Keir Starmer
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Immigration Bill (Seventh sitting)
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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—
The Chair
Order. The Minister will be able to sum up and he may be able to clarify some of those points then.
Keir Starmer
Thank you, Mr Owen, and I am guided by that, but in the circumstances, the Minister can see the point that lies behind the new clause. If there is an assurance that that is in any event covered in both circumstances—where the order is simply cancelled and no one gets before the court to confirm it, or it goes before the court and it is confirmed and the court has wide enough jurisdiction to deal with an error—I accept that the new clause is not necessary.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
It is a pleasure to serve under your chairmanship, Mr Owen.
As with the previous clause, we seem to be giving immigration officers too much power without the relevant training or proper judicial oversight. When he gave evidence last week, Colin Yeo was asked whether he was concerned about the powers to be given to immigration officers. He said that he was, “Very concerned”, and said of the chief inspector:
“In a couple of reports from March 2014, for example, he found that immigration officers were granted the power to enter business premises without a warrant in two thirds of cases, without justification; he also found unlawful use of power, ineffective management oversight, major variations in local practice and inadequate staff training across all grades—really serious concerns are being raised. Reports on removals and emergency travel documents are, again, very critical of Home Office management of the process and training. The idea that more powers should be given to people who are already exercising them in a very questionable way is somewhat dubious, in my view.”––[Official Report, Immigration Public Bill Committee, 22 October 2015; c. 107, Q224.]
We received the Minister’s letter this morning and are grateful for that, but will he clarify “reasonable grounds” for those in the room who are not lawyers, which is probably quite a few of us? As things stand, the scope of the closure powers are far too wide.
The Bill proposes that an officer has the power to close an employer’s premises if satisfied “on reasonable grounds” that the employer is employing an “illegal worker”, as defined, and if the employer has been required to pay a civil penalty in the past three years, has an outstanding civil penalty or has been convicted of the offence of knowingly employing an illegal worker or a person whom the employer had reasonable cause to believe was not entitled to work. The initial closure may be for up to 48 hours. The immigration officer may then apply to the court for an illegal working compliance order, which can prohibit or restrict access to premises for up to two years.
Why are such measures required when criminal sanctions are available? What will ensure that the measures are not used in an oppressive manner? Yes, we need action against bad employers who flout the rules, but the consequences are potentially terrible if enforcement gets it wrong. There should at least be proper safeguards, such as judicial oversight. What about the effect on innocent workers and their families whose workplaces are shut down? The Government should think again.
James Brokenshire
I am grateful for all the comments. In response to the initial points made by the hon. and learned Member for Holborn and St Pancras, I refer to the provisions contained in paragraph 15 of schedule 2, as I did when he intervened, in particular sub-paragraph (3)(d) about discretion. I also draw his attention to sub-paragraph (1), which states:
“Subject to sub-paragraph (4), a person who claims to have incurred financial loss in consequence of an illegal working closure notice or an illegal working compliance order may apply to the court for compensation.”
I do not read that as someone having to go through to the order stage. In other words, a notice has been issued, but it is open to seek redress through the court under that provision.
It is also relevant to say that for a mistake to have taken place, the grounds specified in paragraphs 3 and 5 to schedule 2 would equally have not been found to have been made out. That implies that a mistake has been made. Therefore, although I pointed to paragraph 15(3)(d) to schedule 2, obviously some of the earlier provisions would be redolent—for example, paragraph 15(3)(b):
“if the applicant is the owner or occupier of the premises, that the applicant took reasonable steps to prevent that use”.
It all ties back.
Keir Starmer
May I clarify something, if possible? My concern—if this is a misreading, then it is a misreading— is that paragraph 15(1) of schedule 2 gives the power to apply for compensation, and that the circumstances in which the court may order it are in paragraph 15(3). Those are the only circumstances in which it may be ordered. I read paragraphs 15(3)(a), (b), (c) and (d) as conditions that must all be satisfied. I say that because paragraph (d) is not free-standing:
“having regard to all the circumstances it is appropriate to order payment of compensation in respect of that loss.”
The word “that” can only refer back to paragraph 15(3)(c). They are not disjunctive; they are conjunctive. That might just be the way that it is drafted, but paragraph 15(3)(d) makes no sense as a free-standing provision. It must relate back to the others.
Keir Starmer
I beg to move amendment 71, in clause 12, page 8, line 31, at end insert—
“(d) the landlord has commenced action under sections 33D or 33E within two months of becoming aware that the adult mentioned in subsections (2) was disqualified as a result of their immigration status.”
This amendment would provide a defence for landlords who are being prosecuted under Clause 12 if they can show they commenced eviction procedures within 2 months of becoming aware that the tenant was disqualified because of their immigration status.
The Chair
With this it will be convenient to discuss the following:
Amendment 72, in clause 12, page 9, line 37, at end insert—
‘(6) The agent does not commit an offence under subsection (2) or (4) if the agent is also a resident of the property in subsection (1).”
This amendment aims to ensure that co-tenants (who would normally be described as house sharers), who also act as agent, cannot be held liable for their landlord’s contravention of Section 22 of the Immigration Act 2014.
Amendment 85, in clause 12, page 10, line 25, leave out paragraphs (4) to (6) and insert—
‘(4) Sections 33A to 33C do not apply in relation to a residential tenancy agreement or a renewed agreement entered into before the coming into force of section 12 of the Immigration Act 2014.”
To ensure that none of the criminal offences are committed in respect of tenancies entered into (or, in the case of renewed tenancies, first entered into) before the offences come into force and thus to ensure that there is no retrospective element to these criminal penalties.
Amendment 87, in clause 13, page 11, line 33, at end insert—
‘(6A) A landlord does not commit an offence under s 33A 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).
Amendment 88, in clause 13, page 12, line 1, leave out section 33E.
To remove the provision which implies into any residential tenancy agreement that the landlord or landlady may terminate the tenancy if the premises are occupied by an adult who is disqualified from renting because of their immigration status.
Amendment 89, in clause 14, page 13, line 6, leave out “must” and insert “may”.
To provide a court with a discretion as to whether or not 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.
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.
Simon Hoare (North Dorset) (Con)
As is often the case in this place, we seem to be straying into process versus principle. I think that I heard the Minister say that the principle we are discussing had been accepted by the Labour party during the passage of the 2014 Act. Is it simply the process that the hon. and learned Gentleman is now quibbling about, or are his remarks a reversal of that acceptance of the principle?
Keir Starmer
I am not sure that the distinction between process and principle helps here. What led to the pilot was concern from landlords as to whether the scheme was going to be workable. They were concerned that they were going to be asked to carry out checks that they did not understand, with the possibility of a penalty if they got it wrong—at least, so far as they saw it. I appreciate that that is not how the scheme works, but that was their concern.
The deeper concern, across the House and among other groups, was that in such circumstances, as a matter of principle, the scheme might lead to discrimination. The in-principle position is that if what is otherwise a good scheme brings discrimination with it, it is not a good scheme and some other scheme needs to be devised. That is the principle; it is not a process point. That is probably common ground—I do not think that anyone would want to support a scheme that was discriminatory in its effect. Therefore, whether it is, or whether that has been properly evaluated, becomes a matter of real principle, and is not one of process.
Simon Hoare
Correct me if I am wrong—the hon. and learned Gentleman has much greater understanding of these matters than I do—but nothing in the Bill in any way resiles from or seeks to revoke the cadre of legislation that deals with discrimination.
Keir Starmer
I accept that proposition, but it does not take us much further. There are different forms of discrimination. Some measures are directly discriminatory, but can be justified in certain circumstances; others are not intended to be discriminatory and do not cut across other protections against discrimination, but have a discriminatory effect. Concern about that was one reason for setting up the pilot and for making an assessment of discrimination in the evaluation.
We are dancing around the issue. Everyone accepts that if the scheme has a discriminatory effect it should not be rolled out. That was part of the reason why there was an evaluation—there were others, of course. However, that is why all the evaluations of the scheme have focused on whether it has had any discriminatory effect.
Paul Blomfield
The Prime Minister’s observations at the Conservative party conference this year on unintentional discrimination were illuminating on the point that my hon. and learned Friend is making. The Prime Minister rightly highlighted that, although there is a range of law that seeks to prevent discrimination in employment, unintended consequences nevertheless lead to real discrimination. Is it not that lesson, which the Prime Minister was seeking to draw in the context of employment, that concerns us now in the context of letting?
Keir Starmer
I agree with my hon. Friend.
There have been two evaluations of the scheme, one by the Joint Council for the Welfare of Immigrants and one by the Home Office.
Keir Starmer
I will give way again, although I do not seem to be able to get beyond about a sentence at the moment.
Simon Hoare
I am grateful to the hon. and learned Gentleman for giving way again. I hope I am not delaying the Committee, but I am trying to curtail the debate. He is right that there have been two evaluations, including one by the Home Office. I have little or no doubt that he will have noted the fourth bullet point on page five of that evaluation, which states that, despite the differences during rental inquiries, there was no evidence of discrimination. As for the other evaluation, on which he seems to be relying, my understanding on probing is that only 30 people responded to the survey, all of whom had already declared themselves opposed to the proposal.
Keir Starmer
There is no need for any show of surprise on the Government’s Benches. If Members read the transcript of my contribution on Second Reading, they will see that I qualified reliance on the JCWI evaluation by saying that I accepted that it was a small survey. This is not new. I have always accepted that qualification.
I have some remarks to make about Home Office evaluation, and I will come to them in a moment. To put the issue in context in terms of numbers, broadly speaking, one in four families in England rent in the private sector. According to the 2011 census, 16.5% of tenants in the private rented sector did not have a passport. As Richard Lambert told us last week in response to a question from the hon. Member for Norwich North about numbers, he would expect 1 million to 1.5 million new tenancies to be created each year, so a huge number of cases will be affected, before we even get to the extension or retrospective effects that we will consider later. Both the evaluations must be seen in that context. I am not making the case that the evaluation by the Joint Council for the Welfare of Immigrants involved big numbers, but it was carried out.
Simon Hoare
It is my understanding as well that not only is the sample incredibly small, and therefore not to be relied on in any sensible way, but that the question was asked of people who had already declared themselves opposed to the proposal. If one asks people who are already opposed to something, by definition they will answer in only one particular way. Not only was the sample base tiny, it was skewed and prejudiced, maybe even discriminatory against itself.
Keir Starmer
The sample was small, and the findings in that evaluation—I will move on to the Home Office evaluation in a minute—are clear: 42% of landlords said that the right to rent requirements made them less likely to consider someone who does not have a British passport. More than 25% said that they would be less likely to rent to someone with a foreign name or foreign accent, and checks were not being carried out uniformly across all tenants. Opposition was uniform, in the sense that 69% of landlords surveyed said that they did not feel that they should be required to undertake the checks, and 77% said that they were not in favour. They were the landlords surveyed in that evaluation.
Before we move on to the Home Office evaluation, as I said, Richard Lambert told us that he anticipated 1 million to 1.5 million new tenancies a year. The Home Office sample was based on 114 responses from landlords in the pilot area, which is a very small sample, given that more than 1 million new tenancies are created each year. It is a tiny sample. In addition, 67 responses came from tenants, but 60 of those 67 were students, so it is difficult to argue that it is a representative sample. That percentage does not in any way reflect a cross-section of the sorts of tenancy that will be caught by the provisions. It is predominantly student tenants.
Paul Blomfield
To underline that point, does my hon. Friend agree that the Home Office itself has acknowledged the inadequacy of the sample? It says in the evaluation that the survey
“should be read as primarily reflecting the views of the student community, rather than being generalisable to the wider tenant group.”
Keir Starmer
Yes, I do. Those are the Home Office’s words. It is all very well to pick holes in the JCWI evaluation on the basis that it is a small and unrepresentative sample, but when the Home Office itself says, “The sample that we used was not representative of the wider tenant community,” it raises the same questions in relation to the Home Office’s evaluation. [Interruption.]
Keir Starmer
It is also worth pointing out that the Home Office evaluation was a combination of surveys, interviews and a mystery shopping exercise, and, as such, was limited. It was carried out over a short six-month period at a quiet time in the rental market and in a part of the market that is far less competitive than London. There were a number of significant limitations to the evaluation.
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.
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.
Craig Whittaker (Calder Valley) (Con)
Could the hon. and learned Gentleman explain this point? If a landlord had done the proper checks in the first place, surely they would be aware, if somebody had a visa, of when it was about to expire. They would be aware that potentially they have someone in the home who does not have the right to remain.
Keir Starmer
I accept that may be the case in certain circumstances, but there will be other circumstances in which the landlord will not be aware that the person no longer has the right to rent, until they are told by the Secretary of State that that is the position. That is how it is envisaged it will work. In those circumstances, it is impossible to see why a landlord, who then takes the obvious and reasonable step of doing something about it, is criminalised from that point. What is the mischief in having this defence? What is the mischief in saying that someone does not become a criminal if they immediately move to evict once they know? I cannot see any mischief in that.
There may be limited circumstances in the examples put to me, but in others the provision would be manifestly unfair and unnecessary. There is no good reason not to have the amendment.
Craig Whittaker
I wonder whether the hon. and learned Gentleman could give some examples of where that would be the case. I am at a bit of a loss to understand where the landlord would not know, had they been doing the checks as they are supposed to do by law.
Keir Starmer
The circumstance where the Secretary of State takes a decision in relation to leave will be known to the Secretary of State and the person renting but not to the landlord. There will be many circumstances where something happens that has an effect on the right or the status of the individual in this country that the landlord will not be privy to. In those circumstances, I cannot see why it could possibly be fair or right not to have a defence such as this.
Amendment 72 is designed to ensure that agents, as defined in the Immigration Act 2014, who are also tenants of the property are not criminally liable for illegal tenants. The central concern is in relation to groups of individuals who house-share. That is not uncommon for students and others. When they rent, each of them usually has a contract with the landlord, but if one individual moves out, it is not uncommon for the remaining housemates to share responsibility for recruiting a new tenant. The classic example would be the notice on the student union board that says “Room available”, which is put up by the other students who want someone to take the place of the student who left. Under the definition in the Immigration Act, they would become agents, would then be subject to the duties to carry out the necessary checks and would face criminal and civil penalties if they failed to do that in the way envisaged under the Act. Amendment 72 is aimed at that.
Amendment 85 would ensure that none of the criminal offences was committed in respect of tenancies entered into—or, in the case of renewed tenancies, first entered into—before the offences came into force and would ensure there was no retrospective element to these criminal penalties. The amendment would ensure that the scheme is forward looking and not retrospective in its effect. Landlords should understand the checks that they have to carry out and carry them out each time they issue a tenancy, but the scheme should not have retrospective effect.
Can I take amendments 88 and 89 in short form because they go to the question of eviction? Amendment 88 is intended to ensure there is no implied term in the tenancy that the tenancy automatically comes to an end, triggered by immigration status. Amendment 89 is intended to give a court discretion when deciding whether individuals should be evicted. The amendments are grouped under clause 12, but I think a substantive part of the discussion will better take place when we get to the eviction provisions, because, to some extent, they are the tail end of the discussion about eviction. Is that acceptable?
The Chair
Before I call the Minister, I remind the Committee that amendment 89 to clause 14 is grouped with the amendment that we are discussing and that there will be no opportunity for the shadow Minister to speak to it when we reach clause 14. He has the opportunity now.
Keir Starmer
Thank you, Mr Owen. I apologise for two things. First, when the provisional selection list was sent round, I did not spot the grouping of amendment 89. It is a protective clause, so I can see why it has been grouped in that way, although it could equally have been grouped under clause 14. Secondly, I should have dealt with amendment 89 more fully, because as I understand it we will vote on it in consideration of this clause.
The Chair
Sorry, technically, we will vote on amendment 89 when we reach consideration of clause 14, but you will not have the opportunity to speak to it then. We will simply take the vote, so please address it now.
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.
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.)