Immigration Bill (Eighth sitting)

Keir Starmer Excerpts

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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[The Chair]

Before we hear from Mr Starmer, I just point out that the interventions are quite long. I know that this is a difficult Bill and sometimes they have to be long. I will be understanding on that, but we are on occasion straying slightly wide of what we should be debating, so I hope that, as we move through the Bill, we will be a bit more concise. The courtesy shown by the Minister to the hon. Member for Glasgow North East was very kind, because I can remember an occasion when he was sitting there many years ago and was called the hon. Member for “Brockenshire”.

[Keir Starmer]

I am not sure how to follow that, so I will not even try.

I will respond reasonably swiftly, because there has been much discussion on the various amendments. I can take amendments 71 and 87 together. As I said, they would provide a defence to landlords who are otherwise automatically criminalised. I am grateful to the Minister for saying that he will reflect on the points that have been made, but understandably there is a very strong feeling about this issue in the landlord community. Although this is to foreshadow a debate that we will have, if Government amendments 12 and 18 are passed, that will only increase the anxiety of landlords. For that reason, I will press for a vote on amendments 71 and 87.

On amendment 72, the Minister gave some assurance about how the scheme would work and kindly over lunch provided further assurances about agencies. In those circumstances, I will not press that amendment to a vote. The same goes for amendments 85 and 88, which I will not press to a vote.

The Minister has given some assurance on amendment 89 about the way the Home Office makes decisions when deciding whether to serve a notice on a landlord, but without the amendment there would not be the check that would otherwise come from the court exercising discretion. The degree of assurance that has been given is not enough, in our view. We will want to press amendments, 71, 87 and 89 to a vote.

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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.

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Section 37(4) of the Immigration Act 2014 makes provision for certain references in the Act to a “landlord” to mean any landlord where two or more persons jointly constitute the landlord. This amendment and amendments 14 and 17 amend section 37(4) to give the term “landlord” this meaning in new sections 33D and 33E as inserted by clause 13.

[Keir Starmer]

I beg to move amendment 73, in clause 12, page 11, line 6, at end insert—

“(3) Before implementing measures under subsection (2), the Secretary of State must prepare a report on the likely impact of the measures and lay it before each House of Parliament.

(4) A report under subsection (3) must include:

(a) The likely impact of measures contained within this Section on individuals who have a protected characteristic as defined in Part 2, Chapter 1 of the Equality Act 2010.

(b) The likely impact of measures contained within this Section on British Citizens who do not hold a Passport or UK Driving Licence.”

This amendment would require the Home Secretary to lay a report before Parliament on the likely impact of Clause 12 on (a) minority groups and (b) British citizens without passports or driving licences before the provisions came into force.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 86, in clause 13, page 11, line 22, at end insert—

“(c) confirm that no occupier of the premises is under 18 years of age.”

To provide protection to families with children from summary eviction under these provisions.

Amendment 70, in clause 54, page 45, line 11, at end insert—

“(4A) Section 12 shall not come into force before 1 January 2018.”

This amendment would defer the implementation of Clause 12 until January 2018.

[Keir Starmer]

Thank you, Mr Bone. With your permission, I will take amendments 73 and 86 together. I think amendment 70 is in the name of the Minister. I can deal with these quickly. Amendment 73 is intended to require the Home Secretary to lay a report before Parliament on the likely impact of clause 12 on minority groups and British citizens without passports or driving licences before the provisions come into force. The amendment was tabled because of our analysis of the paucity of the evaluation and the sustained concerns about indirect discrimination.

[The Chair]

Order. I am sorry to interrupt the shadow Minister, but the amendment paper that I have says that amendment 70 is in Keir Starmer’s name.

[Keir Starmer]

My apologies. I was searching for it last night, and now I have found it. I gratefully adopt it, and put it back in its rightful place. Thank you, Mr Bone. I will master these procedures, if nothing else.

To a large extent, we have had the debate on why we say amendment 73 is necessary. It is an impact assessment premised, we say, on the lack of an evaluation that can give the right degree of assurance and satisfaction in relation to indirect discrimination. Amendment 86 is intended to safeguard children’s rights. It is an amendment to clause 13, which we will debate in greater detail, so I will not devote a great deal of time to it now.

The concern about clause 13 is that the process, once it starts, is that the Secretary of State serves notice on a landlord, and the landlord may terminate a tenancy when in receipt of a notice; that notice is then treated as notice to quit, and is enforceable as if it were an order of the High Court. We will debate that in some detail because it is an interesting innovation. The amendment is a limited strike at that measure, because if we are to have such a draconian scheme and children are involved, the process ought to include a safeguard and protection for children—it has almost no safeguards in it. I am sure that we can explore that.

Amendment 70 would defer the start date to 2018 to allow more time to give assurance to landlords and ensure that the scheme can be rolled out in a way that is fair and proportionate and does not lead to discrimination in any shape or form.

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

I would like to discuss some of the wider issues with regard to clause 12 and the right to rent. I will speak specifically to amendment 86, which my hon. Friend the Member for Glasgow North East and I have signed.

Right to rent as it stands is a dog’s breakfast, the implementation of which has been rushed, without any serious consideration or analysis of the west midlands pilot scheme. Therefore, the extensions of the right to rent provisions in the 2014 Act have no factual or evidential basis. Indeed, the only real evidence that we have suggests that the provisions have already caused discrimination and have not achieved their aims. That is not only my opinion, but that of a wide range of people from across many different groups and sectors. Giving evidence last week, Adrian Berry, chair of the Immigration Law Practitioners’ Association, said of the right to rent that,

“there has only been a very modest pilot of that programme in the west midlands. It has not been expanded nationally and here we are, post-general election, with an augmentation of that regime to impose criminal sanctions on landlords and to provide for summary eviction of people who lack a right to rent without protection of the court. We struggle to see what evidence base there is for strengthening a regime that has barely been born.”––[Official Report, Immigration Public Bill Committee, 22 October 2015; c. 106, Q223.]

Landlords and agents are united in opposition to being conscripted into a new second tier of immigration agents. The Committee sat for four eye-opening oral evidence sessions, during which parts of the Bill took a verbal battering. Richard Lambert, who has been mentioned, said:

“We have concerns about placing this kind of responsibility on landlords, who are not trained for it”–-[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 54, Q120.]

His colleague from the Residential Landlords Association, David Smith, said in written evidence that,

“given that, for example, landlords would need to be able to recognise the 404 different types of European identity documents that may be possessed by a tenant…which give holders the right to free movement”,

how can landlords possibly

“be expected to know every legitimate document from every country that proves someone’s immigration status, let alone recognise high-quality fraudulent documents, without proper training and support?”

The RLA has also said:

“Whilst the Residential Landlords Association condemns all acts of racism, the threat of sanctions will inevitably lead many landlords to err on the side of caution and not rent to anyone whose nationality cannot be easily proved.”

All in all, that is hardly a ringing endorsement from those charged with implementing this part of the Minister’s new immigration policy.

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[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.