a result of this legislation or the previous Immigration Act. We accept that individuals in such a vulnerable position should have access to the private rented sector. The aims and objectives in new clause 6 are laudable, but we do not believe they are necessary.

When the 2014 Act was before Parliament, we were concerned that the Secretary of State should have sufficient latitude to be able to exempt specific persons from the disqualification on renting premises if need be. Subsection (3) of section 21 of that Act provides that a person is to be treated as having a right to rent if the Secretary of State has granted that person permission to occupy premises under a residential tenancy agreement. That can be exercised on behalf of vulnerable people. In addition, the Act provides exemptions whereby the provisions do not apply to certain excluded tenancy agreements. Schedule 3 specifically excludes hostels and refuges. Paragraph 6(5) to schedule 3 defines refuges as accommodation used for persons who have been subject to violence, threats and other coercive and abusive behaviour, so persons in refuges will not be disadvantaged.

Where a potential victim of human trafficking has received a positive reasonable grounds decision through the national referral mechanism, the Government fund specialist accommodation and support, as do the devolved Administrations, which is provided until a conclusive grounds decision is reached on their status as a victim and on any discretionary leave resulting from that status.

New clause 10 is also unnecessary. Persons seeking asylum who can afford to rent privately, and persons who have a genuine barrier preventing their departure from the UK, can already obtain permission to rent from the Home Office. That permission to rent mechanism already exists in section 21(3) of the Immigration Act 2014. Landlords of prospective migrant tenants who believe that they may qualify for permission to rent can contact the Home Office to conduct a right to rent check.

There is also no need for a statutory provision for permission to rent for persons granted immigration bail. Such persons are always given permission, and Home Office presenting officers have been instructed to assure immigration judges that, should they choose to release an immigrant on bail, the Home Office will provide permission to rent. That is our very clear policy. The tribunal has found this approach acceptable. It is also the case that there may be other instances where permission to rent is appropriate, such as where an illegal immigrant faces a recognised barrier to returning home.

--- Later in debate ---

[Keir Starmer]

I beg to move, That the clause be read a Second time.

I can deal with new clause 7 very briefly because, as hon. Members will see, it is associated with, and is I think the flipside of, amendment 84, which we discussed the week before last. It aims to remove the residential tenancies right to move provisions from the Immigration Act, but the Committee has already had a substantive debate on this, including discussion of the west midlands pilot, and we voted on amendment 84. In those circumstances, whatever our respective views on these provisions, I am not sure they will become any more influential or powerful by being repeated at length. I therefore do not propose to press new clause 7.

[James Brokenshire]

The hon. and learned Gentleman has clearly reaffirmed the Opposition’s position and I do not think, in the interests of time, that there is any merit in my going over some of the detailed debates that we have already had on amendment 84. We have had extensive debate on the right to rent and I know that there is a difference of opinion across the Committee. Equally I know that the hon. and learned Gentleman recognises that a vote has already been taken and that this new clause repeats some of that ground. I welcome his comment that he does not intend to push new clause 7 to a vote.

[Keir Starmer]

I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 8

Persons with a right to rent

‘(1) The Immigration Act 2014 is amended as follows.

(2) In section 21(2)(a) after “have it,” insert “subject to subsection (2A)”.

(3) After section 21(2) insert—

“(2A) P retains a right to rent under this section:

(a) for 90 days after P’s leave to enter or remain comes to an end; or

(b) until the end of the one year beginning with the date on which P’s landlord last complied with the prescribed requirements in respect of P, whichever is longer.”

(4) After section 21(4) (b) insert—

“(c) a person who has retained a right to rent under subsection (2A).”—(Keir Starmer.)

To amend the Immigration Act 2014 to provide protection for landlords and landladies from prosecution when their tenant’s leave comes to an end.

Brought up, and read the First time.

--- Later in debate ---

[Keir Starmer]

I intend to take a similar approach to new clause 8 as I took to new clause 7. It goes, again, to an issue that we have already discussed: the element of protection given to landlords who find themselves in a situation where they are immediately criminalised under the new provisions, about which we expressed considerable concern in the debate that we had the week before last. This provision deals with what we see as the injustice of that situation by providing for a 90-day grace period to protect landlords. It is, in essence, a version of the argument, or the submission, that we made two weeks ago, which was dealt with by a vote on protection for landlords. Again, I doubt that in the intervening two weeks the arguments on either side have either changed or strengthened, so I will not press the new clause.

New clause 9 has one foot in the camp of having already been discussed and one foot in the camp of being new. The last time we touched on similar provisions was in relation to a concern about those in a household who may find themselves advertising for co-tenants. The example discussed in Committee was that of students in a flat who might advertise when one of their number leaves. The Minister gave various assurances and made it clear that in those circumstances they would not come within the definition of an agent and therefore there was no need for concern. I accept that and, from memory, we withdrew the amendment on that basis.

New clause 9 is concerned with a not dissimilar situation, of a landlord renting accommodation that is shared by the landlord or a member of his or her family. It draws a distinction between, on the one hand, professional landlords, and on the other, those who simply let out a room in their house or flat. There is no real evidence on the likely impact of the new provisions on that group, but they will be impactful. New clause 9 drives at that group of individuals.

[James Brokenshire]

As the Government have explained, the new offences relating to landlords and agents will be targeted at cases where there has been repeated or particularly serious behaviour as regards renting to illegal migrants or failing to evict them. As I made clear and as we have debated previously, it is not intended to target landlords who are unaware that someone is disqualified from renting, nor will such landlords meet the

“knows or has reasonable cause to believe”

threshold required for commission of the offence. It is not intended to take steps to prosecute landlords who are taking reasonable steps to remove someone they know to be disqualified from their property. I recognise that, in part, new clause 8 goes over ground that we have debated at length in Committee, therefore I do not see a need to rerehearse some of the issues debated previously.

New clause 9 touches on some different points and seeks to place lodgers and instances where a person is renting to a family member outside the scope of the right to rent scheme. That was debated at some length at the time of the Immigration Act 2014 and was considered by the House in the context of its application to lodgers. There is already guidance about the position of those renting to close family. For example, undertaking a right to rent check provides a landlord with an excuse as regards the civil penalty. Where someone is confident that their family member is lawfully in the UK, there will be no need for them to undertake the checks to establish that excuse.

Our concern is that taking lodgers out of the scheme will mean that a significant number of illegal migrants and those who exploit them are left untouched, in essence creating a gap in the legislation. That would provide an easy means by which rogue landlords could avoid any sanctions, for instance by arguing that the property was their family home or by arranging for one tenant to take in another occupant as a lodger. Sadly, we know that there is exploitation, there are rogue landlords and that that is a risk. We believe that the checks are straightforward and should be no more difficult for someone letting out a spare room than for any other person who might be within the ambit of the Bill, for example through a formal tenancy. Anyone who accepts remuneration for renting property should accept the responsibilities involved in doing so, such as carrying out the basic checks previously debated and discussed in Committee. The concern about the gap that would be created and the risk that it might lead to further exploitation, with people being taken advantage of, means that we judge that this provision is not appropriate.

--- Later in debate ---

[James Brokenshire]

It is obviously difficult, nor would it be right, for me to comment on specific arrangements. I have already talked about refuges and the separate exemptions that apply regarding the support provided for victims of trafficking, and in other circumstances within the definitions that were set out. I have spoken about the issue of nothing of monetary value changing hands, but ultimately we are looking at those with no right to be in the country. That is, I suppose, the basis of the question, and therefore some charitable support might be provided in other circumstances. That is why I must be careful in understanding the specifics, but I think that existing exemptions apply, and these were considered in detail when the right to rent scheme was original considered by the House. There are specific exemptions that we judge to be appropriate, and which cover, in particular, issues of vulnerability and abuse. Refuges play an incredible and essential role in providing appropriate support, and they are normally run by charities and other non-governmental organisations. It was right to put in those exemptions and we judge that they remain appropriate.

[Keir Starmer]

I am grateful for the Minister’s comments, in particular on new clause 8. I think he said that it was not the intention to prosecute landlords who took reasonable steps to take adequate action. As he well knows, in the end that is a matter for those who prosecute, but what he has said will now be on the record. It gives some assurance, certainly to Labour members of the Committee and also to landlords who have raised the issue with us, as well as with other members of the Committee, on a number of occasions. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 11

Eligibility for housing and homelessness assistance

“The Secretary of State shall make provision by regulations to ensure that a person granted leave to enter or remain under section 3 of the Immigration Act 1971, whether under rules made under that section or otherwise, who is eligible for public funds shall also be eligible for housing and homelessness services.”—(Keir Starmer.)

Brought up, and read the First time.

--- Later in debate ---

[James Brokenshire]

Migrants granted leave to enter or remain in the UK are generally expected to be able to maintain and accommodate themselves without recourse to public funds in the form of mainstream welfare benefits or local authority housing support. There is legislation in place to ensure that the majority of migrants cannot access those public funds. The Government are aware that in some cases a person granted immigration leave with no bar to accessing public funds might require local authority housing or homelessness support but would currently be ineligible as they are not settled here.

The Home Office is working with other Departments—the Department for Communities and Local Government in particular—to remedy the situation as swiftly as possible. It does not follow, however, that everyone who has been granted leave should have an immediate and enforceable claim to access local authority support and services, even where there is no bar to them accessing other public funds.

The No Recourse to Public Funds Network has highlighted the issue of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006, which control access to homelessness assistance and still refer to the discretionary leave category. That is quite a technical but important point. I assure the Committee that we are working closely with the Department for Communities and Local Government to examine amendments to the 2006 regulations, which is the relevant point.

There is an issue here, but I hope, with that assurance, the hon. and learned Member for Holborn and St Pancras will be minded to withdraw the new clause, while noting that this is something we are aware of and will take steps to remedy.

[Keir Starmer]

The purpose of a probing amendment is to identify a particular concern and seek assurance on it. The Minister gave that assurance and says all are working on a remedy. In those circumstances, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Schedule 1

Private hire vehicles etc

Metropolitan Public Carriage Act 1869 (c. 115)

1 The Metropolitan Public Carriage Act 1869 is amended as follows.

2 In section 8(7) (driver’s licence to be in force for three years unless suspended or revoked) for “A” substitute “Subject to section 8A, a”.

3 After section 8 insert—

“8A Drivers’ licences for persons subject to immigration control

(1) Subsection (2) applies if—

(a) a licence under section 8 is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period (“the leave period”),

(b) the person’s leave has not been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision), and

(c) apart from subsection (2), the period for which the licence would have been in force would have ended after the end of the leave period.

(2) Transport for London must grant the licence for a period which ends at or before the end of the leave period.

(3) Subsection (4) applies if—

(a) a licence under section 8 is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period, and

(b) the person’s leave has been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision).

(4) Transport for London must grant the licence for a period that does not exceed six months.

(5) A licence under section 8 ceases to be in force if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from driving a hackney carriage.

(6) If subsection (5) applies to a licence, the person to whom it was granted must, within the period of 7 days beginning with the day after the day on which the person first became disqualified, return to Transport for London—

(a) the licence,

(b) the person’s copy of the licence (if any), and

(c) the person’s driver’s badge.

(7) A person who, without reasonable excuse, contravenes subsection (6) is guilty of an offence and liable on summary conviction—

(a) to a fine not exceeding level 3 on the standard scale, and

(b) in the case of a continuing offence, to a fine not exceeding ten pounds for each day during which an offence continues after conviction.

(8) For the purposes of this section a person is disqualified by reason of the person’s immigration status from driving a hackney carriage if the person is subject to immigration control and —

(a) the person has not been granted leave to enter or remain in the United Kingdom, or

(b) the person’s leave to enter or remain in the United Kingdom—

(i) is invalid,

(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or

(iii) is subject to a condition preventing the individual from driving a hackney carriage.

(9) Where a person is on immigration bail within the meaning of Part 1 of Schedule 5 to the Immigration Act 2016—

(a) the person is to be treated for the purposes of this section 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.

(10) For the purposes of this section a person is subject to immigration control if under the Immigration Act 1971 the person requires leave to enter or remain in the United Kingdom.”

Local Government (Miscellaneous Provisions) Act 1976 (c. 57)

4 The Local Government (Miscellaneous Provisions) Act 1976 is amended as follows.

5 (1) Section 51 (licensing of drivers of private hire vehicles) is amended as follows.

(2) In subsection (1)—

(a) in paragraph (a) after “satisfied” insert “—(i)”, and

(b) for the “or” at the end of paragraph (a) substitute “and

(ii) that the applicant is not disqualified by reason of the applicant’s immigration status from driving a private hire vehicle; or”.

(3) After subsection (1) insert—

“(1ZA) In determining for the purposes of subsection (1) whether an applicant is disqualified by reason of the applicant’s immigration status from driving a private hire vehicle, a district council must have regard to any guidance issued by the Secretary of State.”

6 In section 53(1) (drivers’ licences for hackney carriages and private hire vehicles)—

(a) in paragraph (a) for “Every” substitute “Subject to section 53A, every”, and

(b) in paragraph (b) after “1889,” insert “but subject to section 53A,”.

7 After section 53 insert—

“53A Drivers’ licences for persons subject to immigration control

(1) Subsection (2) applies if—

(a) a licence within section 53(1)(a) or (b) is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period (“the leave period”);

(b) the person’s leave has not been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision); and

(c) apart from subsection (2), the period for which the licence would have been in force would have ended after the end of the leave period.

(2) The district council which grants the licence must specify a period in the licence as the period for which it remains in force; and that period must end at or before the end of the leave period.

(3) Subsection (4) applies if—

(a) a licence within section 53(1)(a) or (b) is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period; and

(b) the person’s leave has been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision).

(4) The district council which grants the licence must specify a period in the licence as the period for which it remains in force; and that period must not exceed six months.

(5) A licence within section 53(1)(a) ceases to be in force if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from driving a private hire vehicle.

(6) A licence within section 53(1)(b) ceases to be in force if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from driving a hackney carriage.

(7) If subsection (5) or (6) applies to a licence, the person to whom it was granted must, within the period of 7 days beginning with the day after the day on which the person first became disqualified, return the licence and the person’s driver’s badge to the district council which granted the licence.

(8) A person who, without reasonable excuse, contravenes subsection (7) is guilty of an offence and liable on summary conviction—

(a) to a fine not exceeding level 3 on the standard scale; and

(b) in the case of a continuing offence, to a fine not exceeding ten pounds for each day during which an offence continues after conviction.”

8 (1) Section 55 (licensing of operators of private hire vehicles) is amended as follows.

(2) In subsection (1)—

(a) after “satisfied” insert “—(a)”, and

(b) at the end of paragraph (a) insert “; and

(b) if the applicant is an individual, that the applicant is not disqualified by reason of the applicant’s immigration status from operating a private hire vehicle.”

(3) After subsection (1) insert—

“(1A) In determining for the purposes of subsection (1) whether an applicant is disqualified by reason of the applicant’s immigration status from operating a private hire vehicle, a district council must have regard to any guidance issued by the Secretary of State.”

(4) In subsection (2) for “Every” substitute “Subject to section 55ZA, every”.

9 After section 55 insert—

“55ZA Operators’ licences for persons subject to immigration control

(1) Subsection (2) applies if—

(a) a licence under section 55 is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period (“the leave period”);

(b) the person’s leave has not been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision); and

(c) apart from subsection (2), the period for which the licence would have been in force would have ended after the end of the leave period.

(2) The district council which grants the licence must specify a period in the licence as the period for which it remains in force; and that period must end at or before the end of the leave period.

(3) Subsection (4) applies if—

(a) a licence under section 55 is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period; and

(b) the person’s leave has been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision).

(4) The district council which grants the licence must specify a period in the licence as the period for which it remains in force; and that period must not exceed six months.

(5) A licence under section 55 ceases to be in force if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from operating a private hire vehicle.

(6) If subsection (5) applies to a licence, the person to whom it was granted must, within the period of 7 days beginning with the day after the day on which the person first became disqualified, return it to the district council which granted the licence.

(7) A person who, without reasonable excuse, contravenes subsection (6) is guilty of an offence and liable on summary conviction—

(a) to a fine not exceeding level 3 on the standard scale; and

(b) in the case of a continuing offence, to a fine not exceeding ten pounds for each day during which an offence continues after conviction.”

10 (1) Section 59 (qualification for drivers of hackney carriages) is amended as follows.

(2) In subsection (1)—

(a) in paragraph (a) after “satisfied” insert “—(i)”, and

(b) for the “or” at the end of paragraph (a) substitute “and

(ii) that the applicant is not disqualified by reason of the applicant’s immigration status from driving a hackney carriage; or”.

(3) After subsection (1) insert—

“(1ZA) In determining for the purposes of subsection (1) whether an applicant is disqualified by reason of the applicant’s immigration status from driving a hackney carriage, a district council must have regard to any guidance issued by the Secretary of State.”

11 In section 61(1) (suspension and revocation of drivers’ licences) before the “or” at the end of paragraph (a) insert—

“(aa) that he has since the grant of the licence been convicted of an immigration offence or required to pay an immigration penalty;”.

12 In section 62(1) (suspension and revocation of operators’ licences) before the “or” at the end of paragraph (c) insert—

“(ca) that the operator has since the grant of the licence been convicted of an immigration offence or required to pay an immigration penalty;”.

13 In section 77 (appeals) after subsection (3) insert—

“(4) On an appeal under this Part of this Act or an appeal under section 302 of the Act of 1936 as applied by this section, the court is not entitled to entertain any question as to whether—

(a) a person should be, or should have been, granted leave to enter or remain in the United Kingdom; or

(b) a person has, after the date of the decision being appealed against, been granted leave to enter or remain in the United Kingdom.”

14 After section 79 insert—

“79A Persons disqualified by reason of immigration status

(1) For the purposes of this Part of this Act a person is disqualified by reason of the person’s immigration status from carrying on a licensable activity if the person is subject to immigration control and —

(a) the person has not been granted leave to enter or remain in the United Kingdom; or

(b) the person’s leave to enter or remain in the United Kingdom—

(i) is invalid;

(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise); or

(iii) is subject to a condition preventing the individual from carrying on the licensable activity.

(2) Where a person is on immigration bail within the meaning of Part 1 of Schedule 5 to the Immigration Act 2016—

(a) the person is to be treated for the purposes of this Part of this Act 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.

(3) For the purposes of this section a person is subject to immigration control if under the Immigration Act 1971 the person requires leave to enter or remain in the United Kingdom.

(4) For the purposes of this section a person carries on a licensable activity if the person—

(a) drives a private hire vehicle;

(b) operates a private hire vehicle; or

(c) drives a hackney carriage.

79B Immigration offences and immigration penalties

(1) In this Part of this Act “immigration offence” means—

(a) an offence under any of the Immigration Acts;

(b) an offence under section 1 of the Criminal Attempts Act 1981 of attempting to commit an offence within paragraph (a); or

(c) an offence under section 1 of the Criminal Law Act 1977 of conspiracy to commit an offence within paragraph (a).

(2) In this Part of this Act “immigration penalty” means a penalty under—

(a) section 15 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”); or

(b) section 23 of the Immigration Act 2014 (“the 2014 Act”).

(3) For the purposes of this Part of this Act a person to whom a penalty notice under section 15 of the 2006 Act has been given is not to be treated as having been required to pay an immigration penalty if—

(a) the person is excused payment by virtue of section 15(3) of that Act; or

(b) the penalty is cancelled by virtue of section 16 or 17 of that Act.

(4) For the purposes of this Part of this Act a person to whom a penalty notice under section 15 of the 2006 Act has been given is not to be treated as having been required to pay an immigration penalty until such time as—

(a) the period for giving a notice of objection under section 16 of that Act has expired and the Secretary of State has considered any notice given within that period; and

(b) if a notice of objection was given within that period, the period for appealing under section 17 of that Act has expired and any appeal brought within that period has been finally determined, abandoned or withdrawn.

(5) For the purposes of this Part of this Act a person to whom a penalty notice under section 23 of the 2014 Act has been given is not to be treated as having been required to pay an immigration penalty if—

(a) the person is excused payment by virtue of section 24 of that Act; or

(b) the penalty is cancelled by virtue of section 29 or 30 of that Act.

(6) For the purposes of this Part of this Act a person to whom a penalty notice under section 23 of the 2014 Act has been given is not to be treated as having been required to pay an immigration penalty until such time as—

(a) the period for giving a notice of objection under section 29 of that Act has expired and the Secretary of State has considered any notice given within that period; and

(b) if a notice of objection was given within that period, the period for appealing under section 30 of that Act has expired and any appeal brought within that period has been finally determined, abandoned or withdrawn.”

Private Hire Vehicles (London) Act 1998 (c. 34)

15 The Private Hire Vehicles (London) Act 1998 is amended as follows.

16 In section 1(1) (meaning of “private hire vehicle” etc)—

(a) omit the “and” at the end of paragraph (a), and

(b) at the end of paragraph (b) insert “; and

(c) “operate”, in relation to a private hire vehicle, means to make provision for the invitation or acceptance of, or to accept, private hire bookings in relation to the vehicle.”

17 (1) Section 3 (London operator’s licences) is amended as follows.

(2) In subsection (3) for the “and” at the end of paragraph (a) substitute—

“(aa) if the applicant is an individual, the applicant is not disqualified by reason of the applicant’s immigration status from operating a private hire vehicle; and”

(3) After subsection (3) insert—

“(3A) In determining for the purposes of subsection (3) whether an applicant is disqualified by reason of the applicant’s immigration status from operating a private hire vehicle, the licensing authority must have regard to any guidance issued by the Secretary of State.”

(4) In subsection (5) for “A” substitute “Subject to section 3A, a”.

18 After section 3 insert—

“3A London PHV operator’s licences for persons subject to immigration control

(1) Subsection (2) applies if—

(a) a London PHV operator’s licence is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period (“the leave period”);

(b) the person’s leave has not been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision); and

(c) apart from subsection (2), the period for which the licence would have been granted would have ended after the end of the leave period.

(2) The licence must be granted for a period which ends at or before the end of the leave period.

(3) Subsection (4) applies if—

(a) a London PHV operator’s licence is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period; and

(b) the person’s leave has been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision).

(4) The licence must be granted for a period which does not exceed six months.

(5) A London PHV operator’s licence ceases to be in force if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from operating a private hire vehicle.

(6) If subsection (5) applies to a licence, the person to whom it was granted must, within the period of 7 days beginning with the day after the day on which the person first became disqualified, return it the licensing authority.

(7) A person who, without reasonable excuse, contravenes subsection (6) is guilty of an offence and liable on summary conviction—

(a) to a fine not exceeding level 3 on the standard scale; and

(b) in the case of a continuing offence, to a fine not exceeding ten pounds for each day during which an offence continues after conviction.”

19 (1) Section 13 (London PHV driver’s licences) is amended as follows.

(2) In subsection (2) for the “and” at the end of paragraph (a) substitute—

“(aa) the applicant is not disqualified by reason of the applicant’s immigration status from driving a private hire vehicle; and”

(3) After subsection (2) insert—

“(2A) In determining for the purposes of subsection (2) whether an applicant is disqualified by reason of the applicant’s immigration status from driving a private hire vehicle, the licensing authority must have regard to any guidance issued by the Secretary of State.”

(4) In subsection (5) at the beginning of paragraph (c) insert “subject to section 13A,”.

20 After section 13 insert—

“13A London PHV driver’s licences for persons subject to immigration control

(1) Subsection (2) applies if—

(a) a London PHV driver’s licence is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period (“the leave period”);

(b) the person’s leave has not been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision); and

(c) apart from subsection (2), the period for which the licence would have been granted would have ended after the end of the leave period.

(2) The licence must be granted for a period which ends at or before the end of the leave period.

(3) Subsection (4) applies if—

(a) a London PHV driver’s licence is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period; and

(b) the person’s leave has been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision).

(4) The licence must be granted for a period which does not exceed six months.

(5) A London PHV driver’s licence ceases to be in force if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from driving a private hire vehicle.

(6) If subsection (5) applies to a licence, the person to whom it was granted must, within the period of 7 days beginning with the day after the day on which the person first became disqualified, return the licence and the person’s driver’s badge to the licensing authority.

(7) A person who, without reasonable excuse, contravenes subsection (6) is guilty of an offence and liable on summary conviction—

(a) to a fine not exceeding level 3 on the standard scale; and

(b) in the case of a continuing offence, to a fine not exceeding ten pounds for each day during which an offence continues after conviction.”

21 (1) Section 16 (power to suspend or revoke licences) is amended as follows.

(2) In subsection (2) before the “or” at the end of paragraph (a) insert—

“(aa) the licence holder has, since the grant of the licence, been convicted of an immigration offence or required to pay an immigration penalty;”.

(3) In subsection (4) at the end of paragraph (a) insert—

“(aa) the licence holder has, since the grant of the licence, been convicted of an immigration offence or required to pay an immigration penalty;”.

22 In section 25 (appeals) after subsection (7) insert—

“(8) On an appeal under this Act to the magistrates’ court or the Crown Court, the court is not entitled to entertain any question as to whether—

(a) a person should be, or should have been, granted leave to enter or remain in the United Kingdom; or

(b) a person has, after the date of the decision being appealed against, been granted leave to enter or remain in the United Kingdom.”

23 After section 35 insert—

“35A Persons disqualified by reason of immigration status

(1) For the purposes of this Act a person is disqualified by reason of the person’s immigration status from carrying on a licensable activity if the person is subject to immigration control and —

(a) the person has not been granted leave to enter or remain in the United Kingdom; or

(b) the person’s leave to enter or remain in the United Kingdom—

(i) is invalid;

(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise); or

(iii) is subject to a condition preventing the individual from carrying on the licensable activity.

(2) Where a person is on immigration bail within the meaning of Part 1 of Schedule 5 to the Immigration Act 2016—

(a) the person is to be treated for the purposes of this Part 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.

(3) For the purposes of this section a person is subject to immigration control if under the Immigration Act 1971 the person requires leave to enter or remain in the United Kingdom.

(4) For the purposes of this section a person carries on a licensable activity if the person—

(a) operates a private hire vehicle; or

(b) drives a private hire vehicle.

35B Immigration offences and immigration penalties

(1) In this Act “immigration offence” means—

(a) an offence under any of the Immigration Acts;

(b) an offence under section 1 of the Criminal Attempts Act 1981 of attempting to commit an offence within paragraph (a); or

(c) an offence under section 1 of the Criminal Law Act 1977 of conspiracy to commit an offence within paragraph (a).

(2) In this Act “immigration penalty” means a penalty under—

(a) section 15 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”), or

(b) section 23 of the Immigration Act 2014 (“the 2014 Act”).

(3) For the purposes of this Act a person to whom a penalty notice under section 15 of the 2006 Act has been given is not to be treated as having been required to pay an immigration penalty if—

(a) the person is excused payment by virtue of section 15(3) of that Act; or

(b) the penalty is cancelled by virtue of section 16 or 17 of that Act.

(4) For the purposes of this Act a person to whom a penalty notice under section 15 of the 2006 Act has been given is not to be treated as having been required to pay an immigration penalty until such time as—

(a) the period for giving a notice of objection under section 16 of that Act has expired and the Secretary of State has considered any notice given within that period; and

(b) if a notice of objection was given within that period, the period for appealing under section 17 of that Act has expired and any appeal brought within that period has been finally determined, abandoned or withdrawn.

(5) For the purposes of this Act a person to whom a penalty notice under section 23 of the 2014 Act has been given is not to be treated as having been required to pay an immigration penalty if—

(a) the person is excused payment by virtue of section 24 of that Act; or

(b) the penalty is cancelled by virtue of section 29 or 30 of that Act.

(6) For the purposes of this Act a person to whom a penalty notice under section 23 of the 2014 Act has been given is not to be treated as having been required to pay an immigration penalty until such time as—

(a) the period for giving a notice of objection under section 29 of that Act has expired and the Secretary of State has considered any notice given within that period; and

(b) if a notice of objection was given within that period, the period for appealing under section 30 of that Act has expired and any appeal brought within that period has been finally determined, abandoned or withdrawn.”

24 In section 36 (interpretation) at the appropriate place insert—

““operate” has the meaning given in section 1(1);”.” —(James Brokenshire.)

This amendment amends the licensing regimes for taxis and private hire vehicles in England and Wales to prevent illegal working in these sectors. It includes the addition of requirements for licence grant to be conditional on leave and for licence length to be limited by a person’s leave duration.

Brought up, read the First and Second time, and added to the Bill.

New Schedule 2

Duty to supply nationality documents to Secretary of State: persons to whom duty applies Persons to whom section 20A applies

1 This is the new Schedule A1 to the Immigration and Asylum Act 1999 referred to in section (Supply of information to Secretary of State)—

“Schedule A1

Persons to whom section 20A applies

Law enforcement

1 The chief officer of police for a police area in England and Wales.

2 The chief constable of the Police Service of Scotland.

3 The Chief Constable of the Police Service of Northern Ireland.

4 The Chief Constable of the British Transport Police Force.

5 A Port Police Force established under an order made under section 14 of the Harbours Act 1964.

6 The Port Police Force established under Part 10 of the Port of London Act 1968.

7 A Port Police Force established under section 79 of the Harbours, Docks and Piers Clauses Act 1847.

8 The National Crime Agency.

Local government

9 A county council or district council in England.

10 A London borough council.

11 The Greater London Authority.

12 The Common Council of the City of London in its capacity as a local authority.

13 The Council of the Isles of Scilly.

14 A county council or a county borough council in Wales.

15 A council constituted under section 2 of the Local Government etc (Scotland) Act 1994.

16 A district council in Northern Ireland.

Regulatory bodies

17 The Gangmasters Licensing Authority.

18 The Security Industry Authority.

Health bodies

19 An NHS trust established under section 25 of the National Health Service Act 2006 or under section 18 of the National Health Service (Wales) Act 2006.

20 An NHS foundation trust within the meaning given by section 30 of the National Health Service Act 2006.

21 A Local Health Board established under section 11 of the National Health Service (Wales) Act 2006.

22 A National Health Service Trust established under section 12A of the National Health Service (Scotland) Act 1978.

23 A Health and Social Care trust established under Article 10 of the Health and Personal Social Services (Northern Ireland) Order 1991 (SI 1991/194 (NI 1)).

Registration officials

24 The Registrar General for England and Wales.

25 A superintendent registrar of births, deaths and marriages.

26 A registrar of births, deaths and marriages.

27 A civil partnership registrar within the meaning of Chapter 1 of Part 2 of the Civil Partnership Act 2004 (see section 29 of that Act).

28 The Registrar General for Scotland.

29 A district registrar within the meaning of section 7 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965.

30 A senior registrar within the meaning of that section.

31 An assistant registrar within the meaning of that section.

32 The Registrar General for Northern Ireland.

33 A person appointed under Article 31(1) or (3) of the Marriage (Northern Ireland) Order 2003 (SI 2003/413 (NI 3)).

34 A person appointed under section 152(1) or (3) of the Civil Partnership Act 2004.

Other bodies: Northern Ireland

35 The Northern Ireland Housing Executive.” —(James Brokenshire.)

This amendment inserts a new Schedule A1 into the Immigration and Asylum Act 1999 listing the bodies which are subject to the duty to provide nationality documents to the Secretary of State under the new section 20A for that Act (see NC15).

Brought up, read the First and Second time, and added to the Bill.

New Schedule 3

Availability of local authority support

1 Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (withholding and withdrawal of support) is amended as follows.

2 (1) Paragraph 1 (ineligibility for support) is amended as follows.

(2) In sub-paragraph (1) (excluded support or assistance) after paragraph (g) insert—

(ga) in relation only to a person to whom this paragraph applies by virtue of paragraph 7B—

(i) section 23CZA of that Act (arrangements for certain former relevant children to continue to live with former foster parents), or

(ii) regulations under section 23D of that Act (personal advisers),”.

(3) After sub-paragraph (2) insert—

“(2A) In the case of the provisions referred to in sub-paragraph (1)(ga), sub-paragraph (2) applies only in relation to a person to whom this paragraph applies by virtue of paragraph 7B.”

3 (1) Paragraph 2(1) (exceptions) is amended as follows.

(2) In paragraph (c) for “or 10” substitute “, 10, 10A or 10B”.

(3) After the “or” at the end of paragraph (c) insert—

(ca) under section 95A or 98A of the Immigration and Asylum Act 1999 (support for failed asylum seekers etc), or”.

4 After paragraph 3 insert—

3A Notwithstanding paragraph 3, paragraph 1(1)(g) prevents a local authority in England from providing support or assistance under section 17 of the Children Act 1989 to a person in respect of a child if —

(a) the support or assistance is of a type that could be provided to the person by virtue of paragraph 10A (see paragraph 10A(7)), and

(b) support is being provided to the person by virtue of paragraph 10A or there are reasonable grounds for believing that support will be provided to the person by virtue of that paragraph.

3B Notwithstanding paragraph 3, paragraph 1(1)(g) prevents a local authority in England from providing support or assistance under section 23C, 23CA, 24A or 24B of the Children Act 1989 to a person if—

(a) support is being provided to the person by virtue of paragraph 10B or section 95A of the Immigration and Asylum Act 1999, or

(b) there are reasonable grounds for believing that support will be provided to the person by virtue of that paragraph or section.

3C Notwithstanding paragraph 3, paragraph 1(1)(ga) prevents a local authority in England from providing support or assistance under a provision mentioned in paragraph (ga) to a person if—

(a) support is being provided to the person by virtue of paragraph 10B or section 95A of the Immigration and Asylum Act 1999, or

(b) there are reasonable grounds for believing that support will be provided to the person by virtue of that paragraph or section.”

5 In paragraph 6 (third class of ineligible person: failed asylum-seeker), in sub-paragraph (1), in the words before sub-paragraph (a), after “person” insert “in Wales, Scotland or Northern Ireland”.

6 In paragraph 7 (fourth class of ineligible person: person unlawfully in United Kingdom), in the words before sub-paragraph (a), after “person” insert “in Wales, Scotland or Northern Ireland”.

7 Before paragraph 8 insert—

“Sixth class of ineligible person: person in England without leave to enter or remain

7B (1) Paragraph 1 applies to a person in England if—

(a) under the Immigration Act 1971, he requires leave to enter or remain in the United Kingdom but does not have it, and

(b) he is not an asylum-seeker.

(2) Paragraph 1 also applies to a dependant of a person to whom that paragraph applies by virtue of sub-paragraph (1).”

8 After paragraph 10 insert—

“Accommodation and subsistence etc: England

10A (1) The Secretary of State may make regulations providing for arrangements to be made for support to be provided to a person to whom paragraph 1 applies by virtue of paragraph 7B(1) and—

(a) who is destitute,

(b) who has with him a dependent child,

(c) to whom section 95A of the Immigration and Asylum Act 1999 does not apply, and

(d) in relation to whom condition A, B, C or D is satisfied.

(2) Condition A is that—

(a) the person has made an application for leave to enter or remain in the United Kingdom and has not withdrawn the application,

(b) where regulations under this paragraph require that the application must be of a kind specified in the regulations for this condition to be satisfied, the application is of that kind, and

(c) the application has not been determined.

(3) Condition B is that—

(a) the person has appealed under section 82(1), and

(b) the appeal is pending within the meaning of section 104.

(4) Condition C is that—

(a) the person’s appeal rights are exhausted, and

(b) he has not failed to cooperate with arrangements that would enable him to leave the United Kingdom.

(5) Condition D is that the provision of support is necessary to safeguard and promote the welfare of a dependent child.

(6) Arrangements for a person by virtue of this paragraph may include arrangements for a dependant.

(7) The support that may be provided under arrangements by virtue of this paragraph may take the form of —

(a) accommodation;

(b) subsistence in kind, or cash or vouchers to pay for subsistence.

(8) Subsections (3) to (8) of section 95 of the Immigration and Asylum Act 1999 (meaning of “destitute”) apply for the purposes of this paragraph as they apply for the purposes of that section.

(9) For the purposes of sub-paragraph (2) regulations under this paragraph may provide for circumstances in which—

(a) a person is to be treated as having made an application for leave to enter or remain in the United Kingdom (despite not having made one);

(b) a person is to be treated as not having made such an application where the Secretary of State is satisfied that the application made is vexatious or wholly without merit.

(10) For the purposes of sub-paragraph (4) a person’s appeal rights are exhausted at the time when—

(a) he could not bring an appeal under section 82 (ignoring any possibility of an appeal out of time with permission), and

(b) no appeal brought by him is pending within the meaning of section 104.

10B (1) The Secretary of State may make regulations providing for arrangements to be made for support to be provided to a person to whom paragraph 1 applies by virtue of paragraph 7B(1) and—

(a) who is a former relevant child within the meaning of section 23C of the Children Act 1989,

(b) to whom section 95A of the Immigration and Asylum Act 1999 does not apply, and

(c) in relation to whom condition A, B or C is satisfied.

(2) Condition A is that—

(a) the person is destitute,

(b) the person has made an application for leave to enter or remain in the United Kingdom and has not withdrawn the application,

(c) where regulations under this paragraph require that the application must be of a kind specified in the regulations for this condition to be satisfied, the application is of that kind, and

(d) the application has not been determined.

(3) Condition B is that—

(a) the person is destitute,

(b) the person has appealed under section 82(1), and

(c) the appeal is pending within the meaning of section 104.

(4) Condition C is that—

(a) the person’s appeal rights are exhausted, and

(b) a person specified in regulations under this paragraph is satisfied that support needs to be provided to the person.

(5) The support that may be provided under arrangements by virtue of this paragraph may, in particular, take the form of —

(a) accommodation;

(b) subsistence in kind, or cash or vouchers to pay for subsistence.

(6) Subsections (3) to (8) of section 95 of the Immigration and Asylum Act 1999 (meaning of “destitute”) apply for the purposes of this paragraph as they apply for the purposes of that section.

(7) For the purposes of sub-paragraph (3) regulations under this paragraph may provide for circumstances in which—

(a) a person is to be treated as having made an application for leave to enter or remain in the United Kingdom (despite not having made one);

(b) a person is to be treated as not having made such an application where the Secretary of State is satisfied that the application made is vexatious or wholly without merit.

(8) For the purposes of sub-paragraph (5) a person’s appeal rights are exhausted at the time when—

(a) he could not bring an appeal under section 82 (ignoring any possibility of an appeal out of time with permission), and

(b) no appeal brought by him is pending within the meaning of section 104.”

9 In paragraph 11 (assistance and accommodation: general), in the words before sub-paragraph (a), for “or 10” substitute “, 10, 10A or 10B”.

10 In paragraph 13 (offences), in sub-paragraphs (1)(b) and (2)(a), for “or 10” substitute “, 10, 10A or 10B”.

11 In paragraph 14 (information), in sub-paragraphs (1) and (2), for “or 7” (as substituted by paragraph 25(8)(b) of Schedule 6) substitute “, 7 or 7B”.” —(James Brokenshire.)

This new Schedule simplifies the basis on which local authorities in England assess and provide accommodation and subsistence for destitute families without immigration status. It prevents adult migrant care leavers who have exhausted their appeal rights accessing Children Act support and provides for their pre-departure support.

Brought up, and read the First time.

Question put, That the schedule be read a Second time.

Immigration Bill (Fourteenth sitting)

Debate between James Brokenshire and Keir Starmer

Tuesday 10th November 2015 Public Bill Committees

[The Minister for Immigration (James Brokenshire)]

I hope that, with our clarifications and assurances, hon. Members will realise our purpose and intentions. We are taking the power because of a gap in the law. Until now, there has been a small number of relatively isolated incidents involving suspected facilitation in UK territorial waters. However, those incidents illustrate a gap in the legislation. Border Force officers currently have no powers to act unless the vessel is also of customs interest. In those circumstances, they have to pass the information to immigration officers on land and monitor the vessel’s movements while it remains at sea.

We judge that that gap in the law needs to be addressed to reflect the difference between powers that could be exercised for customs purposes and powers that could be exercised for immigration purposes. It is an issue if the powers cannot be exercised in the context of a vessel that is considered to be smuggling people rather than contraband, given the risk that organised crime groups, as we are seeing elsewhere, may over time seek to smuggle in a different way. The purpose of the schedule is to be prepared and to have the right legislative framework in place to be able to respond to any such risk in UK territorial waters.

Amendments 230 to 235 seek

“To limit the maritime search powers under the Bill to the ship, the port and as conveniently as possible thereafter”.

The amendments raise concerns, as the hon. and learned Gentleman, the shadow Minister, and the hon. Member for Paisley and Renfrewshire North have highlighted, about whether the powers could be exercised anywhere on land. For ease, I will simply refer to the part of the schedule that deals with England and Wales, but I assure hon. Members that the same provisions equally apply, in certain other aspects of the schedule, in respect of waters adjacent to the coasts of Scotland and Northern Ireland.

The power to search in paragraph 3 of new schedule 4A only applies to a search of the ship, anyone on the ship and anything on the ship, as the hon. and learned Gentleman highlighted. The Bill does not limit where the power may be exercised in order to ensure that there are no gaps in the power. He was rightly probing and testing as to the intent of the term “elsewhere”. In part, it ensures that there is provision to arrest a person should they jump overboard to evade enforcement officers. Given the nature of the powers that we are seeking to provide, that could be entirely possible, whether they jump into the water or, if the vessel is in more inland waters, on to land. We need to be able to ensure that the provisions are operable in those circumstances. That will not be possible if the provision is limited to a ship or a port. I reassure the Committee that the test in paragraph 3(1) of new schedule 4A to the Immigration Act 1971 connects the exercise of the powers with suspicion regarding the ship. I hope that that connection may be helpful in giving an understanding of what we are trying to get at here.

[Keir Starmer]

This is in the nature of a probing intervention to ensure that I understand the Minister. The search is constrained by new paragraph 3(2) and I understand the reasoning, but there is no power of arrest in the paragraph; there is only a power of search. So sub-paragraph (8) would not help in the circumstance where someone jumps overboard and needs to be arrested. If someone jumped overboard, they could only be searched. I am probing because I do not quite understand the logic, but it may be that I am not quick enough.

[James Brokenshire]

That is connected to sub-paragraph (3), which states:

“The relevant officer may require the master of the ship, or any member of its crew, to take such action as is necessary for the purposes of sub-paragraph (2)(c).”

Obviously, the officer would require the ship to be taken to a port. That is connected to the ability to search, as the hon. and learned Gentleman has highlighted. There may be circumstances, for example, in which someone jumps off a ship and is rescued by officers where a search may be appropriate under the exercise of that power. We are trying to cover such circumstances. I recognise that he is fairly seeking to probe on that, and I hope my answer is helpful.

Amendments 239 to 244 would ensure that only the officers specified in the Bill can use the powers, and would remove the protection of officers from personal, criminal and civil liability. I will address those two points separately. The provision permitting powers to be exercised by accompanying officers reflects existing powers under other legislation—most notably, the powers recently considered by the House in the Modern Slavery Act 2015. The extension of powers to assistants also exists in general for those working alongside customs officers under section 8 of the Customs and Excise Management Act 1979.

In my opening comments I sought to explain the arrangement that Border Force officers have responsibility for revenue protection, as well as for the border, and they utilise those powers when they are on board cutters. We have therefore sought to ensure that there is no mismatch between customs powers and immigration powers. Other examples in the maritime context include paragraph 5 of schedule 3 to the Criminal Justice (International Co-operation) Act 1990, concerning powers to combat drug smuggling.

The reason why such powers may be given to assistants is not to permit untrained individuals to exercise those powers, but to ensure effective joint working with partner agencies that have at least a basic level of law enforcement training. The measure permits officers from partner organisations who may be working alongside enforcement officers, such as fisheries inspection officers, to assist immigration officers. It is important to emphasise the requirement that such persons must still be supervised.

On the protection of officers against civil and criminal liability, the measure extends only to personal liability; it does not prevent a claim for which an employer may be vicariously liable. When a court considers that officers have acted in good faith and that there were reasonable grounds for their actions, we think it is right from a public policy perspective that they are not held personally liable for carrying out their duties and acting in good faith. There are many other examples of where law enforcement officers are given equivalent protection. I understand that the principle has long been part of English law—prior to this sitting, the Solicitor General and I were discussing that it can be traced back to section 6 of the Constables Protection Act 1750, which I am assured remains in force today. Members may not have anticipated that they would be referring back to certain legislation in Committee, but the Solicitor General has come across the 1750 Act, which I underline.

With those reassurances, I hope that the hon. and learned Member for Holborn and St Pancras will recognise that the measure is not an extension of the law but builds on existing legislative practices and principles. I therefore ask him to reflect on what he fairly said are probing amendments to gain a better sense of our intent and the purpose and nature of schedule 8. I hope that he is minded to withdraw his amendment.

[Keir Starmer]

I am grateful to the Minister for those assurances. I wonder aloud how long that immunity provision, however long-standing it is, can survive. The idea that people are immune from criminal law in that way is hard to reconcile with later legislation, but that is a much bigger argument than the one we are having now. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 109, in schedule 8, page 114, line 17, leave out “detain” and insert “retain”.

This amendment and amendments 110 and 112 are minor drafting changes for consistency with language used elsewhere in the Schedule and have no substantive effect.

Amendment 110, in schedule 8, page 118, line 40, leave out “detain” and insert “retain”.

See the explanatory statement for amendment 109.

Amendment 111, in schedule 8, page 122, line 6, leave out “(in England and Wales or elsewhere)” and insert “in the United Kingdom”.

This amendment is a minor drafting change for consistency with the language used in the equivalent provisions for England, Wales and Scotland.

Amendment 112, in schedule 8, page 123, line 17, leave out “detain” and insert “retain”.—(James Brokenshire.)

See the explanatory statement for amendment 109.

Schedule 8, as amended, agreed to.

Clause 37 ordered to stand part of the Bill.

Clause 38

English language requirements for public sector workers

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

--- Later in debate ---

[Keir Starmer]

On the question of “indefinite”, surely the detention is indefinite in the sense that there is no definite limit to it. The detention might not be unending, but it is indefinite in the way that we all understand “indefinite”.

[James Brokenshire]

Indefinite detention implies detention that cannot be brought to an end. For reasons of bail and the relevant principles in common law, the detention has to be linked to the ability to remove.

If we look at the cohort likely to be in detention for longer, the vast majority are foreign national offenders. That is the reality we are dealing with. There might be challenges that we are working through on identification, so that they may get the relevant travel documentation, or they might take other measures to prevent their removal. There are a number of challenging policy issues in this area, but I underline the policy principles that exist in respect of why detention is there and why it is linked to removal. Equally, I underline the relevant safeguards.

Hon. Members might say that non-compliant cases could be added to the regulation that sets out cases where the 28-day limit does not apply, but the use of the detention power is increasingly focused on non-compliant individuals to ensure their removal. In reality, even if the clause was founded in that way, there would be little impact if non-compliant cases were added to the list.

I recognise what hon. Members have said about ending the detention of children for immigration purposes. I am proud that the Government have introduced measures to ensure that the routine detention of children under immigration powers is used only in very, very limited circumstances. Equally, we do not detain individuals for age-assessment purposes. In cases in which an individual is held in an immigration removal centre and doubts arise as to whether they are an adult, we aim to release them immediately into local authority care, pending an age assessment.

I recognise that we are discussing a controversial policy area, but I underline the fact that we are dealing with the details. There are a range of public policy views and objectives that need to be advanced, but ultimately there are clear safeguards in the system. We will continue to reflect carefully on the issues of vulnerability, but I hope that, given those assurances, the hon. Member for Sheffield Central is minded to withdraw the new clause.

--- Later in debate ---

[James Brokenshire]

On a point of order, Mr Owen. As this may be our last opportunity as a Committee to recognise your contribution to the Bill in ensuring that our consideration is in order and in adding to the good-natured spirit of our proceedings, may I, on behalf of the Committee, thank you for your chairmanship? We have very much appreciated your guidance and assistance, which has added to our consideration of the Bill.

[Keir Starmer]

On a point of order, Mr Owen. I endorse that point of order. Not only for the group the Minister spoke of but for those of us who have gone round this track for the first time, your help and assistance and that of the Clerks has been invaluable to each and all of us.

Immigration Bill (Thirteenth sitting)

Debate between James Brokenshire and Keir Starmer

Tuesday 10th November 2015 Public Bill Committees

[James Brokenshire]

I think the hon. Lady is confusing certain issues. As I have already indicated, certain obligations exist under schedule 3 and also under section 17 of the Children Act 1989. We are discussing in detail with local authorities the interrelationship between such backstop support powers and how the different regimes fit together. That needs to be done in the joined-up fashion of understanding that if families are here unlawfully, they could and should leave and there needs to be encouragement through the returns process to ensure that they do. It is in that considered way that we propose the provisions, although hon. Members may disagree with our approach. That is, however, the stance that we seek to take, given the factors I identified and the interrelationship with local authorities I indicated.

Let me turn to amendment 227, which seeks to set the level of the cash allowances given to asylum seekers at 60% of the income support rate for people aged over 25. That would raise the amount provided from £36.95 to £43.86 a week.

The cash allowance is only one element of the support package provided to ensure that asylum seekers are not left destitute. That package needs to be seen as a whole. Accommodation is provided free and comes fully furnished and equipped with bed linen, towels and kitchen utensils. Utilities such as gas, electricity and water are also provided free. Recipients receive free healthcare and schooling for their children. The cost of travel to appointments to pursue an asylum claim—to attend asylum interviews, appeal hearings and meet legal advisers, for example—is also provided separately.

[Keir Starmer]

Will the Minister confirm to members of the Committee who seek comfort from the fact that we have just discussed provisions that apply to asylum seekers who have exhausted their process, that we are now discussing something that applies to all asylum seekers, including, for example, a Syrian who has got to this country in the last few months by whatever means? I take into account what he said about accommodation, but in relation to the comments of the hon. Member for Glasgow North East, the rates in the package are £1.23 a week for toiletries and 69p for healthcare. Given the particular examples that she gave, which made people feel uncomfortable, perhaps Members would like to go to Boots this afternoon and see what they could get for that.

[James Brokenshire]

The hon. and learned Gentleman wrapped up two points. He said that the package would apply to Syrians applying for resettlement here, but that is a separate regime. [Interruption.] He used the pejorative term of Syrians, so it is important to understand the support provided through resettlement when refugee status is accepted, because then there would be entitlement to mainstream benefits. We are talking about the mechanism for those of all nationalities who have claimed asylum in the country but whose claims have not yet been determined.

[Keir Starmer]

The Minister will know that I deliberately did not give that example. I said a Syrian who had arrived in this country from Europe or somewhere—not on the package. Any Syrian who is now in Europe and arrives in this country not under the resettlement regime will come on to this regime. That is the example I was giving.

[James Brokenshire]

I am grateful to the hon. and learned Gentleman for that clarification, because he had not given that clarity initially and it is important to understand the different regimes that operate for those with refugee status and for someone who has come here and claimed asylum. It is helpful that he explained his intent. That is why I said what I did about how asylum support rates are intended to operate for all nationalities of people claiming asylum in this country.

I come on to the second point about the amount of cash, having already indicated to the Committee all the other support mechanisms provided to those seeking asylum fairly and appropriately. The cash amount is provided with reference to a specific legal test set out in section 95 of the Immigration and Asylum Act 1999. The allowance is there to cover what is described as “essential living needs”.

The Home Office reviews the level of the cash allowance each year but the way that review is conducted changed in 2014. Following a judicial review, the Home Office put in place a new assessment methodology designed to give full effect to the findings of and the valuable guidance given by the court. It is important to understand how the rates are set in the context of what the court said and the guidance that it provided. First, a careful assessment is made to identify all needs that are essential and not covered through some other part of the package.

The needs identified in this way are: sufficient food to eat healthily, adequate clothing, provision to cover toiletries, household cleaning items and non-prescription medicines, sufficient provision for travel and communications for everyday purposes and to maintain interpersonal relationships and a minimum level of participation in social, cultural and interpersonal relationships. That is a term of art and an essential need identified by the court. Having identified all these particular needs, an assessment is made of how much money is required to meet each of them. This is done through a mixture of market research into the cost of the particular items and analysis of Office for National Statistics data about expenditure on the items by people in the lowest 10% income group of the UK population. This approach resulted in the allowance for a single asylum seeker being set at £36.62 per week in 2014, rising to £36.95 per week from April 2015. In 2015 we also decided that providing £36.95 for every person in the household—in other words for the asylum seeker and each dependant—would be sufficient to cover the essential living needs of all family groups. This is because of the economies of scale available to large households and is an approach taken by other European countries as well.

I recognise that many organisations representing asylum seekers and children disagree with the changes, but none of these groups has provided detailed evidence to show that the findings of the review are wrong.

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[James Brokenshire]

The hon. Gentleman was seeking to impute that there was a preordained mindset to adjust everything down. I have already given him an example where there has been an adjustment up. It is that fair assessment, subject to reasonable adjustment, based on the twin tests of ONS data and market research data on costs, which produces the figure. I say to him again that concerns have been expressed by various groups representing asylum seekers and children, but none has provided detailed evidence to show that the findings of the review are wrong. We will continue to assess, we will hold a further review of the allowance levels for 2016 and we would welcome detailed evidence and submissions about the level of the allowance. That is the right forum to address any perception that the allowances are not adequate.

We also do not consider that seeking to apply this to a level under income support is appropriate. It is not referencing the essential living needs test. This was debated by the other place on 27 October, when a motion to annul the regulations that implemented the findings of the most recent review was rejected. I recognise that there are differences of view on this but, on this detailed analysis, on some of these specific items, I would welcome further submissions to show whether the evidence that has been presented to us needs further reflection. Obviously we would consider that in setting the levels for 2016, but I urge that the amendment be withdrawn.

[Keir Starmer]

The two amendments go to the heart of one of the most important provisions. On the withdrawal of support from certain categories, I will not rehearse the powerful argument showing that all the evidence says that this will not achieve the desired objective and in all likelihood will push people into destitution and exploitation. That is why it is such a fundamental issue.

A lot has been said already about the daily rates. It is true that the food and non-alcoholic drink rate is up from the ONS data to £24.96. That is just over £3.50 per day for the very many weeks and months that it takes for a decision to be made about someone who is seeking asylum and may have come from any number of countries, fleeing persecution. All the other rates that have been adjusted, have been adjusted down.

[James Brokenshire]

Not true.

[Keir Starmer]

All the others that have been adjusted have been adjusted down. Some have not been adjusted. I will happily take an intervention if I am wrong about that. Clothing and footwear has gone down from £4.62 to £2.51, and travel from £3.62 to £3. That is 45p or so a day for travel. I do not know in which city people are expected to live for these weeks or months, but travelling for 45p a day is not an easy task. There are not many bus fares that can be bought for that even in one direction. On those adjustments down, the question that my hon. Friend the Member for Sheffield Central put was not whether this was a preordained decision but whether that downward trend could be justified. That question was not answered.

The amendments go to the heart of this part of the Bill and I will press them to a vote.

Question put, That the amendment be made.

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[James Brokenshire]

I can tell the hon. Lady that 85% of cases are straightforward and we have a service standard of dealing with those within six months. We dealt with a big backlog earlier this year—that is why I make the point about the effort that has gone in. Many people in the asylum processing system will say that asylum processing is probably in as good a place now as it has been in for many years, but of course I look for further improvements; we do not sit back. Equally, it depends on some of the pressures in terms of changes or increases in the numbers of those who are claiming asylum. We are very vigilant in monitoring how we are dealing with this. I can say to the hon. Lady that 85% of cases are straightforward and that our service standard is to deal with those within six months. Obviously, it is difficult to know what proportion of the people in her constituency may be in the situation she describes; it is difficult to draw that parallel. However, I hope that it is helpful at least to set out the approach that we are taking and that balance in terms of how asylum claims are dealt with.

We judge that the current policy strikes the right balance. Asylum seekers are provided with support and accommodation, but if their asylum claims are undetermined for 12 months for reasons outside their control, they can apply for permission to work. We believe that that is a fair and reasonable policy that we should keep. For the reasons that I have outlined, we ask that the amendment be withdrawn.

[Keir Starmer]

The Minister puts forward a number of good reasons for the decisions to be made within six months and prays in aid the service standard, which is to be supported, but the real question is: how many cases are actually decided within the service standard? We all have examples of where they are not. We know that the number is roughly 3,600. I am sure that the Minister did not welcome the ombudsman’s report published this morning, or at least reported on this morning, about the very high level of complaints upheld by the ombudsman, particularly in relation to immigration decision making. That does not mean that things are not moving in the right direction, but it does mean that very many cases are not decided within the six-month period.

[James Brokenshire]

The point that I was making about the service standard for dealing with the 85% of cases that are straightforward was that that has been met. I do not know whether that is helpful to the hon. and learned Gentleman in relation to his point.

[Keir Starmer]

I am grateful to the Minister for that, but it still leaves outstanding the 3,600 cases in which people have not had their decision made within the six-month period. The Minister says that there is a concern that if there is a change in the current regime to a six-month regime, that may lead to adverse consequences, but as I understand it, that is simply unevidenced. Whatever research has been carried out in this area, it is unevidenced. It is a fear, but it is an unevidenced fear. The reason why I cited the EU provisions was not so much to argue that we should necessarily align ourselves with the EU position and should not take our own position as it was to say that it is much more difficult to make the argument that a six-month regime would operate as a pull factor if other countries are operating that regime at the moment.

[James Brokenshire]

Will the hon. and learned Gentleman accept that the evidence that has been cited is from prior to the current migration crisis and that many EU countries are reflecting on their support and other mechanisms for providing asylum, precisely because of a number of these factors?

[Keir Starmer]

I do accept that, although I think that anyone in this Committee would be hard-pressed to say that the migration crisis of this summer was linked in any way, shape or form to whether someone could work after six months or after 12 months.

[James Brokenshire]

The reason why I intervened on the hon. and learned Gentleman was that his hon. Friend the Member for Rotherham, I think, had alluded to the timing of the reports. The point that I was trying to get across—I will make it briefly in this intervention—was that, sadly, we do see people traffickers, through social media and other means, seeking to set out the position of certain member states and what people are entitled to and, in a very deliberate way, encouraging people to try to come to other European countries.

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[James Brokenshire]

Amendments 105 to 112 are technical corrections to the drafting of the Bill. I will provide a brief explanation.

The lead amendment makes minor drafting changes by omitting the unnecessary alterations to the conjunctions in section 25B(3) of the Immigration Act 1971. Amendment 106 makes a minor amendment to correct the reference to which paragraph requires amending. Amendment 107 ensures that immigration officers must seek authorisation from the Secretary of State before exercising the maritime powers in relation to a foreign ship, or a ship registered under the law of a relevant territory, within UK territorial waters adjacent to Northern Ireland. That aligns the provision with the equivalent provisions applicable to UK territorial waters adjacent to England, Wales and Scotland. Amendment 108 removes the superfluous definition of “home state” and has no substantive effect. Amendments 109, 110, 111 and 112 are all minor drafting changes to ensure consistency of language throughout the schedule.

Amendment 105 agreed to.

Amendments made: 106, in schedule 8, page 108, line 9, leave out “28A” and insert “28A(3)”.

This minor amendment substitutes “28A” for “28A(3)” to correct the reference to which paragraph requires amending.

Amendment 107, in schedule 8, page 109, line 26, after “before” insert “an immigration officer,”.—(James Brokenshire.)

This amendment ensures that immigration officers must seek authorisation from the Secretary of State prior to exercising the maritime powers in relation to a foreign ship or a ship registered under the law of a relevant territory, within UK territorial waters adjacent to Northern Ireland. This aligns the provision with the equivalent provisions applicable to UK territorial waters adjacent to England, Wales and Scotland.

[Keir Starmer]

I beg to move amendment 229, page 109, line 35, in schedule 8, at beginning insert—

‘( ) Hot pursuit can only be commenced when a ship is in United Kingdom waters.”

Probing amendment to provide the Minister with an opportunity to confirm that hot pursuit will only start when the ship is in territorial waters, as required by Article 111 of the UN Convention on the Law of the Sea.

The amendment is a probing one and, following our debate, we might not have to press it to a Division. There are provisions on hot pursuit in article 111 of the UN convention on the law of the sea. We tabled the amendment to seek assurance that the schedule, which is on maritime enforcement, is aligned with that international obligation, providing the Minister with the opportunity to confirm that hot pursuit will start only when a ship is in UK territorial waters. If that is the case, the provisions in the schedule will align with article 111 of the UN convention and the amendment is unnecessary.

[James Brokenshire]

The right of hot pursuit from territorial waters into international waters has long formed part of UK common law and reflects the provisions in article 111 of the UN convention. The Bill preserves the common law position by virtue of new section 28P(10) of the Immigration Act 1971, inserted by schedule 8. I can therefore confirm that under the maritime powers in the Bill, hot pursuit will commence only when a ship is in territorial or internal waters, as permitted by article 111 of the UN convention. In the light of that assurance, I hope the hon. and learned Gentleman is minded to withdraw the amendment.

[Keir Starmer]

I am, and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 108, in schedule 8, page 111, leave out lines 21 to 24.—(James Brokenshire.)

This amendment removes the superfluous definition of “home state” and has no substantive effect.

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[Keir Starmer]

I will deal with the amendments in the group together, as amendments 237 and 238 would simply apply the provisions of amendment 236 to Scotland and to Northern Ireland. Again, it may be that the Minister’s remarks mean that there is no need to press the amendment.

Our concern is that the powers in the schedule for immigration officers to detain or search those found on boats in UK territorial waters should not be used to push back asylum seekers arriving by boat. As things stand, claims for asylum can be made in UK territorial waters, and if made are dealt with in accordance with the appropriate procedures. There is a wealth of support for that remaining the position. The amendment is probing, and if the Committee is given an assurance on the issue I have raised, I may not need to cite that great wealth of support.

[James Brokenshire]

I will give a brief response to the hon. and learned Gentleman’s probing amendment. The powers in the Bill do not permit officers to turn vessels back. Under the power, vessels may be diverted only to a port in the UK. Upon arrival in the UK an individual wishing to claim asylum may do so and will be processed in the ordinary way. As is the case for all persons arriving in the UK, they will be subject to an immigration examination under the Immigration Act once they have arrived on land, and may also be detained under relevant provisions pending an immigration decision. If they are assessed as being an illegal entrant or attempted illegal entrant, they will be processed under paragraph 9 of schedule 2 to the 1971 Act, and removed accordingly.

[Keir Starmer]

I am grateful to the Minister for that assurance. What he has just said will appear on the record of the proceedings in Committee. In those circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Immigration Bill (Twelfth sitting)

Debate between James Brokenshire and Keir Starmer

Thursday 5th November 2015 Public Bill Committees

[James Brokenshire]

The hon. Gentleman, in his normal, sage way, has pre-empted me. I intend to address the 2005 pilot directly. I will explain to the Committee why we judge that the arrangements in schedule 6 are different and why they are appropriate. In some ways, we have learned from the provisions that applied under the previous Labour Government.

Let me return to my principal point about providing support for those whose appeal has been analysed by the court and who have, as the lawyers would say, exhausted their appeal rights in relation to asylum and article 8 and have not made further submissions—we will discuss a detailed amendment to schedule 6 that pertains to further submissions. We believe it is wrong in principle to provide support in those cases, because it sends the wrong message to people who do not require our protection and seek to exploit the system. It also undermines public confidence in our asylum system.

Under the current system, failed asylum-seeking families continue to receive Home Office support as though their asylum claim and any appeal had not failed. The onus is on the Home Office to demonstrate non-compliance with return arrangements for support to be ceased. We believe we need a better basis on which to engage with those families, with local authorities and others, and a process that secures more returns. Our judgment is that schedule 6 will support that aim. We should focus on supporting those who have not yet had a decision on their asylum claim and who may need our protection, not on those who the courts have agreed do not need our protection and should leave the UK, subject to certain caveats in relation to proposed new section 95A of the Immigration and Asylum Act 1999, which we will debate in detail.

Schedule 6 makes two key changes to the existing support framework. First, those who have children with them when their asylum claim and any appeal is rejected will no longer be treated as though they are still asylum seekers. They will cease to be eligible for support under section 95 of the 1999 Act. Secondly, section 4 of the 1999 Act will be repealed, and support will be provided to failed asylum seekers and any dependent children only if there is a genuine obstacle that prevents them from leaving the UK. I appreciate that those changes raise important issues, as our public consultation highlighted. We have provided members of the Committee with a copies of our response to the consultation and the policy equality statement on these measures. I look forward to discussing many of those issues when the Committee debates the amendments to schedule 6.

[Keir Starmer]

The Minister dealt with the issue of cost and said that money ought to be spent on other cases, and he has now moved on to children. A concern was expressed in evidence about the duties under the Children Act 1989. Has there been an assessment of the likely cost overall—not to the Home Office budget but to public funds—of bringing these provisions into effect? In other words, has there been an assessment of how many are likely to go to local authorities and what the cost will be?

[James Brokenshire]

The hon. and learned Gentleman will have, in his detailed way, seen the impact assessment, which gives the macro impact on cost savings. I would make the point—which I will underline in further comments—about the new burdens analysis that we will conduct with local authorities. I have been clear in all my discussions with local government and other partners that this is not about trying to move a cost from one budget to another.

We will come to the detailed provisions of the separate support under schedule 3 to the Nationality, Immigration and Asylum Act 2002 which local authorities may have a duty to fulfil under their human rights obligations. There is a separate mechanism that can apply and can fall on local authorities in those circumstances. It is precisely the work we are doing with local authorities to ensure an effective join-up between this arrangement and the separate schedule 3 arrangements which would apply to local authorities. I will come back to some of these points when discussing later amendments, because I know that some of the cost issues and minimum support requirements are further explored by them.

We have reflected carefully on what the consultation responses said about the experience of the 2005 pilot of the cessation of support for failed asylum seeker families under schedule 3 to the 2002 Act. We have taken account of that experience in providing, under this Immigration Bill, what we judge is a different approach.

First, under schedule 3 to the 2002 Act, the onus is on the Home Office to show that a family is not co-operating with arrangements for return. To qualify for support under new section 95A of the 1999 Act, as provided for by this Bill, the onus will be on the family to show that there is a genuine obstacle to their departure.

Secondly, the 2005 pilot involved a largely correspondence-based process for terminating support in family cases that had exhausted their rights of appeal in the 11 months prior to the commencement of the pilot, so some of the cases in the study were actually quite old. By contrast, the new approach will involve a managed process of engagement with the family, in tandem with the local authority, following the end of the appeal process, to discuss their situation and the consequences of not leaving the UK in circumstances where they can do so. Rather than this being a sudden change, it is part of a continuing process and dialogue with those families who will be affected.

Hon. Members will no doubt have noted that the transition provisions make it clear that this is about new cases, thus underlining that sense of a transition from appeal rights being exhausted and the cessation of potential support. No doubt we will get into the cooling-off period in moving from that arrangement to the cessation of support. That is something we are still reflecting on, on the basis of the submissions we received during the consultation. It is important to see this in that way: Home Office support will remain available if there is a genuine obstacle to the family leaving the UK.

Thirdly, we think circumstances have changed. It is now generally recognised that the taxpayer should not have to support illegal migrants who could leave the UK. We intend to work closely with partners in local government and elsewhere to achieve that outcome, because this is not simply about changing the law; rather, it is about some of the practical join-ups for local authorities. As I have reflected, some of the other regimes equally apply to local government.

We continue to consult with local government colleagues, in particular on the details of the new arrangements. I am grateful to the Local Government Association, the Association of Directors of Children’s Services, the No Recourse to Public Funds network and other colleagues for their continued engagement with the Home Office on these issues. All are clear that we want to reduce overall costs to the public purse and encourage and enable more migrants, without any lawful basis to remain here, to leave the UK in circumstances when they can do so.

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[James Brokenshire]

My hon. Friend’s point relates to my earlier point about confidence in the asylum system and ensuring that we are using public funds effectively and appropriately. The Committee may differ on that principal point, but I respect that and we will no doubt come to discuss it.

I return to the point that, for those who have had an asylum claim assessed and considered invalid by the court and who have not made further submissions, then unless there are obstacles that mean that they should not return, we say that, as a matter of policy, public funds should not remedy that. The remedy is that those people leave.

[Keir Starmer]

Will it not cost more if families disappear, as they did under the 2005 pilot, when 16 families dropped off the radar? I do not know whether they were ever picked up again. Does the idea that money can be saved and slipped into the Syrian refugee budget take families disappearing into account?

[James Brokenshire]

I was certainly not saying that money would transfer in that direct sense. As the hon. and learned Gentleman will know, we seek to provide support through the official development assistance that applies in the first year. That was why I was making a point about overall confidence in the asylum and immigration systems and in the rules being upheld. That is the broader issue.

I underline that we are continuing, with local government colleagues, to look at whether further provisions would assist in reducing costs, perhaps in respect of schedule 3 to the 2002 Act, which controls access to local authority social care for migrants without immigration status. We are listening carefully to what local authorities are telling us about the scope for simplifying and strengthening some provisions. Some of the processes are quite clunky and complicated, such as the separate human rights assessments that local authorities must undertake, so we are having discussions with local government about implementing a clear, streamlined process that still recognises existing human rights obligations. We need to understand that properly and appreciate how the asylum and immigration systems sit alongside each other so that safety nets operate effectively.

On the hon. and learned Gentleman’s point about people disappearing, this process is part of a continuum and is not a sudden arrangement. We will reflect further on the cooling-off period from indications being made and families being reminded of what will happen, which is currently 28 days. Discussions on such issues continue. We want families to be in no doubt. Clarity in the immigration system, in particular around assisted return, as we have debated previously, is really important to help people to make decisions.

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[Keir Starmer]

I am grateful to the Minister for his generosity in giving way. I understand his point about the policy objective and the rules on removal being complied with, but in circumstances when the desired objective is not achieved and when the family does not go and there are children, will the cost to the taxpayer go up or down as a result of the change?

[James Brokenshire]

The hon. and learned Gentleman is clearly thinking about some of the hypotheticals and the relationship with local government. Our regulatory impact assessment has given us the best assessment based on our analysis of the operation of the scheme in terms of the potential savings. It has therefore taken into account some of those detailed thoughts on whether this represents a transfer of a burden from one place to another. We continue to discuss that with local government, because it concerns the new burdens analysis. I believe that is the point the hon. and learned Gentleman is trying to make: what the new burden on local government might be as a consequence of these changes and how local government might see some issues arising. It is precisely on that detail that we are continuing our engagement with local government, in order to understand that as clearly as possible and to reassure local authorities that this is not about a budgetary transfer.

[Keir Starmer]

I am grateful to the Minister for allowing me to explore the matter in this iterative way. In order to make that assessment of cost, there must be some analysis of how many families will not leave as a result but will, in fact, stay. It is not possible to work out the cost to local authorities, however streamlined and whatever the discussions, without having in mind an assessment of how many families will not leave and will have to be provided for. What is that number and percentage?

[James Brokenshire]

Obviously we are looking at schedule 6 provisions and the changes under the new section 95A support mechanism within schedule 6. The regulatory impact assessment sets out our best analysis of the overall savings to the public purse, and it would be invidious for me to try to provide percentage assumption rates.

This is about departures and encouraging people to leave. It is also about section 95A support where there are barriers to removal. That is likely to be where there is no documentation or difficulty in obtaining it to facilitate departure, or medical issues. Let us not forget that, in conducting its duties, the Home Office will have obligations under section 55 of the Borders, Citizenship and Immigration Act 2009 which it will need to factor in when taking decisions.

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[James Brokenshire]

No. As always with legislation, we have to have it in place and, as a result, that sometimes provokes further discussion. We have been running a consultation, which we published earlier this week, and the hon. Lady will find in it the response and the feedback, as well as some of the points that we have said we will reflect on further. That is the right and appropriate way in which to deal with the matter. We judge the provisions to be appropriate to the policy intent that I have outlined, so the clause should stand part of the Bill.

[Keir Starmer]

The Minister rightly makes the point that if there are rules, they should be complied with, and that there is a public interest in ensuring that rules are complied with. I concur with that. He said that another objective behind the measure is to facilitate removal, according to the rules. That is the objective, but one of the concerns about the clause is that all the evidence suggests that that objective will not be fulfilled.

I will turn first to the 2005 pilot and then address the Minister’s points about what is in the Bill being different. The pilot, under the existing scheme, involved 116 families, and there were two reports or evaluations, one published in 2006 and the other in 2007. It is worth running through some of the numbers, because they show a lot of the causes of concern.

The 2006 evaluation, published by the Refugee Council and Refugee Action, found that of the 116 families, only one left the country as a result of the pilot under section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, while three signed up for voluntary return and another 12 took steps to obtain travel documents. By contrast, 32 families—I think I said 16 earlier—went underground, without support, housing or access to health or welfare services. That was the impact. Nine families were also removed from the pilot because their cases were reviewed as part of the process and it was found that their claims should not have been refused. Many of the families had serious health and mental health problems. The 2006 review therefore found the approach in the pilot to be wholly counterproductive, even for the Government’s own objective.

The Home Office review was published a year or so later, in 2007, and concluded:

“In the form piloted section 9 did not significantly influence behaviour in favour of cooperating with removal—although there was some increase in the number of applications made for travel documents. This suggests that the section 9 provision should not be seen as a universal tool to encourage departure in every case.”

The scheme has been rarely if ever used since, because it was considered a policy failure, but now that failure is to become the norm under the provisions of the Bill. The Minister said that in the Government’s judgment there was such a difference between the new scheme and the one piloted in 2005 that the results of the pilot were unlikely to be repeated. He gave three reasons. First, the onus is now on the applicant and not on the Home Office to prove or disprove, as the case may be, the obstacle to return. I will hear whatever the Minister has to say on that, but I am not sure that that is a reason. It is a difference between the two schemes, but why that difference makes it more likely that people will leave, rather than not leave, as in 2005, he will have to enlighten me about.

Secondly, the old scheme was correspondence-based, but the new one is a managed process involving contemporary decisions. I can see that that makes a difference and it might have some impact, but the results of the pilot were so profoundly claimed by pretty well everyone to be a complete failure that it is hard to see that that difference will be the silver bullet.

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[James Brokenshire]

Let me respond to the points raised in the debate. I want to underline the change in the nature of administration in the immigration system which has taken place. We scrapped the UK Border Agency and we have now established separate commands: UK Visas and Immigration, which processes asylum and other visa claims, Immigration Enforcement, and Border Force.

The proposals I have outlined are about embedding the work with local authorities. We are working more closely with local authority colleagues, drawing on their experience and ours of effective family engagement. In particular, that work will build on our existing family returns process, in which a dedicated family engagement manager works directly with the family. From 1 April to 2 October, the process achieved the return of 377 families. The point I therefore make to the hon. and learned Gentleman—perhaps this is why he did not grasp my third point, on the public policy objective—is about the alignment between activity in local and central Government, with that shared endeavour.

In many ways, that takes us back to the point made by the hon. Member for South Shields about these measures simply passing the cost of supporting destitute failed asylum seekers and their families on to local authorities. The proposals have been carefully framed to avoid that. The Home Office has consulted local authorities on the proposals and will continue to do so. There is no general obligation on local authorities to accommodate illegal migrants who intentionally make themselves destitute by refusing to leave the UK when it is clear that they can. None the less, we are considering whether it might be necessary or helpful to clarify that, perhaps in schedule 3 to the Nationality, Immigration and Asylum Act 2002.

Schedule 3 to the 2002 Act provides that, across the UK, a range of local authority-administered welfare provisions are generally unavailable to failed asylum seekers and their families who remain in the UK unlawfully. It enables such support to be provided where necessary to avoid a breach of a person’s human rights, but such a breach will not generally arise if the person or family can leave the UK. We are working with local government on precisely that interface and whether further clarification may be helpful.

Let me provide further amplification of what I have said about the impact assessment. It currently assumes that 10% to 20% of individuals who lose Home Office support under schedule 6 may move on to local authority support, pending the outcome of a further non-asylum, article 8-based application to the Home Office. We have factored in a figure in relation to that. The figure will be reviewed as part of the “no new burdens” analysis, but as I have said, the legislation has been framed to avoid that. We have considered that as part of the impact assessment. Although the hon. Lady suggested the figure may be an underestimate, our judgment is that we have undertaken the best assessment and have carefully factored in some of those issues.

[Keir Starmer]

I think the Minister may be moving on from the question of what impacts on the minds of individuals and their families. In the end, whether the Government have aligned or realigned with local authorities or are working well with them is not the central question. The central question is: what operates on the minds of these individuals that improves the chances they will leave in circumstances where, in the past, they have not?

As I understand it, the 2005 pilot was a failure. The family returns policy, by contrast, is thought to have been successful, but that scheme runs under the current support regime. Rather than introducing an element that has failed in the past, would it not be far better to simply put the focus on improving the family returns process—in other words, to focus on what persuades people to go? We have a scheme that seems to be working pretty well, so we should focus on that and make it work even better. How does taking away support help to improve the scheme running at the moment?

[James Brokenshire]

I have two points for the hon. and learned Gentleman. The first comes back to my point about administration and public policy and aligning local and central Government to give families a consistent and clear message about the likely outcomes. This scheme will start before the cessation of support, and we have underlined that. A clear message is important in order to ensure that families understand what is likely to happen to them, and consistency is being provided by both the Home Office and local government.

Secondly, the hon. and learned Gentleman rightly touched on issues with assisted voluntary return and on family returns. This is about both elements combined. Assisted voluntary return for families is a scheme for families comprising a maximum of two adult parents and at least one child. Families who leave the UK under that scheme qualify for support in the form of advice and financial assistance both pre and post-departure, help with travel arrangements, medical assistance and support following arrival in the country of return.

From January, the assisted voluntary return programme will be administered directly by the Home Office, which we judge will enable us to work closely with local authorities and other partners to deploy the scheme more flexibly. In particular, we will be able to ensure that the scheme is targeted at and promoted effectively for newly appeal rights-exhausted families as part of a focused engagement with them about the available options and the consequences of not accepting the help and advice available. Those factors, together, respond to the hon. and learned Gentleman’s point about what is likely to change behaviour, and we judge that they are the right way forward to meet the underlying policy objective.

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

--- Later in debate ---

[James Brokenshire]

Obviously we have existing arrangements under sections 95 and 4 of the Immigration and Asylum Act 1999. We are moving towards a different arrangement under proposed new section 95A, which will apply where there is a genuine obstacle to departure. To be clear, that will be defined in regulations. We expect that obstacle to be either the lack of necessary documentation or a medical reason. Of course, the person will need to show that they are making reasonable steps to obtain the relevant documentation. The Bill does not provide a right of appeal against the decision that no such obstacles exist because that should be a straightforward matter of fact for which a statutory right of appeal is not needed.

[Keir Starmer]

Will the Minister give way?

[James Brokenshire]

Before I give way to the hon. and learned Gentleman, I want to return to the issue of standards and Home Office decision making. I think the hon. Member for Rotherham said that her figures were from 2011. I point to the report of the previous independent chief inspector of borders and immigration, John Vine. I do not think anyone on the Committee would be backwards in coming forwards to identify weaknesses in the system and to expose matters of concern to him. It is worth highlighting his report of July 2014—a later period than that of some of the statistics that have been cited. He conducted an investigation of the whole system of asylum support. It is a long report, but the “positive findings” section of the executive summary noted:

“We found that the decision to grant or refuse asylum support was reasonable in most of the cases we sampled (193 cases out of the 215 cases—90%). We saw many examples of good practice, including staff taking extra steps to ensure that they made the right decision first time.”

He continued:

“In cases where applicants were refused support, we found that in 92 of 103 cases (89%) the decisions made by Home Office staff were reasonable. This was a good performance. Additionally, we found that of 12 cases where an appeal was lodged, only two (17%) were allowed by the First-Tier Tribunal. This is lower than the overall allowed appeal rate for asylum support refusals or terminations.”

The system has been characterised as not operating well and, in fairness to the Committee, it is important that I put that report on the record.

We always look for improvement, which is why we changed the system. We have separate directorates looking at different aspects so that we can hold to account and have better clarity of focus and attention. I will always challenge the relevant directors general to achieve that sense of continued improvement, but it is important to contextualise.

[Keir Starmer]

I want to take the Minister back to the question that my hon. Friend the Member for Sheffield Central asked about the fairness of removing the right of appeal. The Minister’s response was that, equally, we have to be fair to those who play by the rules and make their applications properly. What about the failed asylum seeker who establishes a genuine obstacle and takes on the onus? What happens if that is accepted but the assessment of whether he or she needs support—whether he or she is destitute—is wrong? He or she has done all they can and accepted the burden, but the assessment of whether they need support is wrong. The Red Cross told us that there are a number of cases where that is precisely the situation. The Red Cross often supplies a report, and it is a dead cert winner on appeal. Why is it fair to that person to remove their right to appeal when they will otherwise be destitute?

[James Brokenshire]

The issues that we are dealing with are specific matters of fact, and it remains open to the individual concerned to draw their circumstances to the Home Office’s attention. I take the hon. and learned Gentleman back to how we intend to operate these arrangements. We are not doing this by correspondence; it is being worked through as part of an overall process towards the removal of that individual. The judgment has effectively been taken, and contact is therefore being maintained with the individual, so it is more of the joined-up approach on which I have already responded. That is why, in our judgment, it is a question of looking at the simple elements and at what will be the barriers to removal.

--- Later in debate ---

[James Brokenshire]

I appreciate your direction, Mr Owen, but I think that the history has some relevance to how we administer these rules and requirements and some of the evidence that has been adduced to the Committee. I have tried to bring us into the here and now with what these provisions are intended to do and, through reference to the ICI’s report, to give further clarity on the focus attached to this matter and the decision-making processes. I recognise that this debate is primarily about the rights of appeal. In many ways, we have strayed quite widely, but I appreciate that there are strong feelings on this issue. I respect that, and the House should be able to allow for lively and robust debate where there are differences of opinion. The debate has been helpful, I am sure. Obviously it will be a matter for you, Mr Owen, as to whether we have a subsequent schedule 6 stand part debate, given the wider discussions. I understand that there is a point of difference on some of the principles and I respect that difference. Obviously it will ultimately be for the Committee to determine the decision in relation to the amendment.

[Keir Starmer]

We should all support the measures to improve the decision making. It is good that decisions are improving, and if the success rate is going up in the way suggested in the latest statement, we should put it on the record that we support that; that is a good thing. But is there a target or expectation for right decisions? In other words, is there a target of 90% right or 95% right? What is the threshold? What is the level that the Home Office considers good enough to remove the right of appeal?

[James Brokenshire]

I think the hon. and learned Gentleman is seeking to frame this in a slightly different way. The figures that I referred to related to the system as was. Obviously we are contemplating changes. The point I have made to the Committee is about the nature of the decisions—the very fact-based approach that in our judgment should be clear as to whether there are those barriers to removal. It is on that basis that we judge the formal right of appeal. That is not to say that the person would not make representations to the Home Office—or, through the regular contact that we would have, that assessment could be made—but it is on that basis that we have formed that judgment.

--- Later in debate ---

[James Brokenshire]

I hope to be brief in explaining this group of amendments. Amendments 96 to 99 are all minor and technical amendment relating to the repeal by schedule 6 of section 4 of the Immigration and Asylum Act 1999. Amendments 96 and 99 relate specifically to the repeal of section 43 of the Immigration, Asylum and Nationality Act 2006, which cross-relates to section 4 and tenancies granted to provide accommodation under section 4 powers. Amendment 98 is also linked to the repeal of section 4 of the 1999 Act. Amendment 97 is also a technical and minor provision. The term “claim for asylum” no longer appears in part 6 of the Immigration and Asylum Act 1999, so the same change is needed in respect of section 141 of the 1999 Act.

Amendment 101 relates to persons supported under section 4 of the Immigration and Asylum Act 1999 when the new arrangements under schedule 6 take effect. Those persons will continue to be supported under section 4 by transitional arrangements. Section 4 support currently consists of accommodation and a weekly non-cash allowance to buy food and other essential items. The allowance is provided through an Azure card that can be used at supermarkets to purchase necessary items. There are no current plans to change those arrangements, but amendment 101 gives the flexibility to do so in future, subject to parliamentary approval of changes in regulation. Such a change might, for example, be appropriate if the numbers supported under section 4 decreased to a point at which the costs of administrating the Azure card outweighed the benefits.

That leaves amendments 100 and 102 to 104, which are minor and technical and relate to those who will remain supported under either section 4 or section 95 of the 1999 Act under transitional arrangements. The amendments will ensure that future and current dependants of those persons may be supported under the provisions. That will mean, for example, that a child born to a person already in receipt of support under section 4 or section 95 of the 1999 Act under the transitional arrangements will also be able to be supported under those arrangements.

Amendment 96 agreed to.

[Keir Starmer]

I beg to move amendment 223, schedule 6, page 91, line 7, at end insert—

‘(2A) Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (withholding and withdrawal of support) is amended as follows.

(a) in paragraph 6(1), after “person” insert “who entered the United Kingdom as an adult”

(b) in paragraph 7, after “person” insert “who entered the United Kingdom as an adult””

To ensure that all care leavers—including young asylum-seekers and migrants who came to the UK as children—are given the support they need while they are in the UK by amending Schedule 3 of the Nationality, Immigration and Asylum Act 2002 so it does not apply to people who initially came to the UK as children. It will not create an automatic right to support but make sure that a young person is not discriminated against on the basis of his or her immigration status.

I can deal with this amendment shortly. The intention is to ensure that all care leavers, including young asylum seekers and migrants who come to the UK as children, are given the support they need while they are in the UK by amending schedule 3 to the Nationality, Immigration and Asylum Act 2002 so that it would not apply to people who initially came to the UK as children. The amendment would not create a right to support but would ensure that a young person was not treated differently on the basis of his or her immigration status.

I will come to the nub of what sits behind the amendment. For adults, support continues under schedule 3 to the 2002 Act until the individual fails to comply with removal directions, whereas support can be withdrawn for young people if they are found to be unlawfully in the UK but have not been served with removal directions. There has been criticism of the impact of schedule 3 by the Joint Committee on Human Rights and the Office of the Children’s Commissioner. The Refugee Children’s Consortium has also expressed concern about it. This is a narrow but important point.

[Anne McLaughlin]

I am going to speak very slowly and clearly. For many years, this country and other countries have struggled to support children who are leaving the care system. It has been well documented that those children’s life chances are measurably lower than those who do not go through the care system. Of course, various Governments have taken different measures to address that issue over time. When it comes to asylum seekers, however, we have a situation where children who are even more vulnerable find themselves destitute and without proper legal support when their appeal rights are exhausted, despite growing evidence that approximately 3,000 unaccompanied children come to the UK each year. This is another example of immigration legislation not keeping pace with the legislation protecting the rights of children and young people who are in our communities already but are no longer being supported by the Home Office.

We know that destitution forces young people into grave situations, some of which will be made worse by the Bill. Exploitation in all its forms, homelessness and ill health all follow on from the state turning its back on a desperate and isolated young person who has left care. It is worth highlighting an example given by the Children’s Society of a torture survivor from Iran who came to the UK aged 17. His initial claim was rejected and he went without legal representation for his appeal. Once that, too, was rejected, his support from children’s services was cut off and he was made homeless. He lost the support of the counsellor who had been helping him to deal with the trauma of the torture he had suffered. His health deteriorated further as a consequence of sleeping on the streets. I always find it useful to try to put myself in someone else’s shoes, and I think that sleeping on the streets for one night would be enough to finish most of us off. The good news is that he then received support from a charity and a fresh solicitor. His new claim was successful and he was granted leave to remain. His life was on course to be so much worse than I imagine it is now he has that support.

Amendment 223 is a sensible measure that would provide some protection for asylum seekers who have been in the care system and who are, by their very nature, among the most vulnerable in our society. I feel confident and hopeful that the Minister will support it.

Immigration Bill (Ninth sitting)

Debate between James Brokenshire and Keir Starmer

Tuesday 3rd November 2015 Public Bill Committees

[James Brokenshire]

Welcome back to the Chair, Mr Owen. Amendment 69 clarifies how a landlord may serve on tenants a notice terminating a tenancy. It provides that the notice may be delivered to the tenant or tenants directly—in other words, given to them by hand—left at the property, sent through the post to the property or delivered in any other prescribed manner. The clarification puts beyond doubt what constitutes effective service of the notice. I am pleased that in its evidence to the Committee Crisis welcomed the amendment as providing greater clarity. It ensures that, in circumstances where the illegal migrants choose to leave a property of their own accord once a Home Office notice has been issued, the landlord is able to use the powers in the Bill to recover his or her property at the end of the 28-day notice period and re-let it to someone with a legal right to occupy it. I note that the amendment has been welcomed outside the Committee.

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

Is it envisaged that the regulations that refer to electronic means will provide for notice to be served by email, for example?

[James Brokenshire]

The reference to possible future prescription in regulations regarding electronic means covers email. The wording is understood as referring to some means of service of documentation, and we give it that emphasis. I was about to say that the amendment future-proofs the provision—I think that the hon. and learned Gentleman took account of that. It enables the Government to introduce new methods of serving notice on tenants—email, for example—should such arrangements for dealing with tenancy agreements become more commonplace.

Amendment 15 ensures that a landlord can engage the powers of eviction in new section 33D only if they have a Home Office notice in respect of all the occupants. In the absence of such a notice a landlord cannot rely on the provisions in that new section.

Amendment 16 changes the definition of “occupier” of a rented property in respect of action taken to evict. New section 33D(7) provides that occupiers shall be taken to be tenants, named occupants on the tenancy agreement and others who the landlord, through reasonable inquiries, comes to know as living at the property. Illegal immigrant tenants may, however, choose not to co-operate with the landlord’s inquiries about other occupants and, indeed, bring in another occupant who is lawfully in the UK to frustrate eviction. Such occupants may then accuse the landlord of unlawful eviction. The amendment provides that a landlord may pursue eviction on the basis of who they know to be occupying the property, including where that knowledge has been established through inquiries with the tenant or tenants.

Amendment 69 agreed to.

Amendment proposed: 87, in clause 13, page 11, line 33, at end insert—

“(6A) A landlord does not commit an offence under s33A of this Act during the period of 28 days specified in subsection 4.”

To protect a landlord/landlady from prosecution for renting to a person without a right to rent during the period for which they are prohibited from evicting the tenant under subsection 33D(4).—(Keir Starmer.)

Question put, That the amendment be made.

--- Later in debate ---

[Keir Starmer]

I am concerned about that provision but, in fairness to the Minister, I think there is a relationship between that and the amendment that he moved earlier this morning. I think that was the effect of the amendment he moved, so would he please clarify that—in other words, that the notice applies to all the occupants? If I am right about that, I hope it does not detract from the other points I am making. I am trying to make them powerfully because this is an important point of principle. The Committee needs to know what it is doing if it votes for such a provision, which is an historic first.

[James Brokenshire]

I note the hon. and learned Gentleman’s contribution. I will come later to the detailed points he has highlighted about rights of appeal and so on.

It might be helpful to set out the basis and background to the provisions. We recognise that the vast majority of landlords are diligent in their responsibilities regarding housing and immigration legislation. With the planned roll-out of the right to rent scheme, we wanted to help them more easily to evict illegal migrants through the mechanism outlined, the Home Office notice.

The hon. Member for Sheffield Central highlighted the technical point about the notice having to specify all occupiers of the premises, and that has been dealt with, as the hon. and learned Member for Holborn and St Pancras, in fairness to him, indicated in his contribution. I hope that is helpful on that narrow point.

Proposed new section 33D of the Immigration Act 2014 would provide a new power for landlords to terminate a residential tenancy agreement if the Secretary of State has issued one or more notices to the landlord naming all occupiers of the property and identifying all occupiers disqualified from renting as a result of their immigration status. To do that, the landlord must give written notice to all the tenants, specifying the date at which the agreement will end, at least 28 days after the written notice has been given. The notice is to be treated as a notice to quit, where such notice would otherwise be required to end a tenancy and is enforceable as if it were an order of the High Court, as the hon. and learned Gentleman said. That allows a landlord to engage High Court enforcement officers to evict occupiers in the event that they do not leave peacefully of their own accord. The minimum 28-day notice period gives an opportunity for illegal migrants to make arrangements to leave the UK. A landlord does not need to obtain a possession order from the county court in order to seek enforcement of the notice.

New section 33E provides for and signposts court eviction routes, which should be used in the case of a mixed household, where some occupiers are disqualified from renting as a result of their immigration status and others are not. That is the distinction that is drawn between the two new sections. To be fair to the hon. Member for Sheffield Central, if there were no mechanism to provide that, there would be further understandable concerns about people who have the right to rent in those circumstances. That is the intent of new section 33E.

The hon. and learned Member for Holborn and St Pancras highlighted what he considers an inappropriate reversal of the law. I would say to him that this is about people who do not have the right to be in the country. I will come on to what happens next and the manner in which the Home Office would exercise its duties. Ultimately, it is a parallel provision to other measures in the Bill to ensure that residential properties that are let are provided to people who have the lawful right to be in the country, rather than those who do not. The mechanism proposed by clause 13 applies where someone has been identified by the Home Office as not having that right. In other words, the mechanism does not allow someone wantonly to assert that; it has to be grounded by the notice from the Home Office.

[Keir Starmer]

Will the Minister give way?

[James Brokenshire]

I was going to come on to the hon. and learned Gentleman’s points about legal challenges, which may be helpful. There are two elements to that. If the Home Office notice is incorrect, it can be challenged by judicial review, but if the conditions for eviction are not satisfied, my clear understanding is that injunctive relief may be available in the county court. I refer to the distinction between whether the notice was lawfully issued and whether a landlord simply made that assertion, not on the basis of the notice, to try to rely on the provisions.

I can see two potential lines of challenge, which I think is what the hon. and learned Gentleman was seeking for me to elucidate. There is a right of challenge and the individuals concerned can also contact the Home Office to challenge the notice directly. There are routes available when an incorrect notice has been served, although I am very happy to give way to the hon. and learned Gentleman on whether I have clarified the questions he posed.

[Keir Starmer]

I am grateful to the Minister for giving way. On the first point, although I accept that the process is similar to the right to rent, in that it is the Secretary of State who makes the decision and serves a notice, the Minister must recognise that there is a fundamental difference between not letting premises to someone in the first place and turning them out on to the street. There is a fundamental difference between those two actions. Turning people out on to the streets who may have been living in the premises for years with their families is fundamentally different from saying that they cannot rent premises from tomorrow or next week or whenever.

[James Brokenshire]

The hon. and learned Gentleman is right to make the distinction, which is why the decision on whether a notice should be served has to be triggered by the Secretary of State, with all the duties and responsibilities that the Secretary of State holds. It is important to underline that because the Home Office will not invoke the eviction process or serve notices until a full consideration of family circumstances has been undertaken. Families who have initial application claims for international protection or human rights contentions will not fall subject to these proposals until their cases have been finally determined. That includes the conclusion of any appeal and, in most circumstances, any other outstanding legal challenges. Although the families will be given warnings throughout the eviction process that it may be invoked, they will be encouraged to make a case on why these measures are not appropriate to them.

The Home Office will consider the circumstances of each member of the family. Eviction will generally be inappropriate where there are existing medical conditions or specific care needs evident, and eviction may mean that a local authority is placed under a duty to remedy the loss of accommodation. There will also be cases where invoking eviction is considered inappropriate. These will be cases where the family involved is considered to have recognised barriers to returning home. These instances can include no viable route of return to their home country, difficulties in securing travel documents or in ensuring that their home country will accept the family’s return, and medical or health conditions that make it difficult for a family to return home.

The intent of the issuance of the notice is that the Home Office will have gone through that process. It is only at the end of the process of examination that the Home Office would seek to issue a notice to allow the process contemplated in clause 13 to operate. That is the approach the Government will take in the operation of this provision before getting to the point that the hon. and learned Gentleman elucidated.

[Keir Starmer]

I understand and recognise the considerations that the Home Office will have to give to any particular case, but it will make mistakes. There will be errors. There will be information that was perhaps not before the decision maker that should have been. Everybody understands that position. In an ordinary, sensible system, there would be a simple right of appeal to correct those errors, which in these sorts of cases can range up to about 30%.

What is the justification and the thinking behind going the long route of judicial review at the High Court rather than a much simpler appeal route? I accept the Minister’s point about injunctive relief, but that is neither here nor there. That is where a landlord does not have a proper notice and is not doing what he or she is entitled to do. That was not the position I was aiming at. Why is it necessary, given that there is an automatic right of possession, to remove the court from the process and to go back to self-help in this small group of cases? What is the necessity for that? The landlord goes through the process and gets possession from the court almost automatically, unless it is challenged. What is the justification for the long route—which will be costly—and for removing the court?

[James Brokenshire]

I go back to the principle of ensuring that when properties are occupied by tenants who have no lawful right to be in this country, there is a speedy process, as part of the removals process, to ensure that those individuals can be evicted. That mechanism is therefore in place as part of the removal process, in order to assist with that removal. That is the important point to understand: that is the group of people that we are talking about. There is also a process in cases where, for example, someone has left a property and the landlord wishes to bring matters to a formal conclusion as well, and notification has been given from the Home Office. The Bill provides a speedy mechanism to allow that.

In respect of the hon. and learned Gentleman’s key point about how this provision will lead to violence, violent eviction will remain an offence under the Criminal Law Act 1977. It is important to recognise that that would remain in place in this context.

[Keir Starmer]

I see the Solicitor General nodding his head. Is it his proposition that a landlord will not be allowed to use reasonable force to evict a family who will not physically get out of the door? That is not an offence.

[James Brokenshire]

The hon. and learned Gentleman has already highlighted the avenue that is available to the landlord in terms of relief that is provided by virtue of the order being from the High Court. That mechanism is therefore available to landlords seeking removal if that cannot be achieved by peaceable means. That is why I made the point that the Criminal Law Act 1977 remains in place.

In that respect there is also the issue of children, and I am aware that what the Secretary of State will do when these duties are undertaken has been of concern. We would not give an undertaking that a family with children will never be evicted under any circumstances. As I have already indicated, a family will not be subject to eviction if there are insuperable barriers to their returning to their home country. Families in private rented accommodation are unlikely to be destitute if they are renting in the first place, but at every stage in the discharge of functions relating to the family returns process and when issuing a notice in respect of a child who would be disqualified from renting, regard will be had to the need to safeguard and promote the welfare of children in accordance with the duty in section 55 of the Borders, Citizenship and Immigration Act 2009.

Again, I underline some of the safeguards which we already have within the family returns process. We have a family returns panel that examines the mechanisms and routes that are used to seek a removal of a family with children from the UK. The panel looks at the removal strategy; in essence, as moves are made towards deportation, the panel can and does comment on the removal approach. Equally, there are mechanisms in the context of section 55 that provide safeguards, as well as the practical operational steps that are embodied in the way in which immigration enforcement conducts its duties when removing family groups which, obviously, involve children.

--- Later in debate ---

[Keir Starmer]

We debated the clause when we debated the Government amendments and the amendment to make special provision for children. That has been dealt with, so I will say little more than this: if the clause is agreed, it will provide a mandatory ground for eviction in cases involving children, older people, those with mental health issues and so on.

[James Brokenshire]

I think all I will do in response is amplify some of the points I raised in the previous debate on notices by the Secretary of State and the factors that he or she would take into consideration as part of the removals process. I indicated that medical issues may be a factor that he or she can take into account when determining whether to issue a notice. The clause is part of that process and builds on the debate we have had.

Question put and agreed to.

Clause 14, as amended, accordingly ordered to stand part of the Bill.

Clause 15

Extension to Wales, Scotland and Northern Ireland

--- Later in debate ---

[James Brokenshire]

Clause 15 permits the Secretary of State to make provision that has a similar effect to the residential tenancy provisions in relation to Wales, Scotland and Northern Ireland, where different housing legislation applies. The intent behind these measures is to restrict the access that illegal migrants have to the private rented sector and, as such, they are not within devolved competence, as per the debate we have just had on the amendments. The intention is to extend the residential tenancy provision UK-wide. The clause specifies that regulations made under it may make provision that has a similar effect to any of the residential tenancy provisions in housing legislation in Wales, Scotland and Northern Ireland. The regulations may amend, repeal or revoke any enactment, including enactments contained in legislation passed by the devolved legislatures. They may confer functions on any person. However, they may not confer functions on Scottish or Welsh Ministers or the Northern Ireland Executive.

New housing legislation has been introduced in both Wales and Scotland that may come into force in advance of these provisions. As the application of these provisions will necessitate an amendment to Welsh, Scottish and Northern Irish legislation, there will need to be further liaison before the provisions can be commenced UK-wide. The intention is for the residential tenancy provisions to be brought into force in England first and in Wales, Scotland and Northern Ireland at a later date.

I assure Opposition Members that discussions with Wales, Scotland and Northern Ireland have already begun. We intend to take into consideration the housing Bills that the Scottish and Welsh Governments are progressing through scrutiny, and therefore continued engagement will take place in respect of the implementation of the regulations and the mechanism as set out in clause 15.

[Keir Starmer]

I do not want to waste the Committee’s time, but want formally to indicate that I do not intend to press new clause 12.

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

Immigration Bill (Tenth sitting)

Debate between James Brokenshire and Keir Starmer

Tuesday 3rd November 2015 Public Bill Committees

[James Brokenshire]

The tone the Committee has adopted towards the measures in the Bill has been that they should be firm but fair. That is the approach that I have sought to provide. Yes, this is about sending a clear message that those who have no right to be in the country should leave, and we will support and facilitate that. With regard to the specific provision, it is not a pejorative term. The term immigration bail is already used and I have sought to distinguish it from criminal bail. That is understood in respect of the differences in the system.

The hon. Member for Paisley and Renfrewshire North was right that people who might be subject to an Immigration Act might not have committed a criminal offence. Detention can be and is used properly for the removal of someone who does not have the right to be in the country to their home country. Bail may be appropriate if it is determined that the principles that underpin detention—often referred to as the Hardial Singh principles—are not adhered to. In such circumstances, bail or continued detention may not be appropriate.

It is understood in that context, rather than having any negative sense. I certainly would not wish to communicate to the Committee—and I do not think I have—any negative approach or term by the use of the word bail in the context of this provision. I do understand the sentiment and the point made by hon. Members across the Committee. With that clarity of intent and approach towards the provisions, I hope that the hon. and learned Member for Holborn and St Pancras will withdraw the amendment.

[Keir Starmer]

The Minister has been very clear in his response to the proposed amendments, both as to the intent and as to what is not intended to change. I am grateful to him for that and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

[James Brokenshire]

I rise briefly to speak to clause 29 as I know that the more substantive debate will be on the underlying schedule—schedule 5. I emphasise that the proposal is intended to give clarity to the circumstances in which immigration bail is intended to operate. There are various lines of cases that operate in this sphere, in particular a current Court of Appeal case that has suggested that immigration bail conditions could be applied only when there was a right to detain. That certainly goes against existing understanding and practice and pre-existing law. That particular case is subject to appeal to the Supreme Court and has been stayed, so it does not have immediate effect.

Our judgment is that the provisions in clause 29 and schedule 5 give further clarity and are important in the context not only of simplification, putting everything into one place and promoting better understanding, but of providing clarity and certainty in law. That is why I hope that the Committee will be minded to include the clause in the Bill.

Question put and agreed to.

Clause 29 accordingly ordered to stand part of the Bill.

Schedule 5

Immigration bail

[Keir Starmer]

I beg to move amendment 199, in schedule 5, page 78, line 28, at end insert—

“( ) The following provisions apply if a person is detained under any provisions set out in paragraph (current Schedule 5 paragraph 1(1))—

(a) the Secretary of State must arrange a reference to the First-tier Tribunal for it to determine whether the detained person should be released on bail;

(b) the Secretary of State must secure that a first reference to the First-tier Tribunal is made no later than the eighth day following that on which the detained person was detained;

(c) if the detained person remains in detention, the Secretary of State must secure that a second reference to the First-tier Tribunal or Commission is made no later than the thirty-sixth day following that on which the detained person was detained and every twenty-eighth day thereafter;

(d) the First-tier Tribunal hearing a case referred to it under this section must proceed as if the detained person had made an application to it for bail; and

(e) the First-tier Tribunal must determine the matter—

(i) on a first reference, before the tenth day following that on which the person concerned was detained; and

(ii) on a second and subsequent reference, before the thirty-eighth day following that on which he was detained.

( ) For the purposes of this paragraph, ‘First-tier Tribunal’ means—

(a) if the detained person has brought an appeal under the Immigration Acts, the chamber of the First-tier Tribunal dealing with his appeal; and

(b) in any other case, such chamber of the First-tier Tribunal as the Secretary of State considers appropriate.

( ) In the case of a detained person to whom section 3(2) of the Special Immigration Appeals Commission Act 1997 applies (jurisdiction in relation to bail for persons detained on grounds of national security) a reference under sub-paragraph (3)(a) above, shall be to the Commission and not to the First-tier Tribunal.

( ) Rules made by the Lord Chancellor under section 5 of the Special Immigration Appeals Commission Act 1997 may include provision made for the purposes of this paragraph.”

To make provision for automatic bail hearings, after eight days, 28 days and every 28 days thereafter.

--- Later in debate ---

[James Brokenshire]

On the point about vulnerability and acute mental health episodes, that is something that we are considering closely with the Department of Health. I am clear that an individual in those circumstances is best suited in a health setting and not in detention. At times, difficult assessments must be made in ensuring that transfer. Perhaps that will give him a sense of the purpose and manner in which we apply the powers in relation to mental health. He might be reading something into the Bill that we certainly do not read in that way.

[Keir Starmer]

I am grateful for that intervention; it certainly clarifies the issue and deals with part of my concern. As the Minister will know, the High Court looked at this in 2010. The case then went to appeal and its decision was upheld. The High Court said that,

“the use of immigration detention to protect a person from themselves, however laudable, is an improper purpose”

and that,

“there are alternative statutory schemes available under section 48 of the Mental Health Act 1948 or under the Mental Health Act 1983”

for people with acute and real mental health issues. Notwithstanding the intervention, the concern is that on their face, the provisions are wide enough to enable an individual to be detained in such circumstances. I will wait to hear what the Minister says about how his assurance will be carried into effect in practice, because the provisions are currently wide in the Bill.

I conclude by asking the Minister two questions. First, in what circumstances, if not the harm to self or harmed by others examples—classic criminal justice examples—is it envisaged that the provisions would be used? Secondly, how does the Minister intend to put his assurance, or at least his statement of intention, into practice to ensure that it is not used in the way that the High Court thought inappropriate, as endorsed by the Court of Appeal in 2011 and 2014, and is now considered inappropriate in a criminal justice context? I will wait for the Minister to deal with those two questions before saying any more on that.

Amendment 204 is intended,

“to restore the power provided by Section 4(1)(c) of the Immigration and Asylum Act 1999 for the Secretary of State to provide such accommodation pursuant to a detainee’s application for bail to the Tribunal.”

It is a practical amendment. In part 5 of the Bill, the Home Office is making changes to arrangements for support to be applied to persons under immigration control. We will get to that part of the Bill in due course. One set of circumstances in which support is provided is in the case of persons who might be released on bail who would otherwise be destitute. In other words, section 4(1)(c) of the Immigration and Asylum Act 1999 is used to enable an individual to be granted bail. The concern is that in the absence of that support, the individual will not be able to propose a bail address to the tribunal. If that is the case, they will be detained in circumstances where they would not otherwise be detained.

I am not sure whether that was the intention of those drafting the Bill, but it appears to be one of the consequences. If we are wrong about that, we will reconsider the amendment, but it seems that the consequence could be that a number of people who under the current system would be granted bail without difficulty, because they can provide an address because of the support they have received, will now not be able to do so and will not be bailed, to their detriment and to the detriment of public expense.

Amendment 206 picks up the same theme. It is intended:

“To provide a right of appeal to the First-Tier Tribunal (Asylum Support) where the Secretary of State decides not to provide support or to discontinue support under this Part to enable a person to meet bail conditions”.

I think that the background points are pretty much the same as the points that I have just made.

Amendment 205, linked to the previous two amendments, would remove the purported limitations on the use of powers to provide support to people to enable them to meet bail conditions to situations where the Secretary of State considers that there are “exceptional circumstances” justifying its use. We have similar concerns here. We wait to hear what the Minister has to say on those three amendments. If our concerns about possible unintended consequences are allayed, it may be sufficient for us to have set out the concerns.

Finally, amendment 207 would provide that a person arrested without a warrant and detained because it was considered that they had breached bail, or there were reasonable grounds for suspecting that, is brought before a tribunal. The amendment almost speaks for itself. In a number of contexts, individuals are released on bail or condition. It happens frequently in the ordinary criminal justice arena. It also operates for those released from prison on condition. In most circumstances, where someone is arrested and re-detained on the basis that they have breached bail conditions, there is usually a provision for a tribunal before which that individual can argue that they had not in fact breached bail. There are thousands of cases, year in, year out, where on examination by a tribunal it is found that the suspected breach of bail is not made. The person concerned is usually put back in the position they were in before being arrested for breach of a bail condition. The amendment would align the provisions with that common-sense approach that prevails elsewhere. That brings me to the end of this group of amendments.

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[James Brokenshire]

Before turning to the amendments tabled by the hon. and learned Gentleman, I will give way to him.

[Keir Starmer]

Perhaps the Minister would clarify something. I understand the argument that mental health in and of itself does not override the provisions if there is another reason to detain. It would depend on the facts of the case. The assurance the Minister has just given applies where mental health is the only concern, and there is not another reason to detain. Would he be good enough to write to me to set out what he has just said? That is the real issue of concern. I accept that in the other cases, there is the overlap that he has described.

[James Brokenshire]

I appreciate the manner in which the hon. and learned Gentleman has sought to raise this issue. As I have tried to elucidate, there has to be an examination on a case-by-case basis but, to return to the principles, the purpose of immigration removal centres and of detaining somebody should be for removal. However, there may be public protection issues as well, particularly if we are looking at foreign national offenders, for example. There are other elements which sit alongside this. There could be someone who is potentially dangerous, and obviously balancing decisions must be taken on the use of immigration detention for public protection reasons.

I understand the point that the hon. and learned Gentleman makes about whether, from the utility of a public protection standpoint, the provisions and the conditions for immigration bail might be triggered purely on the basis of the individual’s state of mind. I am happy to reflect further on that. Certainly, as I have set out, the approach and the intent concerns what is an appropriate setting for someone. I will look at what the hon. and learned Gentleman has said in Committee and, if there is some further clarification that I can offer, I will certainly review that. There is a sense of the most appropriate setting, and immigration removal centres have to meet certain criteria. The normal Hardial Singh-type principles on detention operate. The hon. and learned Gentleman has made a specific point on mental health, and I will reflect further on whether there is anything I can add to what I have said.

Amendment 199 would require a bail hearing in the tribunal after eight days, after 28 days, then every 28 days thereafter. As I have highlighted to the Committee, the Government take matters of liberty extremely seriously, but we do not consider that there is a need for mandatory judicial oversight of detention in terms of the checkpoints that the hon. and learned Gentleman outlined. There is already well-established judicial oversight available. Individuals detained under immigration powers have unrestricted opportunity to apply to the tribunal for bail at any time. They can also apply for a judicial review of their detention, or for a writ of habeas corpus to the High Court, again at any time.

The current system was designed to be flexible in the interests of justice, and allows the detainee ready access to the tribunal. Legal advice and legal aid remain available for challenges to immigration detention. All detainees are made aware of the ability to apply for bail, but there is obviously a need to strike a balance. Introducing automatic bail hearings in all cases would be a further significant burden on the tribunal, with potential financial loss to the taxpayer, and would utilise time that could be spent on other matters. That could prolong the time spent in detention, and could deny other appellants timely access to justice.

It is interesting to note that the House has considered this issue before. The hon. and learned Gentleman may indeed wish to reflect on the comments of his hon. Friend the Member for Wallasey (Ms Eagle) when the Nationality, Immigration and Asylum Bill was in Committee. In respect of the repeal of an uncommenced provision that then existed, the hon. Lady, who was then a Home Office Minister, said:

“We concluded that it would be a logistical nightmare that would divert scarce resources from processing asylum applications. That would make it harder for us to complete the asylum process as speedily as all members of the Committee want…We have to be honest and open about these issues. The administrative consequences of automatic bail hearings are substantial. Given the figures and the potential for bringing the whole system to a halt, it was our reluctant judgment that unfortunately it would not be realistic for us to introduce part III bail hearings. We thought it more open and transparent to repeal those provisions, as the amount of available funding and the priorities we have for getting asylum claims through the system would not allow us sensibly to bring them into effect without that having an adverse or catastrophic effect on our system.”—[Official Report, Standing Committee E, 14 May 2002; c. 256-57.]

Although I understand the intention behind amendment tabled by the hon. and learned Gentleman, it is worth understanding the history and, equally, the challenges of automatic hearings.

During our evidence sessions, much was made of the Home Office seeking to take control of bail from the tribunal, and I want to assure the Committee that that is not the case. It is an inaccurate description of the effect of the bail clause and the schedule. I want to make it clear that the Home Office is already responsible for the management of the vast majority of cases on conditions imposed by the legislation that is being consolidated.

I turn to amendment 200, which would prevent the detention of an individual on bail unless it was thought that they intended to breach, or had breached, their conditions. I think that I understand the intention of the amendment. I underline the purposes for detention, primarily on removal but equally there might be public policy conditions. I suppose what the hon. and learned Gentleman asks is whether we can do more to achieve removal from this country of people who should not be here, without the necessity of detention. That might, in part, underline some of his thinking. Our approach to immigration enforcement seeks to promote and encourage more facilitated or encouraged removals, rather than simply to use detention as a means of achieving the outcome that I think people would want to see. Certainly that is an approach—an embodiment—that we seek to take with our removal strategy. The hon. Member for Rotherham made a point about not only the cost but the efficiency and effectiveness of the system.

[Keir Starmer]

I understand the Minister’s comments about detention and its purposes, but we are talking about a situation in which the tribunal is charged with faithfully going through a test of the individual circumstances of the case. In that situation, in what way and for what purpose does the Minister see the Secretary of State overriding the tribunal? Normally, if one side in a tribunal loses an argument on detentional conditions, there is an appeal route, but this appears to be something different in that the side that loses simply gets on with what it wanted in the first place.

[James Brokenshire]

I will come on to that point. It is a slightly different one from the one I was addressing. On amendment 200, I was responding to points about preventing detention where bail had been granted and about re-detaining if there was no risk of a breach. Sometimes, very close to a removal, when it is felt that the safest and most appropriate action would be to use detention, that mechanism may be adopted. Re-detention could be appropriate. It is also worth remembering that people granted bail might never have been detained. There will be people who are allowed into the UK on conditions while their claim is being considered. The amendment would mean that the Secretary of State could not detain such individuals if there were a change in their circumstances—for example, if their claim had been refused—without a suspicion that they were about to breach or had breached conditions.

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[Keir Starmer]

I am grateful to the Minister for outlining the position on changes of circumstances. He has given a degree of reassurance, because what he said chimes with other not dissimilar regimes, but the matter is not clear in the Bill. Nothing in the Bill refers to changes of circumstances, so what level of assurance can he give that the provision is not intended to be used, nor will it be used, in a case where there is no change of circumstances?

[James Brokenshire]

If we are talking about detention, we are in many respects back to some of the basic principles as to why detention would be used, such as the immediacy of removal. Alternatively, we are talking about some other public policy objection on the basis of established legal principles around the matter. Those principles are what guide the potential use of the power, in addition to the obvious example of a change in circumstance.

Amendments 210 and 211 are probing. The Committee wants to better understand why there is a need for a restriction on study and what other conditions are envisaged on immigration bail, and when they may be imposed. We have chosen to include a restriction on study as it is something that may be considered under the bail powers. Like the other conditions listed, a restriction on study is only an option that is available; it is not a mandatory requirement and can be imposed as appropriate.

The power is not, as was suggested, about trying to deny education. If a child can lawfully access education services, we will not seek to disrupt that by using restrictions under the bail power to place a prohibition on them attending. We also do not intend to impose through the use of the power a blanket ban on asylum seekers accessing education. Where the power could have utility, however, is on specifying the place at which someone can study, for example. That would mean knowing where they are and saying that they are permitted to study, but only at a particular institution. For example, the wrap-around for a particular family group may be most appropriately provided for by conditions that are allied to a child going to a particular school. I point to it in that way. We have other regimes where conditions can be attached to study that are more towards that stance and approach.

On the broader power to impose conditions as appropriate, it is designed to maintain current flexibility in the ability to impose bail conditions specific to the facts of the case. That is most readily seen in Special Immigration Appeals Commission bail, but it is also seen in some of the most harmful foreign national offender cases. SIAC bail conditions are often bespoke, based on the risk the individual poses. Some cases will require specific conditions to mitigate specific risks. For example, we may want to impose an overnight curfew based on the risk posed, or it may be appropriate to create an exclusion zone if a convicted paedophile is bailed pending deportation.

A slightly more general point I would make is on the question posed on the general conditions that can be attached. The hon. and learned Gentleman sought to argue that that should be limited. My understanding and advice is that that is already maintained in the existing legislative framework and is in essence a read-across from pre-existing legislation. The power to impose any conditions appearing to be likely to result in the appearance of the person answering bail is currently in primary legislation at paragraph 22(2) of schedule 2 to the Immigration Act 1971. I think it is to maintain the existing flexibility that that applies.

Amendments 201, 202 and 203 would remove the ability of the Secretary of State to require a residence condition or the imposition of an electronic monitoring condition as a condition of tribunal bail, undermining the Government’s commitment to deliver electronic tagging as part of our manifesto commitments. If we did not take this power, the tribunal could in theory decline to impose a tag. During the evidence sessions earlier in Committee, it was suggested that these provisions make the role of the tribunal meaningless. Let me assure the Committee that that is not the case. The tribunal will still be able to order the release of an individual on bail and will still be able to impose the conditions it sees fit, subject to the specific point that I have highlighted on requiring that an individual resides at a certain address or wears an electronic monitoring device where the tribunal has declined to impose such a condition when granting bail. We expect this power to be used very rarely, as the tribunal would normally impose a residence condition or tag when one is requested. If the Home Office seeks to impose a condition where the tribunal earlier declined to impose one, such a decision would be challengeable by way of judicial review. The Secretary of State would need to justify why the condition was imposed.

[Keir Starmer]

How is it proposed that this will work in practice? There is a hearing before the tribunal. The tribunal goes through the individual facts of the case and there is an argument before the tribunal on whether a condition of electronic tagging, for example, is appropriate. The tribunal looks through all the relevant material and says that in this case, it is not necessary according to the test. As I understand the Minister, the Secretary of State then comes along and says, “That’s all very well, tribunal, we disagree and we are now imposing a condition that you have just decided it is not necessary to impose.” If the individual does not like it, they go to the High Court on judicial review. Is that the regime?

[James Brokenshire]

I think the hon. and learned Gentleman has set out what I have just indicated to the Committee. It is that sense of requiring. We have looked at, for example, foreign national offender-type cases. Our judgment is that foreign national offenders who are in this country unlawfully should be subject to ongoing monitoring through electronic tagging. It is that clear policy intent that we judge, but, as I have indicated, there would be a right of challenge by way of judicial review.

There is a precedent for such a power. The House passed a similar provision in the Immigration Act 2014; the Secretary of State is required to consent to the release of an individual on bail by the tribunal when removal is 14 days or fewer away. The Secretary of State already has that mechanism—in, I accept, a slightly different situation—and that sets a precedent on how the Secretary of State has a direct interest.

Amendments 212, 213 and 214 remove the requirement to consider whether it is in a person’s best interests to be detained before releasing on bail. I understand that these are probing amendments to understand when it will ever be in anyone’s best interests to be detained under immigration powers. First, I want to repeat that it is the Government’s policy that there is a presumption of liberty and that immigration detention should be used as a last resort. I make no apologies for stating that fact again and I hope that the Committee welcomes that clear and unequivocal statement. However, there may be some cases in which immigration and detention powers have to be exercised while arrangements are made for an individual to be transferred to appropriate care. I have given some examples of that in my earlier comments. I want to be clear that the power should only be used in a limited way and for the shortest period possible, but I hope that the Committee understands that that may be needed in those exceptional circumstances.

Amendments 204 and 206 relate to accommodation arrangements for individuals who are on bail. Amendment 204 would create a duty to provide accommodation to anyone released on bail even if they had the funds to secure their own accommodation. Amendment 205 would remove the term “exceptional circumstances” from the new power in the Bill and amendment 206 would create a right of appeal against refusal to provide accommodation to a person released on bail. Schedule 5, paragraph 7 provides a power to allow the Secretary of State to meet accommodation costs and travel expenses for those granted immigration bail. That arrangement is designed to replace section 4(1)(c) of the Immigration and Asylum Act 1999, which is repealed by the Bill, but to date has been used to provide accommodation for persons released on bail in the limited circumstances where we judge that that is appropriate. The repeal is part of the wider changes to support provision for failed asylum seekers and other irregular migrants which will be debated later, so I hope to leave detailed debate on that until we get to schedule 6, when we can have a much fuller debate.

The power is deliberately drafted in a restricted way as in general, individuals seeking bail are expected to accommodate themselves or arrange accommodation through friends or relatives. This is no different from the way the section 4 power is currently used. It is clearly inappropriate to spend public money providing accommodation for people who do not need it. It should therefore only be in exceptional circumstances that the Secretary of State should pay for the accommodation of people seeking release from detention on bail. If the person is truly unable to arrange their own accommodation, the powers can be used to provide it on a case-by-case basis, considering the particular circumstances, including whether they are able to avoid the consequences of being left homeless by returning to their own country. It would be unnecessary to use the power to accommodate asylum seekers, as section 95 or section 98 of the Immigration and Asylum Act 1999 are already available for this group.

On amendment 205, the concern expressed about the provision appears to be based on the assumption that there will be increased use of detention for a longer period, because bail can only be granted when an address is available. The new bail powers contain the concept of conditional bail, at paragraph 3(8). That will allow the tribunal to grant bail conditional on arrangements specified in the notice being in place to ensure that a person is able to comply with the conditions. Where a residence condition has been applied, it will be for the individual to find a suitable address during the period of conditional bail and, if a suitable address cannot be found, for them to go back to the tribunal for a further hearing. If the person is unable to find an address, consideration will be given to using the powers in paragraph 7 to provide one. We do not consider it necessary to add further complexity to the process by creating a specific right of appeal against refusal to provide an address. Any claim that there has been a refusal to provide an address could be challenged by way of judicial review.

[Keir Starmer]

I am grateful to the Minister for giving way because it may settle this amendment. As I understand the Minister, it is envisaged that the tribunal will use conditional bail to bail someone on the condition of a residence, or an address, unspecified. There will then be a period during which the individual either finds an address or consideration will be given to supporting the individual to have an address so that they can be released. Is that how it is envisaged that this will work, when looked at in the round?

[James Brokenshire]

That is how conditional bail can be used in these circumstances, as I think I described in my response to the hon. and learned Gentleman’s points. I think that I have covered all his amendments and, in the light of that, I hope that he will be minded not to press them.

[Keir Starmer]

I want to press amendment 207 to a vote. I do not know whether it is appropriate, but on amendments 199, 200, 201 to 203 and 212 to 214, I have listened to the Minister with care and I will not press them to a vote now, but I reserve the right to bring them back later, having reflected on what has been said about them.

Immigration Bill (Eighth sitting)

Debate between James Brokenshire and Keir Starmer

Thursday 29th October 2015 Public Bill Committees

[James Brokenshire]

The hon. Lady makes her point, and I have no doubt that we will discuss that further when we reach part 5 and clause 34 on support for certain categories of migrants. There are duties around homelessness, and there will be relevant factors such as whether there are barriers to removal and whether someone is co-operating with their removal. If I may, rather than going into the details now—they are relevant; I do not seek to avoid debating them, but I think that they stray more into later issues—I am looking forward to debating the matter when we reach those points.

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

This intervention is simply to make sure that I understand what the Minister has just said. The Home Office is required to take into account children when it makes any of its decisions, and I understand that. However, does it follow from that that it would not serve a notice on a landlord if there were children in the family? The difficulty that amendment 89 is getting at is that once the landlord has the notice, the eviction process follows, so the only way in which the Home Secretary would be able to consider children would be by not serving a notice on the landlord. Is that what he means?

[James Brokenshire]

That is what I mean. The point is that children may be involved through the family returns process, and therefore, it may be appropriate in those circumstances to serve the notice, but the Home Secretary, or those who would draw up the notices and consider each individual case, would have to weigh up and carefully consider all those issues. Our overriding responsibility is to take into account the interests of children under other legislation. That is the point I am making. The hon. and learned Gentleman is right about the process, but there is that preliminary step and check that the Home Office would have to consider. However, it may be appropriate to serve a notice, for example, as I say, when children are involved in a family return and are viewed in that overall framework.

Many cases will not get to court as the landlord can offer to transfer the tenancy to the remaining legal tenants, or to enter into a new tenancy with them. The measures also contain a discretionary power for the court to transfer the tenancy rather than award possession on the mandatory ground if the judge thinks it is appropriate to do so.

The mandatory ground for possession recognises that the Home Office notice is a clear statement of immigration status; it is not necessary or helpful for a court to enter into its own additional assessment of the reasonableness of making a possession order, which would be the effect of making this a discretionary ground. I look forward, however, to further discussion on the specific eviction provisions when we reach our consideration of the relevant clauses.

I want to take a slight step back to the issue of discrimination, which we touched on before the luncheon period. Sadly, it remains a fact that there is discrimination in this country, in a number of different forms. The hon. Member for Sheffield Central made important points on the manner in which we should seek to confront that and on the fact that it is unacceptable. There is common ground across the Committee on those general points.

The question I posed to the hon. Gentleman—I note that he thought it was not necessarily relevant—was on the logic of where I thought his comments were going. If he says, for example, that a check on the right to work is not acceptable, because of the issues that he was elucidating, he is entitled to hold that view. Equally, I was checking with him whether that was where his logic was taking him. He can obviously speak for himself; I would not wish in any way to impute something or put words into his mouth.

The point I make is that there is a policy objective, as I have indicated, in seeking to ensure that when properties are on the rental market, they should primarily be for people—we would argue that the regulations and process behind right to rent is intended to achieve this—who have the absolute and clear right to be in this country, recognising the shortages of property and the need for prioritisation. Similarly, there are arguments as to how that might either encourage people not to come to this country or to encourage their removal as part of an overall removal framework. So there are different policy objectives in that. The third element is, as I indicated before lunch, how the information that can be garnered through right to rent checks, and collaboration between immigration enforcement and local authorities can have a direct benefit in challenging rogue landlords and raising standards in letting property. We see all those objectives in the concept behind the original right to rent scheme. That is added to with the extra criminal offence in the clause, albeit with the enhanced test that needs to be applied in parallel with and reflecting the points that we discussed previously about illegal working. A suite of mechanisms is in place to raise standards within the property sector, as well as in other sectors.

The sad reality is that discrimination happens in the workplace and when renting a property. Indeed, the Home Office study showed that there was no distinction between the two test areas—the area where the right to rent scheme was in its first phase and the area where the right to rent scheme was not in existence. That for me is what things come down to. Yes, of course we should be confronting discrimination, hence we have specific guidance on the operation of the right to rent scheme to ensure that it is not operated in a discriminatory way. The guidance underlines the sanctions that can be brought against those who are shown to be discriminating. That is right and it is why other legislative measures are in place to underline it.

Given the Home Office study, however, and the blend of evidence—it was not one single thing but a host of elements that led to the comments in the evaluation, whether surveys, mystery shopper exercises, focus groups or direct engagement—our conclusion was that the initial phase of the right to rent scheme had operated effectively and appropriately and that there was no hard evidence that the scheme contributed or added to discrimination. That is our standpoint and the reason why we have made our judgment. I appreciate that I am straying slightly beyond the ambit of the Bill, speaking more to the 2014 Act than to the specifics of the proposed offence that we are debating, but there is some linkage, which is why I thought it appropriate to respond to some of what was said in the initial debate.

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[James Brokenshire]

That is why the offence is framed as it is. It is not about negligence but about conscious or deliberate turning of a blind eye. I take the hon. Lady’s point, but it is not set at that lower level.

[Keir Starmer]

I want to press the Minister on the point about assurance raised by my hon. Friend the Member for Sheffield Central. The Minister pointed to the focus groups, but we heard evidence from Richard Lambert, the chief executive of the National Landlords Association, who has huge experience in the field. He said:

“We would have said, ideally, a year to 18 months because most tenancies last more than six months. In order to understand how this process works, you have to give it that length of time so you can see tenancies coming to an end, and limited right to remain coming to an end and you can see how that renews. It also took place at what is probably the slowest time of the year so, inevitably, there were not going to be a lot of tenancies turning over.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 63, Q139.]

He went on to mention the point about university students. He was saying that if we want to evaluate the policy we have to do so over a longer period. He absolutely knows what he is talking about. What does the Minister have to say to Richard Lambert, and how comforted is he by the evaluation, with the deficiencies that we say we have identified?

[James Brokenshire]

I do not accept the point about deficiencies. The evaluation speaks for itself. The evaluation’s overall framing—the terms and the different natures of the multiple methods that we used—was constructed alongside the landlords panel, which has representatives from a number of landlord groups, from charities and voluntary sector organisations, and from the university sector. I recall discussions with all those groups, taking them through the way in which the evaluation was constructed. That construction led to the results we have before us. It reflected points made to us. The evaluation was not deliberately constructed so as to find a favourable response—the rigour of Home Office science would have ensured that that was not the case. That is how I would respond. We judged that there should be a six-month period. We had the input of various different groups to assist us in framing the evaluation’s terms and the manner of its conducting. In my judgment, the evaluation can be relied on so we have decided to extend the right to rent scheme further beyond its first phase.

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[James Brokenshire]

As always, Mr Bone, I thank you for the clear guidance you give in chairing the Committee.

Amendment 12 would prevent the transitional provisions in the Immigration Act 2014 from applying to the new clauses on evictions and offences. Amendment 18 would make it clear that the measures on landlords obtaining possession of their properties would apply regardless of when the occupancy or tenancy agreement was entered into. Amendments 13 and 14, and 17 to 20, would provide that any reference to a landlord under the Bill would mean any landlord, where there are joint landlords; and amendment 21 is a minor drafting change, the better to reflect the terminology in the Rent Act 1977. I suspect that the hon. and learned Gentleman may want to make some comments.

[Keir Starmer]

In relation to amendment 12, the Minister has no doubt seen the letter written to him by the Residential Landlords Association on 23 October, which says:

“The effect of amendment 12 will be that all existing tenancies in the private rented sector will now be covered.”

It then spells out what it sees to be the consequences of that:

“The threat of substantial fines or potential imprisonment will cause a great deal of concern for all law-abiding landlords who constitute the vast majority. They will want to be completely certain that those residing in their rental properties are legally entitled to do so. The only way of doing this, and to avoid accusations of discrimination, will be to check the documentation of all their tenants, whether they are UK nationals or not.”

The Residential Landlords Association is concerned that the likely response to the provision is that all law-abiding landlords will want to carry out checks for themselves on date X, when it comes into force. It then spells out the implications of that. First, the provision will place a huge burden on landlords—particularly those with multiple properties, who will have to contact each and every tenant to carry out the check. Secondly, it is concerned that

“the structures in place to provide support to landlords, unless properly resourced, will not cope.”

It references a response to a written question tabled by the hon. Member for Paisley and Renfrewshire North. It says that the Minister

“indicated that there are just 2 full time equivalent members of staff handling incoming calls to the landlord helpline.”

It then points out the potential for chaos. It cites the 2011 census figures, which show that

“16.5% of tenants in private rented housing do not hold any passport”.

The Residential Landlords Association’s big concern is that if amendment 12 is agreed to, many, if not the vast majority, of landlords will want to carry out checks on the day that the provision comes into force. That is a huge national exercise, way beyond anything that happened in the pilot or anything that would constitute the exercise if only future tenancies were included.

The Residential Landlords Association raises the concern that the provision will lead to some unjustified convictions where documentation is not easily to hand. As it says, 16.5% of those in the rented sector do not have passports. It also points out that many landlords, having done the checks, will feel compelled to report to the Home Office anybody they feel is of concern to them, which could be many thousands of individuals. It asks for two things—first, a simple, readily identifiable document that it can use; and, secondly, for the Government to outline what plans they have to increase the resources available.

There are very big concerns in the relevant sector about how the provision will work. There is a trigger date and, if the Residential Landlords Association’s analysis is right, landlords will not feel comfortable sitting back and waiting until each tenancy comes to an end. They will feel compelled to carry out the necessary checks. As it also points out, if a landlord is served with notice by the Secretary of State in relation to an existing tenant—a tenant whom they were not required to check on at the outset, which knocks out one of the points made in an intervention this morning—they become criminal from that date onwards, notwithstanding the fact that when they took on the tenant they were not required to carry out a check, and until they got the notice from the Secretary of State they would not have known that there was anything wrong with the tenant’s status. If ever there was a glaring example of why the vote on the defence that has just been taken was wrong, this is it. A landlord who has had a tenant for many years and was not obliged to carry out a check, can potentially receive a notice from the Secretary of State, which will be the first the landlord knows that there is anything wrong with the tenant’s status, and immediately become a criminal, with no defence.

The Residential Landlords Association has raised serious concerns that require, at the very least, a high level of reassurance. How does the Minister see things operating in practice? Is he saying to law-abiding landlords that they should sit back and not bother checking? Is the message that, notwithstanding the provisions, they are perfectly entitled not to check? That would give them a level of reassurance. If they feel that they ought to check, will there be adequate resources to enable them to do so properly? They are deeply concerned. Does the Minister see any merit in their concern that once they are notified by the Secretary of State they become criminals? On the face of it, that would be unjust and unfair.

[Chloe Smith (Norwich North) (Con)]

I want to make an extremely short point in support of the clause. There is a strong argument for having new offences to target rogue landlords and agents who deliberately try to exploit others and who, in doing so, reduce the extent of housing stock for those who do have the legal right to be in this country.

Will the Minister help me on a point of detail? On page 6 of the explanatory notes, paragraph 13 states that the intention is

“to target those rogue landlords and agents who deliberately and repeatedly fail to comply with the right to rent scheme or fail to evict individuals who they know or have reasonable cause to believe are disqualified from renting as a result of their immigration status.”

Will the Minister explain how the nature of a repeated misdemeanour comes through in the Bill? Repeated failure to comply is a strong argument for ensuring that we have adequate legislation to combat such practices.

[James Brokenshire]

I appreciate the hon. and learned Member for Holborn and St Pancras raising the concerns of the relevant landlord body. A number of things flow from the provisions. I do not accept that the clause will trigger some form of requirement to check retrospectively. As I highlighted in an earlier contribution, the point is that the offence under what would be new section 33A of the Immigration Act 2014 will be triggered on two conditions: first, that the premises are occupied by an adult who is disqualified; and secondly, that the landlord knows or has reasonable cause to believe that the premises are occupied in such a way.

We come back to the previous debate on the distinction between nuisance and the higher standard that will be applied for the new offence. I do not share the Residential Landlords Association’s view and will certainly respond to it in clear terms. I know that the RLA has consistently voiced concerns about the right to rent check scheme and how this matter might present itself in the west midlands. I welcome the contribution it continues to make through its support and input to our landlord panel, but I must underline that its interpretation of the provisions in the Bill extends them in a way that is not intended.

[Keir Starmer]

I want to clarify this. I accept that there is no requirement to check—that is not in the Bill and I do not suggest that it is. Is the Minister saying that because landlords would have to have knowledge or reasonable cause to believe, they should not ask any questions? In other words, “Don’t ask. Don’t put yourself in a position to know and you’re perfectly safe.” Is that the message to landlords? They are concerned that they should ask so that they are regularised and within the law. I have already made the point about there being no defence if they are served. Is the Minister saying to landlords, “Sit back. Don’t ask. Don’t find out, and you won’t be caught by the knowledge provision”? That is an odd message to send.

[James Brokenshire]

I take the hon. and learned Gentleman back to the second condition. If a landlord has reasonable cause to believe, it may trigger that requirement. If, in some way, a landlord has turned a deliberate blind eye, or if they have somehow rented property to someone whom they know or suspect to be in the country illegally, it would potentially trigger the offence under proposed new section 33A(3). The two mechanisms will apply. From an enforcement standpoint, it is right that the legislation is framed in that manner. As he accepted earlier, the legislation will also address those egregious situations in which someone is renting out property in an appalling condition to people who are effectively in the country illegally. In essence, such landlords are exploiting them, which is why the offence should apply in those circumstances. That is the intention behind the clause, and it is why it is right for the offence to be framed in this way.

I will write back to the Residential Landlords Association to underline the sense, purpose and nature of this clause and how it will operate in the manner highlighted by my hon. Friend the Member for Norwich North. The right to rent scheme has come in, and there have been serial breaches, which in many ways reflects our earlier debate on the closure notices and on rooting out rogue landlords in some of these serious and egregious cases. The Residential Landlords Association shares that intention, and I will respond to it in that fashion.

[Keir Starmer]

The Minister’s approach is based on the premise that, historically, landlords would have checked, whereas in truth they did not. I can understand the situation, because there have always been checks. A landlord may have been sailing close to the wind or never have been the sort of landlord to be trapped by this or any other scheme, but their concern is surely that they have never had to go through this process before. They have never asked these questions, so they do not know one way or the other. Is the answer to them, “Stay ignorant and you are safe”?

[James Brokenshire]

I come back to the two points that I have already raised with the hon. and learned Gentleman. There is no requirement to carry out additional checks. This is an offence that will have to be proved beyond all reasonable doubt in the normal way and satisfy the two conditions. I have highlighted the test that needs to be satisfied on the second condition. That is the standpoint from which I take it, and it is how we continue to judge that this is an appropriate mechanism to combat the rogue issues that I have highlighted.

I spoke about the notice triggering process in our previous debate and in response to other hon. Members. I will reflect on what has been said in this debate and in the previous debate, but I draw parallels with the provisions on illegal working. An employer will potentially be committing an offence once they are fixed with knowledge about their employee’s immigration status, but obviously they can remedy the situation, so there are parallels to be drawn with that regime. I have told hon. Members that I will reflect on those comments, and I will do so.

--- Later in debate ---

[James Brokenshire]

Amendment 70 would defer the implementation of the measures in the Bill for two years and amendment 73 would require that the Government lay before Parliament a report of the likely impacts of the new measures. The Government have published both a policy equality statement and an evaluation of the right to rent scheme. Both are available in the public domain. For the reasons that we have debated previously, we judge that there is no good reason to delay implementation of the new measures.

On amendment 86, the Home Office takes seriously its responsibilities towards children, and the new measures take account of the need to be clear about when it is appropriate to serve notice on landlords in respect of illegal immigrant families. Clause 13 applies where all occupiers of the premises are disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement. In some circumstances, as with eviction for other reasons under housing legislation, that will mean that children are evicted along with adults in family groups.

The expectation is that persons who are in the United Kingdom without permission should regularise their position or leave. That applies to family groups as it does to individuals, but where families are involved, they will be offered advice and assistance in returning home and the Home Office will seek to engage the family in the family returns process. Families, as with other illegal migrants, will be given clear warnings that a failure to regularise their stay, to return home or to engage and co-operate with attempts to assist them to return may lead to the Home Office contacting the landlord and advising that the family may be evicted.

The measures make it clear that action can only be taken following service by the Home Office on a landlord of a notice or notices in respect of each occupier; those will only be issued when the Home Office is clear that all of the occupiers are illegal migrants and do not have the right to rent, and there is no bar to them leaving the United Kingdom. In serving a notice in respect of a child, the Home Office will have regard to its duty to safeguard and promote the rights of children. I made that point earlier. The measures also ensure that a landlord must provide at least a 28-day notice period, during which arrangements could be made by persons in the country without permission to leave the UK. Given the protections already in place, the amendment is unnecessary.

In response to the latter points made by the hon. Member for Paisley and Renfrewshire North, I do not accept or recognise a number of the assertions that he made. We remain conscious of the implementation of the right to rent scheme as we extend it out and, indeed, how we can ensure that we give clarity around the documents that might be required, in particular where someone might not have a passport or a driving licence. That is something we remain focused on in the detailed implementation of the scheme. The landlord panel is indeed actively assisting us with that.

[Keir Starmer]

I ask that we vote on the three amendments.

Question put, That the amendment be made.

Immigration Bill (Seventh sitting)

Debate between James Brokenshire and Keir Starmer

Thursday 29th October 2015 Public Bill Committees

[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—

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

[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.)

Immigration Bill (Sixth sitting)

Debate between James Brokenshire and Keir Starmer

Tuesday 27th October 2015 Public Bill Committees

[James Brokenshire]

I am grateful to you, Mr Bone. It is important on these points of detail where issues have been raised that we try to give clarity in Committee. I entirely understand your ruling; as always, the Chair is entirely sensible.

In response to the hon. Gentleman, when he reads the record of what I said—as I know he will as he is assiduous and focused on getting things right—I hope he will see in the explanation the distinction we are drawing between labour market and what is straying beyond labour market issues, and why we have drawn the provision that way.

I apologise for straying slightly, but clause 3(6) links to the amendment and it is appropriate to comment on the point now. This definition of “worker” is used only once in the context of clause 3(4). I will reflect on the drafting of that, since we are clear on the intent and how it works through. The intention is not to imply or impute any limiting of that definition into the other provisions listed in clause 3(4). That is not the intent and hence my comments. Without any commitment, I will certainly look at the wording of that to satisfy myself that it does not give any wrong impression. As I have said, that is not the intention.

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

Thank you, Mr Bone, for your indulgence on this. I want to make sure that we have got the point right, because it may be that the area of dispute is considerably reduced. I am grateful to the Minister and the team that has been behind him over the last hour and a half for this clarification, which really helps. As I understand it, the definition of “worker” in clause 3(6) is limited for the purposes of this measure alone and therefore does not affect anything beyond it.

[James Brokenshire]

Correct.

[Keir Starmer]

That removes one concern, so I am grateful for that clarification.

As far as clause 3(4)(e) is concerned, what is being said is that the offence itself is unaffected by any definition; it only goes to the remit of the director. Again, that removes a concern. Therefore, the only remaining concern is that the director has a remit only over certain types of worker for the offences in clause 3(4)(e), as I understand it. The Minister put forward a reason for that—just to make sure I have understood that. I am not sure how it works in a Committee such as this, but I wonder whether it is possible to have that in some written form over and above what the Minister has said already, which I know will be on the record. It is critical to the international obligations and how other people will look at this and understand it. I am grateful for the clarification.

[James Brokenshire]

I am grateful for the way in which the hon. and learned Gentleman has raised the matter. If it helps the Committee, I will be happy to write to him to set out what I have said and give that clarity in context. I get the sense that the issue on these provisions is perhaps narrower than it may have appeared at first sight. It relates to the way the provision operates within the Modern Slavery Act itself and the way in which the term “worker” is used within that. It is perhaps not even as complete as he was suggesting in that context. Given this is quite a narrow, technical, but important point, I think it will probably be helpful if I write to him to set that out in further detail. It would be open to him to reflect on that as we look towards Report.

--- Later in debate ---

[James Brokenshire]

As the hon. and learned Gentleman highlighted, the amendment would require the director of labour market enforcement to engage with civil society in developing the enforcement strategy provided for by the clause. I sympathise with the intention behind the amendment, but it is not necessary or, for the reasons highlighted by my hon. Friend the Member for Norwich North, workable in its current form.

The hon. and learned Gentleman rightly highlighted the consultation that we are undertaking, and he read out the relevant part, about our expectations regarding stakeholder engagement. It is right that the director should speak to a range of people—the widest range of sources—to identify the scale and nature of non-compliance in the labour market. That will include securing information from the information hub we will consider when we reach clause 6, but it will rightly also include engaging non-governmental organisations, bodies representing employers and workers, and other organisations to develop the fullest picture.

The consultation published on 13 October contains more information on how we envisage the relationship working. We will flesh that out further in the light of the views received in response to the consultation. I want to see what the responses look like before we reflect on whether anything further needs to be undertaken.

The director will play a leading role publicly in bringing greater co-ordination and coherence to the enforcement of labour market legislation. The strategy they produce will be public, so I have no difficulty in principle with their consulting civil society in developing it, however that may be framed or defined.

Sometimes, when we go into legislation, we can close things off, rather than opening them up. We need to define things in a very legalistic way, and the issue is how we can properly give effect to the desires in the consultation document. I do not want to risk creating unnecessary scope for legal challenges to be brought against the director or, bearing in mind the legalistic approach we have to take, closing things down.

I do have sympathy with what the hon. and learned Gentleman said, and I will obviously review the responses to the consultation. With that reassurance about how we are approaching the issue, however, I hope he will be minded to withdraw the amendment.

[Keir Starmer]

I am grateful to the Minister for that reassurance, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

[James Brokenshire]

I intend to speak only briefly because we have had quite a wide-ranging discussion of the priorities for enforcement and the outcomes required from the enforcement bodies, which the director will be looking for in the strategy, as well as a number of other themes relating to the nature of the director’s operations, which we touched on in the group of amendments before last. Crucially, the strategy will be evidence-based. It will contain the director’s assessments of non-compliance in the previous year—points were raised about that in previous debates—and predictions for the next two years, based on information drawn from a range of sources, including the three enforcement bodies, other Government bodies and civil society organisations. That will allow the plan for the coming year to be based on where non-compliance is most likely to occur and to cause harm. It will be subject to more public involvement, and the strategy will be published in the way I have outlined. I trust that the Committee will support the clause.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Non-compliance in the labour market etc: interpretation

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

--- Later in debate ---

[James Brokenshire]

The clause requires the Secretary of State to lay before Parliament any strategy or report produced by the director, to provide transparency and accountability for the director’s role and to inform Members of the House. As I have indicated, we want the director to be a visible leading figure. Laying their reports before Parliament in a very public way will inform debate. It will also allow for greater scrutiny and accountability for Ministers on the performance of the three agencies, and on how the director’s function is working and operating, and why it is framed as it is.

Question put and agreed to.

Clause 5 accordingly ordered to stand part of the Bill.

Clause 6

Information hub

[Keir Starmer]

I beg to move amendment 61, in clause 6, page 4, line 31, after “market” insert

“to facilitate the labour market enforcement functions as defined in Section 3 of this Act”.

To prompt debate about the information hub proposed in Clause 6 of the Bill.

We have tabled the amendment to prompt a debate exploring how the information hub will work. We welcome the co-ordination and joined-up thinking that the hub will bring about, we hope, for the director of labour market enforcement, as that will lead to better enforcement. We raise the question against the backdrop of concern expressed earlier about the overlap between immigration enforcement and labour market standards enforcement, which brings the information hub into sharp focus. Page 23 of the consultation document states that the information hub

“will gather available data from the labour market enforcement bodies and other sources, such as Immigration Enforcement, the police, NCA, HSE, local authorities and the voluntary sector”,

which is a wide range of information.

--- Later in debate ---

[James Brokenshire]

No, the provisions of clause 6 state that the director must gather, store, process, analyse and disseminate information relating to non-compliance in the labour market. It is important that we provide this statutory mechanism. Equally, in terms of further development and implementation, it is not appropriate for us to legislate while constantly taking into account further submissions. I do not think that that cuts across the need for clause 6 or the manner in which the labour market enforcement director would conduct his duties. I do not see them in any respect as being at odds. I hope that in the light of those points the hon. and learned Gentleman will be minded to withdraw his amendment.

[Keir Starmer]

I am grateful to the Minister. As I said, the aim of the amendment was to enable us to understand better how the hub would work and be resourced. On that basis, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.

Clause 7

Restriction on exercising functions in relation to individual cases

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

--- Later in debate ---

[James Brokenshire]

Clause 7 prevents the director getting involved in individual cases. This is to allow the enforcement bodies to preserve their operational independence, a theme that was also highlighted in earlier contributions on the Bill. It is not appropriate for the director to have the power to influence decisions about the enforcement action to be taken against individual businesses. However, the clause allows the director to consider individual cases where these provide useful information in relation to general issues and to inform the director’s strategy or other work. Sometimes the individual parable, or the experiences of an individual can be important to understanding the reality of the abuses that take place. It is in that context that the clause has been introduced; we do not seek to encroach on the operational independence of other agencies in pursuing cases against particular employers or in particular circumstances.

[Keir Starmer]

I have, as it were, a genuine question; perhaps assurance on this will do the trick. At the moment, clause 7(1) would prevent the director making a recommendation after completion of a case, whatever legal proceedings were contemplated. Therefore, it may be over-narrow. In other words, the director may see a completed individual case and want to make a recommendation about whether it was good, bad or indifferent.

I can see the point in a provision that prevents interference in ongoing proceedings or the carrying out of functions by other bodies. A simple assurance or explanation may help, but at the moment the clause may be read as preventing a recommendation after the event about a particularly good way of doing something or a problem that needed to be avoided in future.

[James Brokenshire]

It will be open to the director, in looking at individual cases, to make broader recommendations on strategy or the manner in which agencies conduct their duties. We have to be careful, which is why we have structured the director role in this way, that there is operational independence for each of the agencies to pursue a case using their expertise and their chosen manner.

The position is more strategic. The director should not be drawn into how an agency should or should not have acted in a specific case. It is still open to the director to look at individual circumstances and cases, hence my earlier comment, and to make recommendations for the future. I do not think that that strays in relation to the language that we have here, into making a recommendation in an individual case; that would be to second guess the operational thinking of the different agencies. That is the intent behind the drafting, and I hope that is helpful.

Question put and agreed to.

Clause 7 accordingly ordered to stand part of the Bill.

Clause 8

Offence of illegal working

[Keir Starmer]

I beg to move amendment 68, in clause 8, page 5, line 6, after “if”, insert “without reasonable excuse”

To provide for a defence against the offence of illegal working.

We have reached an area in the Bill on which there is greater disagreement. We welcome the provisions that bear down on employers who exploit employees. That is in keeping with our welcoming of the director of labour market enforcement. However, we have considerable difficulty with the notion of creating an offence that can be committed by employees, which is strict and without any defences.

I begin by drawing the Committee’s attention to the baseline evidence from the Migration Advisory Committee 2014 report, which makes a number of comments pertinent to clause 8. It says:

“The combination of non-compliance and insufficient enforcement can lead to instances of severe exploitation, particularly of vulnerable groups such as migrants.”

That same 2014 report records the Committee’s research on labour market exploitation of migrant workers in particular:

“We were struck on our visits around the country by the amount of concern that was expressed by virtually everyone we spoke to about the exploitation of migrants in low-skilled jobs…The TUC told us that migrants, particularly from lower income EU accession countries, are often likely to take up low-skilled work, partly due to the nature of the labour market but also due to the labour market profile of such migrants.”

A little later the report says:

“During our visits to places which had experienced relatively high levels of migrants the point that migrant workers are more likely to be exploited than resident workers as they are not aware of their rights and are afraid they may be sacked/evicted/deported if they complain was raised on a number of occasions.”

The Committee cites its meeting with the Equality and Human Rights Commission, which

“expressed the view that migrant workers, and especially agency workers, were more likely than resident workers to put up with poor working conditions and bad treatment by employers because they were not aware of their rights, they do not know who to complain to and are scared that if they do complain they could lose their job. The EHRC said it is often better for a migrant to be in the UK with a job, albeit a low-paid one, than in their home country without a job.”

--- Later in debate ---

[James Brokenshire]

To understand the hon. and learned Gentleman’s logic and thinking, is he arguing that some offences that already exist for people who have entered the country illegally should be done away with? If I follow his line of argument, he is saying that any criminal offence is problematic and should not be there.

[Keir Starmer]

I am grateful to the Minister for that intervention. No, I am not going that far. Those offences are on the statute book. They are much wider than offences in the working environment. I am starting from the proposition that this group of people has been recognised as the most vulnerable and exploited in the workplace, and the least likely to be able to come forward and explain what has happened to them.

The Minister raises a different point, which is that it is often thought—I certainly think this—that new criminal offences should not be introduced in legislation unless there is a clear need for them and there is a gap in the current enforcement mechanisms that the new offence is intended to fill. For many years, there was criticism of Governments for simply introducing criminal offences as a response to a non-problem when there was no evidence of the need for the offence. This is an example of that. As we heard in evidence last week, the problem is the low likelihood of intervention, inspection or any enforcement action. There is no evidence that this offence, for employees, is needed. There are existing offences with which they can be charged. In those circumstances, the clause fails the fundamental non-immigration test that we should not be legislating to introduce offences when there is no evidence that the offence is needed because there has never been any evidence of a case where action could not be taken because the offence did not exist.

[James Brokenshire]

Following what the hon. and learned Gentleman is saying about offences, it seems that his principal point is about those who are vulnerable coming forward. That takes us into broader issues on the national referral mechanism and some of the steps we have taken through the Modern Slavery Act to shine a light. Our focus needs to be on those broader issues—if I have followed the line of his argument—on helping people to come forward. This offence would not have the impact that he is suggesting, because of all the other inhibitions about those who may be enslaving people and putting them in fear. Rather, we need to tackle the broader themes and help people to come forward, which is what the Government and Members across the House have rightly focused on.

[Keir Starmer]

I am grateful to the Minister. Of course, any measures to give people the confidence to come forward should be pursued. There would be general agreement about that—in particular, in relation to some of the offences we have been discussing. However, adding an offence when there is no evidence that it is needed simply makes a bad situation worse. If the Minister has evidence that anybody at all has ever said, “The problem here is that we haven’t got an offence for the employees”, I have not seen it and it has not been set out in any great detail.

--- Later in debate ---

[James Brokenshire]

I hear the point that the hon. Lady is making, although I do not want to get into the specifics of the case, as I am not entirely familiar with it, so it would not be appropriate or fair, for her or myself, for me to do so. In many cases, however, there is that choice of leaving the country. She might want to make a broader point about assisted voluntary returns and other means of appropriate removal, but that is the context for my arguments about the purpose of the clause and how it fits with other measures in the Bill to support the approach of discouraging people from coming to this country and to deal with some of the broader impacts of illegal working.

[Keir Starmer]

rose—

[James Brokenshire]

I will give way to the hon. and learned Gentleman, but I hope that the Committee will then allow me to articulate some of the broader issues that will help our debate.

[Keir Starmer]

I am grateful. The Minister talks about illegal wage undercutting. Professor Metcalf rightly said in his evidence that if more rogue employers were brought to task for exploitation, it would reduce illegal wage undercutting and unlock wealth creation by legitimate business by releasing them from unfair competition from exploitative rivals. We need to bring rogue employers to book for all the reasons that the Minister has set out, but our central point is that if we are to achieve that, it will be important that those who are being exploited feel able to come forward.

The evidence to date is that even for documented individuals, there is a huge problem, which I think is generally accepted. The next proposition—it will be interesting to know whether the Minister disagrees with the proposition—is that while we have a bad situation for documented workers, it is likely to be far worse for undocumented workers. What assurance can the Minister give that the accepted bad situation will not be made worse by these provisions and that, in the end, the goal of bringing more rogue employers to book will not be lost?

[James Brokenshire]

The hon. and learned Gentleman, perhaps understandably, given his perspective, is fastening on to this issue without looking at the broader context that I outlined. We can have a broader discussion about the national referral mechanism—we had such debates during our consideration of the Modern Slavery Act 2015—and elements that inhibit people from coming forward. More direct control is likely, as the hon. Member for Sheffield Central highlighted, because this is a complex arena. A debt bonder may wish to impose a number of different conditions and restrictions may be put in place. That goes to other issues such as confinement and the challenge of removal, rather than the legal issues that we are highlighting today.

I want to develop a point that I started in interventions on the hon. Member for Sheffield Central. Home Office immigration enforcement’s normal response, when it encounters illegal workers with no permission to be here, is to try to remove them from the UK as quickly as possible, which has to be the right approach. Action is also taken against non-compliant employers in the form of civil penalties or prosecution. We will come on to that in the next clause, although a strict liability approach is taken against employers under the civil penalty arrangements, so the prosecution element is added to that. That remains the right approach.

--- Later in debate ---

[James Brokenshire]

The hon. Gentleman makes an interesting point, but as he will well know, one challenge that we have faced is understanding overstaying, which was why we introduced exit checks at the start of this year to identify more clearly patterns of behaviour, sectors and other elements that are relevant to those who are not overstaying the leave granted to this country. He asks me for information that is not currently held, and it is equally difficult to estimate the size of the population who are working illegally. I am sure that the labour market enforcement director will consider that when he examines the size of the problem in his reports to Ministers, but that does not undercut what immigration enforcement representatives say to me about the gap in the existing legal framework.

We need to ensure that there is an overarching approach on criminal law and, as I have said, there is a criminal aspect of people entering the country illegally. We are creating an additional offence for those who are overstaying, who are not covered by the existing criminal law. That means that they are not subject to proceeds of crime legislation, which is having the negative impact about which we have heard.

I share the concerns of the hon. and learned Member for Holborn and St Pancras about ensuring that an offence is used when circumstances suggest that it is the right approach. However, it is important to remember that individuals with an irregular immigration status will have committed a criminal offence under existing legislation by coming into the UK in the manner that I have described, regardless of whether they are working. Therefore, I do not accept arguments made about how the criminal law, or an extension to it in the form of the offence we are discussing, will make the situation more difficult, as has been suggested. However, there are some important points to which I want to respond, including what the hon. Member for Rotherham said about slavery and existing offences under the Modern Slavery Act 2015. She served on the Modern Slavery Public Bill Committee, so she understands these issues.

[Keir Starmer]

Will the Minister give way?

[James Brokenshire]

If I may finish this point, I will be happy to give way to the hon. and learned Gentleman.

The provisions of the Modern Slavery Act aim to encourage victims of modern slavery to come forward and give evidence, and to provide them with the confidence to do so, without fear of being inappropriately prosecuted or convicted. However, section 45 was carefully drawn to avoid inadvertently creating a loophole through which serious criminals could avoid justice, such as if they had been a trafficking victim at one point, but eventually became a member of an organised crime group and, motivated by profit, victimised others. There is always a balance to be struck, as was the case when framing the defence under section 45, and that balance applies to the defences that will operate under the Bill. This issue needs to be seen in that context.

As the hon. Member for Rotherham will understand—I know the hon. and learned Member for Holborn and St Pancras understands this, given his experience—the statutory defence acts as an additional protection on top of guidance from the Director of Public Prosecutions on whether prosecution is in the public interest. It is also in a court’s powers to stop an inappropriate prosecution for abuse of process. Although we need to think about the relevant section of the Modern Slavery Act, it is also important to bear in mind the DPP’s guidance. The normal decisions that the Crown Prosecution Service takes are equally relevant to these issues.

I said that I would give way to the hon. Member for Blackburn, so I will; I apologise for not doing so sooner.

--- Later in debate ---

[James Brokenshire]

As I have said, the primary response will be to seek to remove people from the UK. We judge that the offence will be helpful in particularly serious cases in which there may be aspects of culpability or links to organised crime, so it gives us an important additional mechanism. Given that the hon. Lady wants additional sanctions against and more punishment of employers, I hope she will welcome clause 9(2), which provides for an increase in the punishment for employers.

[Keir Starmer]

I have two quick points. As I understand it, the Minister is saying that for the vast majority of cases in which other offences have been committed, the policy will remain as deportation rather than prosecution—that is a pretty long-standing position. For that class of individuals, the Bill therefore adds absolutely nothing, except to the unlikelihood of people coming forward. The new offence is in fact designed to tackle a smaller number of individuals—the numbers are unknown—who might not fit within that category of “deport not prosecute”, so as to get to any proceeds. The new offence is being introduced to crack that particular nut. My second point—

[The Chair]

Order. As we are trying to do this properly through interventions, why not sit down for a minute and then you can intervene again with your second point?

[James Brokenshire]

To respond to the point on proceeds of crime, the Government are committed to taking robust action to prevent illegal working. In our judgment, the current situation encourages illegal migrants to come to the UK, and those who are already here to overstay their leave and remain in the UK. We are clear that working without permission should be an offence that has consequences for an immigrant’s earnings. It is unfair if firms are undercutting their competitors through exploitation and the use of illegal labour. The Government will have the ability to seize cash sums and, as the hon. and learned Gentleman will know from other provisions of the Bill, that may have implications for bank accounts. The way in which powers could be used operationally in various contexts is a thread that goes through the Bill. Some of the unlawful proceeds that are being derived can be actioned through various mechanisms in the Bill.

It is important that we are closing a gap and sending out a clear message on the implications of illegal working. I underline the core element behind the Government’s focus, which is to deport and remove those with no entitlement to be here.

[Keir Starmer]

I want to move on to the question of defences and the guidance that the Director of Public Prosecutions may issue. I am not concerned about the defence under the Modern Slavery Act—we had that exchange earlier and I understand the position—but the wider point of when that defence is unavailable. There is no defence of reasonable excuse in the Bill, so the individual in the example I cited earlier, who may not know that their leave to remain has ceased to have effect but therefore becomes a criminal, has no escape route. Does the Minister accept that in such circumstances it is not right to leave it to the DPP’s discretion? In other words, should not the DPP’s discretion be exercised according to the known offence and known defences? If there is a case for a defence, that ought to be in the Bill, rather than left to the discretion of the DPP. That is not to suggest that discretion does not operate in many cases, but if there is a proper case for having a defence, it ought to be for Parliament to write that into the Bill and then for the DPP to exercise discretion as to how it operates in individual cases. The alternative is the DPP effectively introducing a back-door defence, which has not been thought to be an appropriate use of guidelines.

[James Brokenshire]

First and foremost, I underline the point that, for those who are in the country unlawfully, the priority will be to see that they are removed. That is the first line of approach that immigration enforcement would take. Secondly, the use of the DPP’s guidance makes it clear that it is generally not in the public interest to prosecute an adult victim of slavery or trafficking where the crime they committed was a direct consequence of their slavery or trafficking situation and they were compelled to commit the crime.

A wide debate took place prior to the Modern Slavery Act as to whether that was sufficient in its own right or whether additional provisions were required. There was an extended debate between the non-governmental organisations, the DPP, the Crown Prosecution Service and policing. On balance, it was judged that the further defence provided in section 45 was appropriate. However, guidance can be provided on what is in the best interests of justice in that determination. Clearly, this will be a matter for individual cases, but, as I have already indicated, the primary approach that we want to take in respect of people who are here unlawfully is to see that they are removed.

The offence is to strengthen the message that the Government and the country send. Also, we want a method of dealing with serious or significant cases where an individual may be seeking to absolutely frustrate the system. The offence can be seen as an appropriate and effective tool in the work of immigration and enforcement in conducting their work. I suspect there will be a point of difference between us on that and it may be for the Committee to express its view on the issues, rather than to try to suggest there is not a difference of opinion when there is.

All victims, regardless of their involvement in criminal activity, are entitled to the same level of protection and support through the national referral mechanism and are assessed against exactly the same criteria. Support is tailored to each individual’s need and can include accommodation or outreach support and access to medical, legal and psychological support. As many hon. Members will know, the Government fund the Salvation Army to provide that service through a network of specialist charities across England and Wales.

On the point about whether the measures will strengthen the hands of the exploitative employer, as has been postulated, that is precisely why we are taking tougher action in the rest of the Bill against employers who exploit illegal labour. We are changing the knowledge base required in relation to the subsequent offence, as well as strengthening the approach to enforcement through the creation of the new role of director of labour market enforcement. Where employers repeatedly flout the law, we propose to use new powers to close their business premises and apply special measures as directed by the courts. Again, it is about the broad context.

I know that traffickers and those involved in such criminality are insidious in some of the techniques that they use. They use a wide range of techniques to exploit their victims, including debt bondage, physical force or threats to put victims in fear. There is no way entirely to stop traffickers misleading victims about what will happen if they come forward; they will often use such direct tactics to intimidate. The Government are making identifying and protecting victims of modern slavery, and giving them the confidence to come forward, fundamental to our modern slavery strategy.

That is why the Modern Slavery Act introduced the new statutory defence for victims who commit crimes due to their exploitation. Last year, the Home Office set up a modern slavery helpline and website and ran a national television campaign, with which many people will be familiar, to reach out to victims and encourage the public to report suspected modern slavery. In many cases, it is happening under our noses, in our communities and across our country.

As I have consistently said during my involvement in the initial preparation of the Bill, we must shine a light into those dark places, to see what is there in plain sight but is somehow unseen by us. That is the reason for the practical implementation of the Modern Slavery Act and the work that we are doing through a number of measures through the commissioner. It is about raising awareness and knowledge within law enforcement, so that the signs of slavery can be spotted and victims given the support that they need. That includes setting up specialist teams at the border to identify and protect victims when they enter or leave the UK. We are taking a multi-faceted approach in a way that has not been undertaken before. That is not a partisan view; good work has been done across the House on confronting modern slavery, and I welcome the contribution made to that work by numerous Members over an extended period.

Because of all that complexity and the elements that I have highlighted, I am simply not persuaded that the proposals make the situation worse in the manner postulated. As has been said, it is often those with the right to be in this country who are held here and kept in appalling conditions. We want to shine a light on those dark places from which they cannot escape, often physically, due to the manner in which they have been enslaved. That is precisely the reason for raising understanding in law enforcement and more generally across the population of this country, in order to deal with these issues when they become apparent. I know that I should refer to the contribution that you have made over a number of years, Mr Bone, to get us to a position in which we can have this debate with much greater understanding of the issues concerned. It is significant.

I see the issue in the broader context of what we are seeking to achieve in the Bill in terms of dealing with labour market exploitation, but I do not see that as inconsistent with the important work that we have done and will continue to do to confront slavery, traffickers and exploitation, and to go after those causing human misery in our country. I am proud to be part of a Government who take these issues seriously and are seeking to make a difference in that way.

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[Keir Starmer]

I beg to move amendment 67, in clause 9, page 7, line 6, leave out subsection 1 and insert—

“(1) In section 21 of the Immigration, Asylum and Nationality Act 2006 (offence of knowingly employing an illegal worker), delete subsection (1) and substitute—

(1) A person commits an offence if he knowingly or recklessly employs an adult subject to immigration control, where—

(a) this adult has not been granted leave to enter or remain in the United Kingdom, or

(b) this adult’s leave to enter or remain in the United Kingdom—

(i) is invalid,

(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or

(iii) is subject to a condition preventing him from accepting the employment.”

To adopt a test of recklessness rather than negligence for the offence of employing an illegal worker, so as to avoid discriminatory employment practices by employers.

I can be relatively brief. The extension of the offence has been advanced on the basis of the need to deal with repeat offenders, but there is nothing in the Bill that requires an offender to have already offended before the new test is applied. Therefore, it is applied more generally. In our submission the right approach is to move to a position of recklessness rather than negligence for fear of the default position of employers, which could be discriminatory in its effect.

[James Brokenshire]

As the hon. and learned Gentleman says, the amendment seeks to avoid discriminatory practices by employers through adopting a test of recklessness for the offence of employing an illegal worker. The Government’s intention of using the “reasonable cause to believe” test is to make the current test more objective and easier to prove. It is intended to capture those employers who have wilfully turned a blind eye to someone’s immigration status.

It must be emphasised that the test of “reasonable cause to believe” is not the same as negligence, as the hon. and learned Member for Holborn and St Pancras will well understand. The intention is to continue to apply the civil penalty sanction to those employers who are simply negligent; that is to say, those employers who act without reasonable care and skill in terms of not checking a person’s right to work, or not doing so correctly.

We judge that introducing a test of recklessness would not assist in increasing the number of prosecutions of those employers who flout the rules on illegal working. It would remain a subjective test and would require proof that the employer foresaw a risk that the person had no right to work, yet went on to take that risk and employ them. It is precisely the difficulties in establishing the state of mind of the employer that the Government are seeking to address in the Bill, by introducing an objective element to the test. Having “reasonable cause to believe” will capture circumstances in which an employer wilfully turns a blind eye to anything that would give them reasonable grounds to believe that the employee has no right to work.

In addition to being more difficult to prove, a test of recklessness would also potentially go too wide and be more likely to lead to discriminatory behaviour, which the amendment seeks to avoid. In our judgment, the Bill’s test that the cause to believe must be a “reasonable” one strikes the right balance between making the offence easier to prove and guarding against discriminatory behaviour.

I do not believe that the test of “reasonable cause to believe” will encourage further discriminatory behaviour on the part of employers, because they are already required to undertake prescribed right to work checks to establish a statutory excuse in the event of illegal working. That does not change.

The Secretary of State has published a statutory code of practice on avoiding discrimination while preventing illegal working. If an employer is simply negligent, they will be dealt with under the civil penalty scheme. What we are changing is our ability to prosecute those employers who choose not to undertake the necessary checks because they have reasonable grounds to believe that such checks will reveal that the employee has no right to work. That is in addition to our intention to continue to prosecute those we can show actually know that someone has no right to work— which is where we largely sit currently—as we can do now under the current wording of the offence. Obviously, however, it inhibits and limits that sense of having to prove the knowledge of the employer in those circumstances. That is why the change has been brought forward.

Having given that explanation, I hope that the hon. and learned Gentleman will feel able to withdraw his amendment.

[Keir Starmer]

I am grateful to the Minister for that explanation and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

[James Brokenshire]

As part of our drive against illegal working in the UK, the Government intend to toughen their approach to employers who deliberately, cynically or systematically use illegal workers. The Immigration, Asylum and Nationality Act 2006 introduced a civil penalty scheme, under which employers of illegal workers may be liable for a civil penalty of up to £20,000 per worker. That remains the principal means of dealing with cases of non-compliance by businesses that negligently employ illegal workers. In 2014-15, 1,974 civil penalties were issued to employers, with a total value of £29.6 million.

The 2006 Act also introduced a criminal offence of knowingly employing an illegal worker, which provides the appropriate response to those employers who deliberately flout the law. The Government believe that we continue to need both the penalty scheme and the facility to prosecute in order to provide a comprehensive and appropriate response to the whole spectrum of employer non-compliance. However, we have concluded that we should take action in this Bill to strengthen the capability to prosecute where employer non-compliance goes beyond negligence or error.

Some employers are deliberately not checking whether their employees have the right to work. They routinely choose not to know, and so cannot be found to be knowingly employing an illegal worker. The new offence will also capture those employers who should have known that the employment was illegal. In addition, some employers are dissolving their businesses and simply creating a new business, in order to evade civil penalties for illegal working. In such circumstances, it is appropriate to hold an individual employer personally to account in their capacity as a company officer, and that can be done by prosecuting the individual for committing a criminal offence. Clause 9 amends the criminal sanction in the 2006 Act to make it easier to bring prosecutions successfully and to increase the maximum custodial sentence that a Crown court may impose.

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[James Brokenshire]

These minor and technical amendments strengthen and clarify the amendments made by schedule 1 of the Bill to the Licensing Act 2003. The amendments to that Act in general build in additional protections against illegal working in the licensing regime governing the sale of alcohol and late-night refreshments. The amendments must be considered within the context of clause 10 and schedule 1 to the Bill.

Amendment 1 requires a licensing authority to notify the Secretary of State—in effect, the Home Secretary—if the licensing authority decides to cancel an interim authority notice where the Secretary of State had notified the licensing authority that failing to cancel the interim authority notice would be prejudicial to the prevention of illegal working.

Amendment 2 ensures that a chief officer of police may take into account whether an immigration civil penalty, for employing an illegal worker or renting a dwelling to an illegal migrant, would undermine the crime prevention objective when considering whether to object to a personal licence application.

Amendment 3 makes a similar provision to amendment 2 where the chief officer of police is notified, after a personal licence has been granted, that the licence holder was required to pay an immigration penalty in the period between the application being made and its being granted.

Amendments 4, 5 and 6 substitute “licence holder” for “applicant”, so that they are consistent with the other amendments to section 124 of the 2003 Act.

Amendment 7 requires a licensing authority to notify the Secretary of State of its decision whether or not to revoke a personal licence where the Secretary of State has served an immigration objection notice under section 124(3B) of the 2003 Act.

Amendment 8 makes consequential amendments to section 10 of the 2003 Act and amendment 9 makes consequential amendments to sections 109 and 111 of the Police Reform and Social Responsibility Act 2011.

Amendment 10 makes transitional provisions, so that the amendments to sections 13, 16, 42, 47 and 120 of the 2003 Act do not apply in relation to applications made, or interim authority notices given, before the commencement of the respective paragraph of schedule 1.

[Keir Starmer]

On a point of clarification in relation to proposed new section 179(1A) of the Licensing Act 2003, as inserted by paragraph 22(2) of schedule 1, I want to ask the Minister an open question. Why is the test there for an immigration officer to enter premises that they have “reason to believe” the premises are being used, rather than, as I think is the case elsewhere in the Bill, that they have “reasonable grounds” to believe that? It may to be align the Bill with other licensing legislation, but on the face of it, that is a much lower threshold than the usual threshold for entering premises, and it is with a view to seeing whether an offence is being committed. This is a genuine, if probing, question.

[James Brokenshire]

I think the amendments are being made on the basis of consistency with other legislation. However, in the spirit in which the hon. and learned Gentleman raised that issue, I will have a look at that point of detail in relation to previous legislation and how this is framed in some of the other tests that are being applied. If there is an issue, I will come back to him.

Amendment agreed to.

Amendments made: 2, in schedule 1, page 51, line 27, at end insert—

‘( ) In subsection (5)—

(a) omit the “and” at the end of paragraph (a);

(b) at the end of paragraph (b) insert “and

(c) the applicant having been required to pay any immigration penalty,”.”

This amendment ensures that a chief officer of police may have regard to an applicant being required to pay an immigration penalty when considering whether granting a personal licence would undermine the crime prevention objective.

Amendment 3, in schedule 1, page 53, line 11, leave out sub-paragraph (3) and insert—

‘( ) In subsection (3)—

(a) in paragraph (a)—

(i) for “applicant” substitute “licence holder”;

(ii) for “, and” substitute “which occurred before the end of the application period,”;

(a) in paragraph (b), after “relevant offence” insert “and which occurred before the end of the application period”;

(b) at the end of paragraph (b) insert “and

(c) the licence holder having been required before the end of the application period to pay any immigration penalty,”;

(c) in the words after paragraph (b), omit “which occurred before the end of the application period,”.”

See the explanatory statement for amendment 2.

Amendment 4, in schedule 1, page 53, line 20, leave out “applicant” and insert “licence holder”

This amendment and amendments 5 and 6 substitute “licence holder” for “applicant” to be consistent with the other amendments to section 124 of the Licensing Act 2003.

Amendment 5, in schedule 1, page 53, line 22, leave out “applicant” and insert “licence holder”

See the explanatory statement for amendment 4.

Amendment 6, in schedule 1, page 53, line 26, leave out “applicant” and insert “licence holder”

See the explanatory statement for amendment 4.

Amendment 7, in schedule 1, page 54, line 7, leave out sub-paragraph (6) and insert—

‘( ) After subsection (5) insert—

(5A) Where the authority revokes or decides not to revoke a licence under subsection (4)(b)(ii) it must also notify the Secretary of State of the decision and its reasons for making it.””

This amendment requires a licensing authority to notify the Secretary of State of its decision whether or not to revoke a personal licence where the Secretary of State has served an immigration objection notice under section 124(3B) of the Licensing Act 2003.

Amendment 8, in schedule 1, page 56, line 24, at end insert—

In section 10 of the Licensing Act 2003, (sub-delegation of functions by licensing committee etc), in subsection (4)(a), in sub-paragraphs (v), (vi) and (x), omit “police”.”

This amendment makes consequential amendments to section 10 of the Licensing Act 2003.

Amendment 9, in schedule 1, page 57, line 17, at end insert—

In the Police Reform and Social Responsibility Act 2011, omit sections 109(9) and (10) and 111(3) and (5).”

This amendment makes consequential amendments to sections 109 and 111 of the Police Reform and Social Responsibility Act 2011.

Amendment 10, in schedule 1, page 57, line 19, at end insert—

The amendments of sections 13, 16, 42, 47 and 120 of the Licensing Act 2003 made by paragraphs 3, 4, 6, 9 and 15 respectively of this Schedule do not apply in relation to applications made, or interim authority notices given, before the coming into force of the respective paragraph.” —(James Brokenshire.)

This amendment makes transitional provision to the effect that the amendments to sections 13, 16, 42, 47 and 120 of the Licensing Act 2003 do not apply in relation to applications made, or interim authority notices given, before the coming into force of the respective paragraph of Schedule 1 making the amendment.

Ordered, That further consideration be now adjourned.—(Charlie Elphicke.)

Immigration Bill (Fifth sitting)

Debate between James Brokenshire and Keir Starmer

Tuesday 27th October 2015 Public Bill Committees

[Keir Starmer]

Obviously, one of the concerns is where the director reports to. I understand the point about the need to report to the Home Secretary as some of the other agencies do. I am trying to explore where we have common ground. The experience in other countries is that merging labour market enforcement with immigration is counterproductive. There is a concern that this is an immigration Bill and therefore there is the potential for that merger. Other countries have experienced a practical problem in exercising the primary function because it has been merged with immigration control and enforcement. Does the Minister accept that there are real examples in other countries of action which started with a good intention but went wrong because it morphed into what was, in truth, immigration control and enforcement?

[James Brokenshire]

I would point to the fact that immigration enforcement—the directorate within the Home Office that is responsible for the enforcement of immigration rules—is not one of the structures that the director has responsibility for. I will cover in turn the point about remit because there is an important aspect to this. When hon. Members have heard what I have to say, I hope that they will understand that the hon. and learned Gentleman’s concern about some sort of merger is not what this is about. We intend the director’s remit to cover labour market breaches, not immigration offences. The director and the enforcement bodies will work closely with Home Office immigration enforcement wherever labour market breaches are linked to illegal immigrants or people working in breach of their visa conditions, but that is an adjunct and not the purpose of the director.

I was asked why this measure was in an immigration Bill. There are two reasons. First, immigrant workers can be particularly vulnerable to exploitation by rogue employers, a point that has been flagged by hon. Members already this morning. I am sure that that will be a continuing theme during our consideration of the Bill. Secondly, by ensuring that workers are treated fairly, we are preventing businesses bringing in cheap labour that illegally undercuts the wages of people already in this country. Good labour market enforcement has knock-on effects.

Modern slavery has been a theme of some of the contributions this morning. With the Modern Slavery Act, Britain is once again at the forefront of the fight against the inhuman crimes of slavery and forced labour—the hon. Member for Sheffield Central and others made comments on this—but it is important to understand that exploitation occurs in many forms and can start with abuse of employment law. We must step in to protect not just the vulnerable—I will address the point about vulnerability—but also local workers and responsible businesses affected by those who are prepared to exploit cheap labour. That is why there is the need for this strategic approach and for the director to work with the different organisations that are in place. This is not a merger, as the hon. Member for Sheffield Central highlighted in his contribution, but rather we have an over-arching strategy of looking at ways in which we can promote good practice.

I would direct hon. Members to the consultation published alongside the Bill to set out some of those details. It says that:

“The Director will lead and co-ordinate work to promote compliance by employers and labour providers with labour market legislation, and to encourage and enable people to report infringements and exploitation.”

We are conducting a consultation at the moment around the director. We look forward to receiving feedback and input so that we are able to reflect fairly and appropriately.

Our employment law framework guarantees decent minimum rights for workers, including from next April the national living wage for over-25s, and promotes fair competition between businesses. The majority of employment law is enforced by individuals taking their employer to an employment tribunal to seek redress if they believe they have been wronged. State enforcement bodies step in to enforce legislation where there is a higher risk of exploitation or vulnerability.

As I have indicated, clause 3 already defines the director’s role by reference to the legislation and enforcement functions that will be within his remit. It makes it clear that the three enforcement bodies for which the director will set the strategy are the Employment Agency Standards Inspectorate, HMRC’s national minimum wage team and the Gangmasters Licensing Authority. We want the director to bring co-ordination across the whole spectrum of breaches of employment law—from employers who do not know the rules right through to organised, criminal exploitation of workers. That will be the director’s broad remit. However, I am concerned about some of the pictures we see of organised immigration crime and organised criminality more generally that seeks to exploit labour markets and uses the front of employment. We are dealing with a broad spectrum, which ranges from vulnerability all the way to good practice and compliance. It is right that the director should have that remit—setting up strategy, commenting on the balance of resources across each of the three agencies and reporting to the relevant Secretary of State.

--- Later in debate ---

[James Brokenshire]

I think that the hon. Gentleman may be straying a little from the specific amendment. He will have seen the clear manner in which the consultation document is set out and the various questions that are being asked about the licensing function in ensuring that that is conducted appropriately, is evidence-based and is used as a tool to prevent exploitation in the highest-risk sectors. I direct right hon. and hon. Members to the relevant sections on pages 40 and 41 of the consultation document, which set that out. Obviously, we will reflect carefully in the context of the feedback we receive around the consultation.

[Keir Starmer]

Before the Minister moves on from that point, he has understandably set out the functions in clause 3(3) that are of primary relevance. I understand that. The purpose of the amendment is to say that, among those purposes or functions, this is the primary one and it is protective. That is the sole purpose of the amendment. His point is that it is not needed in the light of clause 3(3). The concern is that there is no clear reference in the Bill to the primary purpose. The measure comes in an Immigration Bill that, a few clauses on, includes offences of illegal working. Does he understand that, although we do not quarrel with the functions or why he has chosen them, we want to underline what I think is common ground, that the primary purpose is protective? In this environment, and given other international examples, it is helpful for all concerned to have that included in the Bill.

[James Brokenshire]

I think I have already explained that the functions of the director of labour market enforcement are by their nature framed within the context of the various pieces of legislation that the hon. and learned Gentleman set out. I have also explained, as set out in the consultation document, that the measure is about promoting good practice and highlighting issues where employers can equally comply. That is why I responded as I did to a number of hon. Members about the spectrum of activity engaged here.

We are very clear that the purpose of the director of labour market enforcement is to tackle labour market exploitation across the field. We believe this measure will give the stronger drive to deliver that step change in tackling exploitation. The director will have that purpose set out in terms of appointment and, in delivering that, will be accountable to the Home Secretary and Secretary of State for Business, Innovation and Skills.

We also believe that the requirement to publish the strategy and annual report—it will not be a private document but will be visible according to the legislative framework—will demonstrate the clear commitment to protecting the vulnerable and tackling exploitation. That is again why we are clear on the remit, role and function. From a tactical operational perspective—I am sure we will come on to the information hub—that will support the activity.

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[James Brokenshire]

I have already responded to that point by mentioning the vulnerability faced by people who are here through immigration. Equally, the measure can be a means of ensuring that we have a good, regulated labour market that therefore does not add to exploitation, nor encourages people to come here illegally or through trafficking, which is why it sits in the overall framework of an immigration Bill. I hope that I have explained that the purpose and remit of the director is labour market enforcement. The provision is not intended to stray into the separate issues of immigration enforcement, but if cases of people who are here illegally are highlighted, the director would be duty-bound to report that and to pass on intelligence through the hub that is being created. We will no doubt have a separate debate about that when we reach the relevant provisions.

[Keir Starmer]

I am sorry for intervening again. Although I disagree with very little of what the Minister is saying, that last point is a cause for concern. Of course it makes sense for the director to have these primary functions and to co-ordinate with other action on immigration, but the concern is that when we put the two functions together and do not clarify the primary purpose, there will be a misunderstanding about how this works.

We support this good initiative of having a director, but the good work—the head of steam—will be lost if the primary purpose is not clear. People will feel that the measure is, on the face of it, about labour market enforcement, but it carries with it immigration checks and it is in an immigration Bill. What the Minister says makes perfect sense, but that concern is the cause of our discomfort and the reason behind the amendment, which would make the provision much more powerful.

[James Brokenshire]

In many ways, the purpose of a Bill’s Committee stage is to tease out some of these issues, and to get the Minister—in this case, me—to set out and clarify the purpose and intent of a Bill’s provisions. We strongly believe that the Bill gives certainty and clarity about how the director will provide co-ordination.

The measure is about existing agencies that are already carrying out functions. If intelligence is already discovered by those agencies, sharing will already take place. This does not change anything about operational practice; rather, the director will provide strategy, co-ordination and an overarching response. We need good work on enforcement between agencies so that we do not—I do not think we have this, but the provision ensures that that is the case—have a silo-based approach, given that there is an overlap and that we need to look at this as an overall market. Those are the reasons why we do not believe the amendment is required, so I ask the hon. and learned Gentleman to withdraw it.

[Keir Starmer]

As I have already indicated, I am grateful to the Minister for setting out so clearly the purpose behind the director of labour market enforcement. In one sense, there is nothing between us on that. Our concern is clear: this positive development comes in an immigration Bill, yet there is clear evidence from other countries that unless we are clear about the primary purpose of such a measure, we run the risk of losing everything that we have tried to gain.

As I have said, the offences of illegal working in relation to employers and employees are set out just a few clauses later in the Bill. When such measures are together in one Bill, a clear explanation of the primary purpose of the director would cut through a lot of the concern and help that person to devise a strategy that focuses on that primary purpose, rather than other possible purposes. I welcome the comments of the Minister and other members of the Committee, but I will not withdraw the amendment.

Question put, That the amendment be made.

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[James Brokenshire]

I shall be brief, given that we have had quite a wide-ranging debate about the purpose of clause 1. I underline that the purpose of and the rationale behind the appointment of the labour market enforcement director is that the three main enforcement agencies work together. They are well respected, with distinct expertise, knowledge and skills, and collectively they span the spectrum of infringement from the simplest forms of non-compliance to exploitation that may include some form of slavery. There has been a shift in the nature of such exploitation from individual abuses of employment regulation towards organised criminal activity, which is why it is important that we have an overarching response that ensures that we join the work of the bodies together.

To enable the enforcement bodies to address the problem collectively, we have determined that there is a need for greater co-ordination among them, as well as the need for a single set of priorities. We want to ensure that there is strong, effective co-ordination of the three enforcement bodies, but we also want to achieve that with minimal disruption and while avoiding significant structural change.

We believe that the key lies in establishing effective overarching leadership and co-ordination of the enforcement bodies, so the clause creates the position of director of labour market enforcement. The director will lead efforts to tackle abuse and non-compliance in the labour market. As we will debate later, that work will involve setting the strategy for the Government’s work to tackle all types of labour market exploitation, and heading an information hub to enable better sharing of tactical and operational intelligence, as well as to build a stronger evidence base to inform future interventions.

Creating a director provides the greatest scope for achieving the strategic integration of the three enforcement bodies without losing their different specialist skills. It is vital that those skills are retained to deal with not only day-to-day compliance issues, but serious criminality. If the system focused exclusively on either serious exploitation or lower-level breaches, it would not provide the necessary protection for vulnerable workers, which is why we have drafted the Bill in such a way.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clause 2

Labour market enforcement strategy

[Keir Starmer]

I beg to move amendment 57, in clause 2, page 2, line 9, at end insert—

(ia) the threats and obstacles to effective labour market enforcement,

(ib) the remedies secured by victims of non-compliance in the labour market,”

To ensure that the labour market enforcement strategy sets out an assessment of the threats and obstacles to effective labour market enforcements and the remedies secured by victims of labour rights infringements and labour market offences.

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[James Brokenshire]

As the hon. Lady will note from the consultation document, the strategy is about setting out information and issues concerning the work of different bodies and agencies, including some themes of non-compliance. How that feeds into communication, good practice and sharing information is at the heart of the matter and needs to be reflected in the strategy.

Amendments 56 and 59 bring me to the director’s role in setting the resources of the enforcement bodies. It is the Government’s intention not that the director of labour market enforcement decides the budgets of the three enforcement bodies, but that the director should recommend how resources should be allocated within the total envelope of available funding. Hon. Members will be aware that the Gangmasters Licensing Authority is funded by the Home Office, and the Employment Agencies Standards Inspectorate and HMRC’s national minimum wage enforcement teams are funded by the Department for Business, Innovation and Skills. Funding for those agencies is secured via the usual departmental bidding process. While the Government intend that the relevant Secretaries of State will take the director’s proposals on resources into account during the preparation of those bids, it is right that the Government set the overall level of resources devoted to labour market enforcement in the context of the totality of pressures on public spending. I point out that HMRC has increased its budget for enforcing the national minimum wage; for 2015-16, that has increased by £4 million, meaning that the total budget has increased to £13.2 million.

[Keir Starmer]

I do not want to lose the central concern—a concern that gives rise to the amendment and that was in all the evidence, both written and oral evidence given to us last week. The existing agencies have their budgets and their funding. Funding streams will be set by different parts of the Government and different bodies. Although HMRC is an example of where there has been an increase, budgets are being cut. The real concern being expressed across the board is that the resources at the moment for the existing agencies are such that the likelihood of any inspection or action being taken is very low. I am the first to accept that some of the statistics about one visit every 250 years and a prosecution once every million years have to be put into proper context; if it is intelligence-led, that gives a different perspective. I completely understand that, but the point made by independent body after independent body is that the likelihood of inspection and enforcement action is so low that it does not operate as much of a deterrent for most of those who may be involved in abuse of the market. That is a real concern. The Migrant Advisory Committee has been mentioned, but plenty of others charged with overseeing some of these issues are extremely concerned about the resources.

In that context, and understanding that it will not be the director’s role to require resources to be used in a particular way, what assurance can we be given that there will be a shift—a step change—in approach? Without providing the resources necessary to give some assurance to the many people, including Opposition Members, who have raised their voices on this issue, it is difficult to see how the strategy will achieve the desired objective and be the positive step forward that it needs to be. Accepting the constraints and the framework in the Bill, what assurance can be given in response to the powerful evidence about the lack of resources and the limited likelihood of inspection and enforcement action being the real problem, rather than the penalties after the event?

[James Brokenshire]

I would point to what Professor Metcalf said during the evidence session about checks taking place every 250 years. He said:

“I am exaggerating when I say once every 250 years for a visit. Of course, they will do it based on risk.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 21, Q40.]

Our reforms are about enabling better targeting of enforcement activity, to make best use of the resources available and, therefore, to best protect vulnerable workers.

I return to my point about the additional support that HMRC is providing in terms of the national minimum wage. Where the director feels that the overall level of resources available has had an impact on delivery of the strategy, he or she will be able to say so in the annual report, which is laid before Parliament. That report can be redacted only for reasons of national security or the safety of any person in the UK, or if an investigation may be prejudiced, so it would be open to the director to make any comments.

It is right that, overall, the director is able to prioritise between the different agencies, while the envelope must reside within Government. We are having to make savings, and that is well recognised across the House. We have to deal with the deficit and a number of other issues, which I will not rehearse in this Committee. This is about being more effective and about using collaboration and co-ordination to step up our response. Amendment 59 is therefore unnecessary, as the director would be unable to restrict or reduce the resources allocated to labour market enforcement functions overall.

Amendments 65 and 66 would extend the director’s remit. The enforcement bodies and pieces of legislation that should be included are those relating to workers who are most at risk of infringement of their labour market rights—workers on low pay, those engaged through agencies or those working in sectors deemed at high risk. They are most likely to be vulnerable to abuse by unscrupulous employers. The amendments would include other areas of state enforcement—namely, health and safety and the protection of child workers. We do not agree that those should be within the director’s remit, and I will explain why.

The Health and Safety Executive, the Health and Safety Executive for Northern Ireland and the health and safety functions of local authorities play an important role in ensuring that risks to health and safety are properly managed in a worker’s place of work. That is a wide responsibility; some of the requirements that those bodies enforce relate to labour market and employment rights, and others to different types of risk, from the storing of chemicals to the training necessary to operate machinery.

We want the director to remain focused on enforcement of the most relevant employment rights. The current way in which the Health and Safety Executive and the Health and Safety Executive for Northern Ireland use their specialist expertise to set their strategy is best placed to protect workers from workplace hazards. However, we are consulting on information-sharing powers for the director. Those will include the ability to share information with other enforcement bodies, including the Health and Safety Executive and local authorities. That will enable all enforcement bodies to take a shared view of risk, and that is the right way to approach the issue.

Similarly, the Children and Young Persons Act 1933 provides protections for those younger than 18 who work. It covers a range of scenarios, from very young children who may act or model, to older children who take a job in the school holidays. While the protections that it affords can be seen as employment rights, they are fundamentally about protecting children and their health, wellbeing and education. That naturally fits with local authorities’ other responsibilities towards children and young people. We do not believe it would be in the child’s best interest to separate this piece of legislation and enforcement and have it within the remit of the director. We think that local authorities are best placed to know the particular risks in their areas. As I have indicated, the sharing of information and intelligence is the most effective way in which the provisions in the Bill can contribute to that important work.

--- Later in debate ---

[James Brokenshire]

We have today announced an extension to the consultation period. It was originally due to close at the beginning of November, and it has been extended by about four weeks—I can come back to confirm that. I want to ensure that we get the provisions right on some of these detailed points. The consultation may inform later parts of the Bill. Our judgment is that we should ensure that the consultation is framed to get the right responses from those actively engaged at the front end. That is why we have announced a time extension, which I believe will be welcomed by the different sectors.

There were comments about redefining the term “worker”. The clause and the proposed amendment do not redefine “worker” for the purposes of the Employment Agencies Act 1973, the National Minimum Wage Act 1998 or the Gangmasters (Licensing) Act 2004. The coverage of those respective Acts continues to apply. That means that the Employment Agency Standards Inspectorate and the GLA will still tackle non-compliance by employment agencies, businesses and gangmasters, regardless of whether the affected workers have the right to be or to work in the UK.

We see the director as being focused on improving the way we enforce labour market and employment law rules. The Bill is not about extending labour protections to illegal workers, and we think that the director’s focus should be on making sure that workers who are properly here are better protected.

However, we are committed to tackling serious crimes against individuals, whatever their status. We have set out in the modern slavery strategy and the Modern Slavery Act 2015 enhanced powers and an improved approach to tackling slavery and human trafficking, whether victims are trafficked for sexual exploitation, exploitation involving criminal activity or indeed labour exploitation.

That is why we have implemented life sentences for modern slavery offences, new preventive orders to stop harm before it takes place and improved protections for victims such as a statutory defence. We see an important but specific role for the director in supporting this crucial work. The director’s remit includes modern slavery offences where they are committed against a worker or person seeking work, or where a person is subject to slavery, servitude or forced or compulsory labour. We are also consulting on additional powers for the Gangmasters Licensing Authority to include tackling such offences in their proposed enhanced enforcement role. I draw Members’ attention to that.

We think the balance is right. The director’s role is focused on workers who are here legally, although he can include in his plans action against forced labour as well. Trafficking people from around the world to work in brothels in the UK is an absolutely unacceptable crime, but we judge it is right for the director of labour market enforcement to tackle those aspects that are within the remit outlined in the Bill.

[Keir Starmer]

I wish to understand what the Minister has just said, because it is a concern in relation to the amendment. Is the Minister saying that an amendment along the lines of amendment 64 is simply unnecessary because the individuals will be fully included within the protection, or that, contrariwise, they are not fully included, but that hopefully the strategy will include action that would protect all workers in the broader sense? To be specific, is it that amendment 64 is simply not required and is a misunderstanding of the definition or limitation, or is there a broader point? It is quite important.

[James Brokenshire]

I think it is the latter of the two points that the hon. and learned Gentleman has articulated. We think it is covered by other means, but, for the purposes of defining the specific role, it is about lawful entitlement to be within the UK. For the reasons that I have outlined, there are other mechanisms and ways in which the issue is being addressed. It is about labour market enforcement and the lawful upholding of existing legislation. The amendment appears to take us in a direction that would apply new rights to those who are here illegally, whereas there are other mechanisms through the linkages, through the rights that the Gangmasters Licensing Authority will have, and through the consultation. It is about the extension of those aspects through other means. That is why I made the point about the specific role for the director in supporting this crucial work through a different mechanism, through the work that the Gangmasters Licensing Authority will take forward. The role concerns the lawful upholding of existing labour rights, rather than the extension of those rights, which the amendment appears to suggest. That is why we have not found the amendment attractive.

The director’s role that we have proposed supports our wider strategy on modern slavery, enhancing the response to labour exploitation. Crucially, it should not confuse or undermine the responsibility of the National Crime Agency and the national policing lead to lead the operational law enforcement response to modern slavery, overseen by the independent anti-slavery commissioner. Where an illegal worker is a victim of modern slavery, appropriate support mechanisms are available to them via the national referral mechanism. Their status as a victim will be reflected in how they are subsequently treated by the immigration system, including the relevant reflection periods during which the person will be granted leave to remain. There are also crucial protections within the criminal justice system, which we will come to later.

Amendment 62 seeks to specify the content of the director’s annual report in the same way as amendments 57 and 58 did for the director’s strategy. I do not propose to repeat the same arguments that I made in respect of the earlier amendments, but I want to be clear that this amendment is unnecessary.

Clause 4 as drafted states that the annual report must include:

“an assessment of the extent to which labour market enforcement functions were exercised in accordance with the strategy”.

As we expect the director’s strategy to propose how the enforcement bodies should tackle non-compliance, seek remedies for victims and overcome obstacles to compliance, it follows that the director’s annual report will set out how successful the enforcement bodies were at doing exactly these things.

Immigration Bill (Second sitting)

Debate between James Brokenshire and Keir Starmer

Tuesday 20th October 2015 Public Bill Committees

[Keir Starmer]

Q 120 May I ask the panel—but I think probably Mr Lambert and Mr Smith in the first instance—about the provisions in the Bill dealing with the duties on landlords to carry out checks before renting to, or allowing premises to be occupied by, a person without the right immigration status? Do you have concerns about those provisions, from the perspective of the landlords, and do you have any comment about the concern of others that there could be a default position leading to discrimination—in other words, landlords being so concerned, because it is a complicated exercise and they are not entirely sure what they are doing, that it is easier simply to default to a position where you rent to somebody who is pretty obviously British, or who has a British passport?

David Smith: We have four areas of concern, so yes to your first question and, actually, yes to your second as well, but in a different way. We are concerned about the speed with which the second Bill has been brought forward when the first Act, the Immigration Act 2014, is not fully in force. It was announced only two hours ago that the pilot that has been evaluated in the west midlands will be rolled out across the country from 1 February. That pilot was held by the Immigration Minister to be a success, so we are not clear why there needs to be a set of criminal provisions on top of civil fines, which are, apparently, already effective. We would urge Parliament to take its time as it goes through implementation of the changes.

We are concerned about document discrimination—so not so much discrimination on grounds of nationality as discrimination on the grounds of people not having passports. Having a passport is far and away the simplest way to check somebody, so we are concerned that landlords, rather than just discriminating against people, will simply take the path of least resistance, especially as more pressure, potentially, is applied to them, with the possibility of ultimately going to jail. Indeed, I note from the evaluation that was published a few hours ago that one example was given, by one of the interviewees, of a situation of somebody without a passport being refused accommodation. So we are concerned about that.

We are concerned about the way in which the offences come into effect. The way the Bill is drafted, as soon as the Secretary of State has served a notice informing a landlord that they have illegal immigrants in their property, they are immediately committing the offence of having illegal immigrants in their property. It takes 28 days before you can possibly evict those people, so there are 28 days during which they are committing an offence. It has been suggested to us that the Home Office will not seek to prosecute, but it would seem to me that the only person who could give such an assurance is the person who is now filling your old job, Mr Starmer, at the CPS, the prosecuting body.

It would also be normal with offence of this type to have a provision that says that a landlord can establish a reasonable excuse—for example, if they have been severely ill or something like that—and that provision is not there.

The last thing is the air of confusion about two aspects in particular. First, the helpline has been described as a helpline, and was stated as such the other day. However, it has also been described to us as only being there to check for asylum seekers and people who do not have documentation. We would like to know which it is, and whether it will be fully funded as a helpline, so as to be effective.

The other thing that is notable from today’s announcement is that the provision is to be rolled out from 1 February, but it is not clear whether it will only apply to new tenancies commencing on or after 1 February, because it has also been stated to us in other meetings that it may apply to tenancies that are already in place on 1 February. It would be very nice to have some clarity on that, because it would be an extremely serious problem. I see that the Immigration Minister is shaking his head, which may give me the answer to that question.

Richard Lambert: We have concerns about placing this kind of responsibility on landlords, who are not trained for it and are not familiar with it. However, we have taken the view that we have to try to make sure that if this system is going to be introduced, it is as straightforward and practical as possible for landlords to operate. That has been the level of our discussions with the Home Office and other agencies throughout the past year, since the previous Act was introduced.

On concern about discrimination, we were probably more concerned about discrimination when the original policy was announced, or at least I was more concerned at that time than I am now. That is partly as a result of my going round and talking to local landlord meetings, as I do regularly. Rank and file landlords in our organisation are very worried about this issue, and those outside the pilot area are more worried than those inside it. One of the things that really comes back to me is, “How will we be able to tell if somebody is British? You can’t just look at them and say they are British. You can’t see their name and say whether or not they are British. In this day and age, you can’t even listen to their accent and say whether or not they are British.” So what we find is that landlords are moving towards the assumption that, in the same way that employers now tend to check all identities regardless of nationality, landlords will check identification, to make they cover off this particular aspect.

[James Brokenshire]

Q 121 I thank our witnesses for giving evidence this afternoon, and I also thank the relevant landlord bodies for their participation in the round-table sessions that we have had and will continue to have throughout the detailed implementation of the Bill.

I want to come on to one of the parts of the Bill that relates to the termination of tenancies. When landlords discover someone who is in the country illegally, they will be able to resolve that issue in a speedier fashion through the landlord and tenant legislation. Would that be welcomed by the sector?

Richard Lambert: Most definitely. Our big concern about the initial Act was what would happen once a landlord found they had a tenant who no longer had the right to rent, or who they thought had the right to rent but turned out not to have it. How could the landlord end the tenancy as quickly and as cleanly as possible, without necessarily getting into the whole court process? One of the problems with a court process is that it can be very protracted, yet the landlord is in the position of having committed an offence.

What we wanted to see was a process that moved that forward as quickly and clearly as possible. The provision in the Bill whereby the Home Secretary issues a notice once the Home Office has been informed that a tenant no longer has the right to rent achieves that. We have some concern about a power that has always been with the courts moving over to the Executive, but that is a constitutional principle for Parliament, ultimately, to decide. For our purposes, and looking at the practicalities, the power should work effectively.

David Smith: There are a couple of different points to make. First, it is generous of you to put in a provision to allow eviction of Rent Act tenants, but it is possibly not entirely necessary, as Rent Act tenants will have lived in the UK for so long that they are almost certainly entitled to stay here anyway, irrespective of how they entered the country.

The other part of it that I am a little bit more concerned about is with relation to assured shorthold tenancies and the power you have put in to evict. As I read it, it would still require an amendment to the tenancy itself for that power to be exercised, in that ground 7A can only be used inside a fixed term if it is mentioned in the tenancy agreement. So that ground for possession would require a lot of landlords to change their tenancies, which it is obviously their responsibility to do, but there is obviously a substantial piece of education that will need to be done in the sector, which I accept is our responsibility—possibly more than it is yours.

The other point is the issue of transfer of tenancies, so where there is a group of tenants, some of whom are illegal immigrants and some of whom are not, there is a power for the court to transfer the tenancy. The first point is that it is easily got around by simply issuing proceedings for some other ground for possession as well, which is relatively easy to do. The other problem about it is: how will you deal with all the other side bits that go with it—for example, tenancy deposit protection?

If a deposit is registered in one group of tenants’ names and the tenancy is transferred by the court to a different group of tenants’ names, the deposit protection schemes will need to have the deposit re-registered, and something will need to be done to deal with that contractual positon. So I am a bit concerned as to how that will work. In practice, I am afraid the mechanics are a little bit more complex in terms of shifting tenancies around between tenants.

Immigration Bill (First sitting)

Debate between James Brokenshire and Keir Starmer

Tuesday 20th October 2015 Public Bill Committees

[Keir Starmer]

Q 7 Am I right that people may be left destitute on the basis of a decision that is wrong or that needs to be retaken?

Mike Kaye: Exactly right.

[The Minister for Immigration (James Brokenshire)]

Q 8 Mr Kaye, do you agree, in principle, that there should be an ability to take sanctions against people who have no right to be in this country and are frustrating efforts to remove them or not co-operating with a voluntary returns mechanism? Do you accept that principle as a legitimate policy response?

Mike Kaye: Absolutely. We have a system whereby we try to discover whether people meet the criteria for refugee status. It is a very tough measure. You have to prove that you are being persecuted as an individual, that your Government are unwilling or unable to protect you, and that there is no other area of your country that you can go back to and be safe. It is a high measure to prove. I fully accept that if people do not meet that and if that assessment is accurate, they need to return to their home countries.

What I have highlighted is that the measures in the Bill will not help you to return individuals who have come to the end of the process. If you really want to return people at the end of the process, you need to stay in touch with them. Quite often an equation is made between refused asylum seekers and abusive asylum seekers. That is not the case for the vast majority. Last year, the Home Office refused 70% of Iraqis, 70% of Libyans, and 65% of Afghans. I am not necessarily saying that those decisions are wrong. I am saying that you need to understand that those people at the end of the process still have a fear about returning and that is why they do not always co-operate. I take the Minister’s point that sometimes people are not co-operating because they do not want to go home and they should rightfully go home, but for an effective policy, you need to stay in touch with people to encourage them to return voluntarily return or if forced removal is to take place.