Immigration Bill (Twelfth sitting)

Keir Starmer Excerpts

Thursday 5th November 2015 Public Bill Committees

[Anne McLaughlin]

I do not disagree, and my friend was very aware of the need to submit the original document; she just put the photocopy in accidentally without realising, but that meant that she had to start the entire process over again—and, if memory serves me correctly, she had to pay all over again. As well as people understanding how important it is to do the correct thing and provide the correct information, it would be useful if the Home Office could take into account the fact that someone made a mistake, and just ask them to sort it out. That is just one example.

The Government are looking at this situation the wrong way around. Instead of improving the accuracy of the original judgments or taking into account what we just talked about—the fact that problems could be sorted out relatively quickly—if feels as if they are trying to hinder reviews and appeals, worthy or not, by hampering appellants in submitting their claims. Human error alone will lead to faulty judgments which—given the consequences, such as having to appeal from overseas, or criminalisation for remaining in the UK—will inevitably lead to human suffering that could have been avoided. That is why previous legislators included a workable administrative review and appeals system. Those of us who have knowledge of that system will be familiar with its problems, but they pale into insignificance in comparison with the general policy of appeals from overseas and the criminalisation of those whose leave has expired.

There should be no doubt: those who support part 4 of the Bill will needlessly split up families. The fact that it will be impossible for families to stay together while appeals are dealt with makes a mockery of the Government’s professed support of family values. The family life of British citizens with foreign family members could hinge on such minor matters as faulty judgments, typos, stray documents or, to use my recent example, the accidental submission of a photocopy, which should be picked up during the appeal. Tat is no way to run an immigration system.

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

I want to make sure I have understood the measure. As I understand it, section 3D leave was for people whose leave had been cancelled or curtailed by the Home Office for various reasons including deception, so that they could bring an appeal—so they would be entitled to remain to bring an appeal. That seems sensible. There might be an error and it is usually best to put errors right. I have worked in a big organisation of 9,000 staff making hundreds of thousands of decisions. There is an always an error rate, however well trained the staff. It seems sensible therefore that if there has been an error the person in question should have the right to remain and appeal.

What happened, I think, is that the right of appeal was removed last year, but on an undertaking that there might be administrative review. Again, that might be quite sensible: we will remove the right of appeal but provide a different mechanism so that someone can simply correct a wrong decision. I understand that the administrative review procedure has not been put in place. Now, in cases where a decision is made to cancel someone’s leave, the Government want to strike out section 3D on the basis that since they will not let the individual affected do anything about it, there is no point in it. So when a wrong decision is made about an individual, what are they to do—in a nutshell?

[The Solicitor General]

I am grateful to hon. Members for their contributions to the debate. The hon. Member for Glasgow North East is concerned about the availability of administrative review. I am grateful for her more general observations, and I hope I answered them in response to the debate on clause 31; I hope that she will forgive me for not repeating my observations on those points. I mean no disrespect.

On the hon. Lady’s specific points, we do not think that administrative review should be available where a person has their immigration leave cancelled or revoked. There are a number of circumstances where it would not be appropriate. One example would be where a migrant worked in breach of their immigration conditions and had their leave cancelled. Another example would be a person whose conduct or behaviour has made it undesirable for them to remain here—people who facilitate sham marriages, for example.

[The Solicitor General]

I will come to that point and the point that the hon. Lady made about error. It is an amplification of the intervention she kindly allowed me to have. In place of administrative review, the Home Office has an error correction policy for when immigration leave is cancelled. So an application for error correction under the policy does not extend the immigration leave, but it does allow errors to be raised with the Home Office. We are getting the balance right between effective immigration control on the one hand and the fairness point that the hon. Lady quite properly raised.

[Keir Starmer]

Will the Solicitor General give way?

[The Solicitor General]

I will in a moment. I just want to finish this point. The Home Office contacts people who make applications and who have paid a fee to give them the opportunity to correct errors in their applications.

[The Solicitor General]

There are examples. The case of Iqbal, which we cited yesterday, was an example where individuals were invited to correct errors. So the process works. Statistics show that only 2.45% of applications were found to be invalid—invalid is when an application is made, but because of error it is of no effect, so the process is having an impact, which is good. I accept the point that the hon. Lady made about the case that she raised, but we believe that the error correction policy fills a particular gap and addresses the mischief that hon. Members have raised.

[Keir Starmer]

An error correction mechanism is a very good idea. I tried to introduce one in the Crown Prosecution Service to avoid people having to go to court. It provides a much quicker process and allows staff to understand where errors have occurred and correct them, but it is not foolproof by any stretch of the imagination, and there will be wrong decisions that are not picked up by an error correction mechanism. What happens in such cases? Simply saying there are some people who might bring inappropriate appeals, therefore there should not be a right of appeal, is, when broadened, an argument against any appeal in any case of administration decision. Of course some people will bring inappropriate cases.

[The Solicitor General]

Let us not forget the context here. We are dealing with situations in which people have had their leave revoked or varied because of due process, and a trigger event will have allowed that to happen. It is not fair to say we should look at such cases as a blank page where an administrative review might be the first opportunity for the issues to be aired. There is a residual and important right to judicial review of Executive decisions as well, so the checks and balances are there.

[Keir Starmer]

I am interested in this because, as we have gone through the proceedings, every time we hit the problem that there is no simple appeal or review, the suggestion is to go for a long shot—judicial review, which everyone knows is a long and expensive process. Has there been consultation with the judiciary on the policy of requiring all these cases to go to the High Court by way of judicial review as the only avenue of review? I think there would be concern about all these cases going to the High Court when they could have been dealt with much more cheaply, swiftly and efficiently.

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[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.

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Support for certain categories of migrant

[Keir Starmer]

I beg to move amendment 222, in schedule 6, page 90, leave out lines 28 to 30 and insert—

‘(i) in subsection (2A) for “accommodation” each time it occurs substitute “support” and for “section 4” each time it occurs substitute “section 95A”, and

(ii) in subsections (6) and (7), for “section 4 or 95” substitute “section 95 or section 95A”’.

To provide a right of appeal against decisions of the Home Office to refuse or discontinue support under new section 95A for asylum seekers at the end of the process who are unable to leave the UK.

The amendment would provide a right of appeal against Home Office decisions to refuse or discontinue support, under new section 95A of the Immigration and Asylum Act 1999 as inserted by the schedule, for asylum seekers at the end of the process who are unable to leave the UK.

The right of appeal would be against decisions on support that are wrong. To give some context, Home Office decision making about support is particularly bad. We have heard statistics about Home Office decision making in general, but the success rate for challenges to support decisions is very high indeed. For example, from September 2014 to August 2015, the asylum support tribunal received 2,067 applications for appeals against Home Office refusal of asylum support. Of those, 44% were allowed by the tribunal, and 18% were remitted to the Home Office for a fresh decision or withdrawn because of an acknowledgment that the decision making was flawed. Together, that is a 62% success rate.

I caveat that figure, as I have in previous discussions about appeal rates, but it is an incredibly high success rate. It beggars belief that, when the statistics are of that order, there is to be no right of appeal in a simple case of a wrong decision on support. It is another example of removing the ability of people—often vulnerable people—to challenge a decision that is wrong and put it right. Therefore, we have tabled the amendment.

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

We have heard from other Members about the serious impact on individuals and their children of losing all forms of support. The amendment would ensure that we did not leave people, including children, helpless and possibly destitute while awaiting removal from the UK.

If the schedule is not amended we will be treating refused asylum seekers with complete contempt. We will be saying to them that we do not care how they support themselves while awaiting removal. I ask Members this: if that bleak scenario were to become a reality, what advice would they give those people when they came to their surgeries? Would Members walk past them in the street when they needed our help? Would Members close their eyes, put their heads down and walk past children who had been affected and needed something to eat or a place to stay? I think not, but that is what the schedule allows for. I hope that Members see the stark reality that faces us if it is not amended.

Liberty has pointed out that the Government’s own document, “Reforming support for failed asylum seekers and other illegal migrants”, states that the removal of any support for failed asylum seekers should be seen in the context of the wider enforcement powers that the Government have at their disposal. I have to say that that way of looking at the issue is crude, verging on inhumane. Are we honestly at a stage now where we are telling people to go cold and hungry to enforce immigration measures?

Not only is the position inhumane, but removing a person’s support does not achieve the aim of deporting them from the country any sooner, as was highlighted by the 2005 pilot that has often been mentioned in our discussions. I accept that the Home Secretary may wish to have the power to discontinue support for refused asylum seekers, but an avenue of appeal should exist to allow those affected to explain their circumstances and have their bare minimum support—let us not forget that they will have been surviving on a pittance—reinstated. The right of appeal proposed in the amendment is essential to ensure that impoverished asylum seekers are able to access the support that they are entitled to and desperately need.

As I have said, routes of appeal exist for a reason—to correct a wrongful decision. On the evidence of appeals against decisions on loss of support taken by the Home Office, we would conclude that a power of appeal against wrongful decisions made by the Home Office is of the utmost importance. The Immigration Law Practitioners Association has produced a helpful briefing detailing statistics from the asylum support tribunal. According to ILPA, 62% of appeals received by the tribunal had a successful outcome. From September 2010 to August 2015, the tribunal received 2,067 applications for appeals against a refusal of asylum support, of which it allowed 44% and remitted 18%. Furthermore, research conducted by the Asylum Support Appeals Project found that the majority of support cases are overturned at the appeal level, with the number of successful appeals varying between 6w0% and 80%. A range of sources put forward the strong argument that the Home Office has a poor track record of decision making when it comes to removing support from an individual, and the consequences are of the utmost seriousness.

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[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 ---

[The Chair]

Before I call Keir Starmer, the Minister was being helpful and measured when he talked about having a debate on schedule 6. We have a lot of amendments to go through; we might cover a lot more ground before we get to schedule 6. I will make a judgment at that time, so I ask Members to speak to the amendments before us, whether they be Opposition or Government amendment.

[Keir Starmer]

You have been generous in letting us discuss amendment 222, Mr Owen. In the course of those discussions and the interventions, probably everything that could be said has been said. I just have a final point. I accept that within the figure of 62% being successful on appeal, there will be cases in which the Home Office, in truth, was not at fault because, for example, information came to light after the event or circumstances changed. However, there will be many cases in which it was at fault. The Government cannot simply put a figure like 62% on one side and say that it does not demonstrate anything. There is palpably a need for a right of appeal in this type of case more than any other. Given those circumstances, I will not withdraw the amendment.

Question put, That the amendment be made.

--- 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.

--- Later in debate ---

[Simon Hoare]

I am bringing in my generic thinking on the issue to explain why we should oppose the amendment. The amendment flies in the face of the common-sense approach that the British people want to see and that underpins the Bill.

In conclusion, the Minister made the apposite point that unless a clear message goes out to say that we are not a “soft touch”—I use that in inverted commas, because I appreciate that it could be inflammatory—or an easy target just because someone is a minor, far too many vulnerable youngsters will, I fear, be trafficked across the channel and elsewhere to come into the UK. This is all about signals and messages. That is why I oppose the amendment—argued for in a heartfelt manner, but fundamentally wrong—backed by the hon. Member for Glasgow North East.

[Keir Starmer]

I will be brief. We are talking about children coming out of care. It has been proposed that a message needs to go out to other countries—to be picked up by and to influence those coming to this country—that we treat those coming out of care unfairly. That proposition beggars belief. I will press the amendment.

Question put, That the amendment be made.

Immigration Bill (Ninth sitting)

Keir Starmer Excerpts

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 ---

[The Chair]

The question is that clause 13, as amended, stand part of the Bill. As many of that opinion say Aye. [Hon. Members: “Aye.”] To the contrary No. [Hon. Members: “No.”] The Ayes have it. Sorry—are you saying No?

[Keir Starmer]

On a point of order, Mr Owen. This may just be a point of clarification. We have had a debate on the amendments to clause 13, but we have not had the debate on clause 13 itself as far as I recall. I do not want to miss that opportunity, and if I am about to I would like to know.

[The Chair]

We did not have a debate at the beginning; you are right. I hesitated when I looked at the Minister because I thought he was going to say something.

[The Chair]

I am grateful to the hon. Gentleman, but I am as even-handed with the Minister as I am with Opposition Members when we go through these amendments. I tried to catch the Minister’s eye, but I did not do the same with Mr Starmer, so I am going to give him the opportunity to debate this clause before we move on. It is at my discretion.

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

[Keir Starmer]

I want to raise some issues about clause 13, because it contains some innovative measures that need to be considered. I want to address clause 13(2), on eviction. I understand that under clause 13 a landlord has the power to terminate an agreement under proposed new subsection (1) of new section 33D if the condition in proposed new subsection (2) is met, which is that the Secretary of State has given notice,

“which, taken together…identify the occupier…and…state that the occupier or occupiers are disqualified”.

So it is the Secretary of State’s notice that triggers the landlord’s ability to terminate the agreement under clause 13.

Proposed new subsection (3) states:

“The landlord may terminate…by giving notice in writing to the tenant”.

So far so good. The date for the termination

“must not be earlier than…28 days”.

Proposed new subsections (5) and (6) are much more controversial. Proposed new subsection (5) states:

“The notice is to be treated as a notice to quit”.

As I understand the amendment that we debated moments ago, in future, that may be a notice by email if prescribed in regulations.

Proposed new subsection (6) states:

“The notice is enforceable as if it were an order of the High Court.”

That is an innovation. It is a first in landlord and tenant legislation. In fact, it may be a first outside the area of civil penalties. It appears to be borrowed from a regime in which some orders can be treated under civil penalty schemes as an order of the court.

If applied to fines, the provision may not be problematic. In other words, it may not be necessary for the individual to go to court to have the level of the fine determined, but this is an order for eviction. The position in housing law is that in the 1970s a decision was taken to end for ever the prospect of people being forced on to the streets by landlords. Once upon a time, a landlord could change the locks, put the furniture on the street and throw the family out there and then. It was so repugnant to all parties that it was thought that we should set our face against that ever happening again. From then on, as far as I am able to research and as I know from my own practice, there has always been a requirement to go to a court to have an eviction order put through proper due process to avoid the prospect of a family literally being put on to the streets.

If the provision means what it says on the page—there may be an explanation for it that the Minister can help me with—it appears to reintroduce something that has been outlawed for the best part of 50 years. The provision means that, once the notice is served, if it is enforceable as if it were an order of the High Court, the landlord can resort to self-help and can change the locks, put the furniture on the street and put the family on the street as well, without any more ado.

[Sarah Champion (Rotherham) (Lab)]

On top of the points of serious concern that my hon. and learned Friend has already mentioned, does he also share my concern that there is now no safeguard if the landlord pursues a wrongful conviction?

[Keir Starmer]

There is a very serious concern, because as far as I can see there is no ability in the clause for the tenant to appeal the landlord. I am not even sure under these circumstances whether judicial review is available.

[Craig Whittaker (Calder Valley) (Con)]

I understand what the hon. and learned Gentleman is trying to put across. However, currently the eviction order is looked at by one person in a court. Surely he must agree that if the order comes from the Secretary of State, a much higher due diligence is gone through in following the eviction process first.

[Keir Starmer]

I accept that the notice will have come from the Secretary of State, but it will have gone to the landlord unbeknownst to the tenant. The first thing the tenant will know is when the notice is served on him or her. At that stage, there is nothing in the clause, as far as I can see, that allows the tenant to appeal or to challenge the order. I can see that some might argue that the Secretary of State could be challenged by judicial review for issuing the order in the first place, but that is a long and very complicated High Court route to deal with eviction, which would normally be dealt with in the county court.

[Craig Whittaker]

Although I accept the point the hon. and learned Gentleman was trying to make, to say that the tenant is not aware that they are illegal immigrants is, even he may agree, a little far-fetched.

[Keir Starmer]

That is why I did not say it. I said that the tenant would not know that the notice had been served. Just to stand back a moment, this issue was taken so seriously by the House because it happens in real life: landlords change locks, they put furniture on the streets and families are in the gutter. That is what happened and everybody thought it was something we could not tolerate in a modern democracy, whatever the rights and wrongs, whether the eviction was justified or not justified. Many evictions, for many other reasons in land law, are justified, but everybody considered that process was important, particularly where families would be put on the street. This is a step back to the dark ages of landlord and tenant law.

[Craig Whittaker]

Again, I see the exaggerated point that the hon. and learned Gentleman is trying to make, but can he explain what currently happens once someone has been to court as a landlord and got an eviction order from the court?

[Keir Starmer]

I will happily do that. Sensibly, the law has been set up in such a way that the landlord gets a High Court enforcement officer with powers of a constable to carry out the eviction if necessary. That is to prevent landlords from resorting to violence in the premises—that is why that change was made. The presupposition is that the eviction is lawful, but in order to regularise the process, the landlord gets a court order and then a High Court enforcement officer exercises the powers of a constable to enforce it. The whole point was to stop families being put on the street without due process and to avoid the violence that was happening when a landlord resorts to self-help and changes the locks and boots someone on to the street. That is why “with the power of a constable” is included. That is what happens now, but what is proposed here is radically different and I have seen nothing to justify it.

[Paul Blomfield (Sheffield Central) (Lab)]

I guess that, like me, my hon. and learned Friend was pleased to hear the Minister a moment ago cite the expert evidence of Crisis in support of Government amendment 69. Crisis is a highly respected organisation doing extraordinary work to help sections of homeless young people. Does he therefore hope, like me, that the Minister will take note of Crisis’s view on the eviction routes that are being created by this Bill, which is that they should be completely opposed because they will make tenants much more vulnerable to rogue landlords?

[Keir Starmer]

I am grateful for that intervention, and I ask Government Members to take notice of that evidence. I also ask them not to just nod this change through. This is not just a provision in an immigration Bill in 2015; this will turn the clock back 40 years in landlord and tenant law against a practice that everybody recognized served great injustice. That law does not mean that there cannot be an eviction; it means that there must be due process and it avoids self-help, and self-help by landlords is a very bad idea.

There is no appeal, and I would again like to hear from the Minister, on the record, whether his answer to that point is that there should be a judicial review of the issue of the notice by the Secretary of State in order to challenge the eviction. I want that to be clear, because it would introduce a costly—much more costly—prolonged process than going to the county court in the ordinary eviction process under landlord and tenant law. If not, and there is either no remedy or appeal, what if the notice by the Secretary of State is wrong? Is that to be appealed by way of judicial review? Is that the only prospect? If that is the prospect, why is it better than going to the county court in the usual way, where it could be challenged in the eviction process?

[Sarah Champion]

Another consideration that I have not heard the Minister speak of is that if families are effectively made street homeless, it then falls on the local authority and will put additional pressures on existing housing stock. Going through this route, the local authority may have absolutely no awareness of it until the family literally rocks up on their doorstep.

[Keir Starmer]

That is the situation. The Government may say that I am just exaggerating, but I am not. I had a number of housing cases in my practice and some Government Members probably have as well. Having self-help evictions is a real problem for everybody, because of the injustice and the violence. Under self-help, there is nothing wrong with waiting until the family go out and changing the locks so that they cannot get back in when they come home. That means that families are out and, if there are children involved, it probably leads back to the same route, with the local authority having to carry out an assessment under the Children Act 1989.

This is a thoroughly bad provision. It is innovative—it has never been used, as far as I know, in landlord or tenant law or outside the realm of enforcement of regularised fines. There is no appeal and no regular forms of enforcement. To again clarify, under the existing regime, High Court enforcement officers have special powers of eviction and there are processes of eviction to ensure that there is no violence, that there is due process and that everybody is treated fairly.

There is absolutely no reason to change that scheme for this group of individuals. I hope that Members will not simply nod this change through as another bad provision not worth raising any concerns about. This goes way beyond immigration and into the housing field, where there has been unanimity about this process for a very long time. I ask the Minister to clarify, if necessary in writing, how he sees this provision working and what the routes of appeal are for an individual who says either that the notice from the landlord or the notice from the Secretary of State is wrong. This an area, as heard in evidence, where there are high levels of error.

[Paul Blomfield]

My hon. and learned friend is making the point extremely powerfully and, like him, I hope that Government Members will give consideration to it. Is he also concerned about proposed new section 33E of the 2014 Act, which allows the landlord to terminate the tenancy if one of the tenants no longer has the right to rent but others do? It provides a summary eviction route of the sort that he describes for people who actually do have the right to rent.

[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 ---

[Anne McLaughlin]

I start by asking the Minister whether he will acknowledge that housing is a devolved responsibility. Lengthy provisions in the Bill affecting housing for those already in the country are in effect housing legislation under an immigration banner. The Law Society of Scotland believes that the residential tenancy provisions will require a legislative consent motion to be placed before the Scottish Parliament. My understanding is that the Minister disagrees with that. It is clear that the Bill affects all landlords and tenants in Scotland and thus fundamentally alters a sector for which legislation is devolved. Moreover, it is clear that the changes are not merely incidental. Calling it the Immigration Bill does nothing to change the fact that it substantially alters housing law in Scotland.

The Bill allows for the measures on residential tenancies to be brought into effect in Scotland simply through a regulation-making power. That power specifically prevents functions being conferred on Scottish Ministers and means that the regulations can revoke, amend or repeal any Act or order made by the Scottish Parliament. That would enable the Minister and the UK Government to use secondary legislation powers simply to overturn primary legislation on matters devolved to the Scottish Parliament without its consent and often against its will.

What has happened to the respect agenda? Where is the constitutional principle that the UK Government will not legislate on devolved matters in Scotland without the consent of the Scottish Parliament, which clearly represents the Scottish people? The Bill also runs counter to clause 2 of the Scotland Bill, which is being considered here in Westminster and is intended to recognise that principle in statute.

If the Scotland Bill is passed next week and the Immigration Bill is not amended, would I be right to tell the people of Scotland that this British Government have no regard for Scotland’s right to legislate on devolved matters? Given the enthusiasm with which the UK Government have embraced English votes for English laws, could some people not rightly suggest that it is perhaps a little hypocritical to attempt to ride roughshod over the will of the Scottish Parliament?

The Law Society of Scotland highlighted some other concerns. When issues such as asylum support, taken together with the housing law measures, are also taken into account, the changes to devolved functions such as local authorities, health, child protection and social work can no longer be described as incidental to a reserved matter, in this case immigration. Following the devolution referendum, it was clear that the settled will of the Scottish people was to have these issues decided in Edinburgh. It is also clear, given the SNP majority in Holyrood and the fact that only one Conservative MP was elected in Scotland, that these right to rent proposals do not have the support of the Scottish people or the Scottish Parliament. I propose that these provisions be removed from the Bill.

Of course, I am making the big assumption that the Minister is not going to rise to his feet shortly and tell us that this was an oversight and that he will of course amend the Bill to reflect the principle in clause 2 of the Scotland Bill and to include in the regulation-making powers in clause 15 a duty on UK Ministers to consult Scottish Ministers and to seek the Scottish Parliament’s consent to regulations before they are introduced. That would be the right thing to do and it would allow the Scottish Parliament to consult with relevant stakeholders in Scotland about these proposals.

[Keir Starmer]

If this is the appropriate time I shall speak to new clause 12, which is grouped with this. If it is not the appropriate time I shall wait.

[The Chair]

It is convenient.

[Keir Starmer]

I can deal with it very quickly because it is on a theme. It is simply a new clause to remove the power to extend, by regulation, the provisions of the Bill on residential tenancies beyond England and to restrict the provisions of the Immigration Act 2014 pertaining to England unless the devolved Administrations consent to their further extension. It is a fall-back position.

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

I previously discussed briefly how the Bill affects areas of devolved legislation in Scotland and how it, and clause 15 in particular, fit with the UK Government’s implementation—in full, allegedly—of the Smith commission. There is another debate to be had about whether the Smith commission lives up to the vow that was made to the Scottish people. Members will be aware that a vow was made to represent near federalism or home rule within the UK. They will also be aware that most, if not all, definitions of federalism or home rule suggest that all powers except defence and foreign affairs will be devolved to another local level—the Scottish Parliament, in this case. That debate will be had in another time and place, but we should reflect on the manner in which the Bill affects Smith and the passage of the Scotland Bill.

The Smith commission opened up the possibility that the Scottish Parliament will be allowed to develop and design certain immigration powers to cope with the particular and different demands affecting Scotland. When we combine that with the fact that housing is already devolved to Scotland, the uncomfortable truth for the Minister is that the Government are trying to pull a fast one here. Why else would the Minister refuse to meet the Scottish Government Minister for Housing and Welfare, who requested a meeting on this very issue?

Amendments 78 to 82 provide that the right to rent policy would not apply to Scotland. There are a number of additional reasons over housing being devolved as to why the SNP group believes that these amendments are justified. The powers in the previous Scotland Act have just started to be implemented and we are debating further powers in the latest incarnation of the Scotland Bill, including putting the Sewell convention on a statutory footing. However, we also think that the right to rent policy is simply a bad policy that lacks the appropriate evidence base. If it is rushed through it will not only have a significant impact on tenants but affect landlords and letting agencies.

During the evidence session we heard from a range of bodies that have voiced concern about the right to rent policy. A lot of these experts and agencies have already been quoted at length, so I shall not test the Committee’s patience by repeating them ad nauseam. However, it is not only these important UK-wide organisations voicing concern about this policy; as my hon. Friend the Member for Glasgow North East mentioned, the Law Society of Scotland has deep concerns. It is worth reflecting on its contribution:

“In relation to the proposal to empower the Secretary of State to amend or repeal provisions of Acts of the Scottish Parliament, we are concerned that the potential for unlawful discrimination and for human rights breaches have not been fully considered. We consider that consultation with a view to seeking the legislative consent of the Scottish Parliament should be initiated”.

The Scottish Federation of Housing Associations is also calling for the right to rent policy to be repealed, as the checks that are required to be undertaken are causing

“disproportionate and unnecessary stress upon our members’ resources that are already under pressure due to the financial impacts of supporting tenants through welfare reform, and other financial constraints”.

However, organisations are not only voicing concern about the financial costs that are being levelled against landlords as a result of the right to rent policy; they also do not think it is right that they are being asked to perform the duties of an immigration official. The SFHA’s written evidence questioned whether it was appropriate for landlords to be acting as the UK Government’s very own immigration agents. That is a reasonable question, since our landlords and letting agencies do not have the training or the expertise to be able to ascertain someone’s immigration status. These are fundamental concerns that need to be addressed, and the snapshot, rushed and ill-equipped evaluation that the UK Government have hastily put together on the right to rent policy fails to address the points that have been raised.

The SNP would like to see the right to rent policy being scrapped across the whole of the UK, reducing the discrimination that our international friends face regardless of where they might be staying. Nevertheless, we accept that the UK Government have the mandate to roll out this scheme across England. Equally, however, they must be willing to accept that Scotland should be exempt from the right to rent roll-out. The fact that housing is already devolved, combined with the content of the Smith commission, the views and evidence provided by a range of housing bodies, and the general election results in Scotland, create a strong and justifiable argument that amendments 78 to 82 should be accepted by the Government and the right to rent roll-out should not take place in Scotland.

--- 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.

--- Later in debate ---

[Keir Starmer]

I am grateful for that explanation, but I want to clarify the position. I think, having listened to the Solicitor General, that the primary purpose of the clause is to enable a valid—on the face of it—driving licence to be seized for the purposes of revocation, and if it is not revoked or if it is challenged, it is returned. It would be helpful if the Solicitor General could confirm that that is the driving purpose of the clause.

[The Solicitor General]

I am grateful to the hon. and learned Gentleman. The position is that, for revoked and unrevoked driving licences, the power will be there to seize both. For example, a valid driving licence can be seized and proceedings then undertaken to revoke it because it is held by someone who ought not to be here.

[Keir Starmer]

I do not think we are at odds, but I need to ensure that I understand. The process is straightforward where a driving licence is invalid or already revoked, but if a licence is not revoked and is, on its face, valid, the purpose of the provision is to allow a revocation process to be completed.

[The Solicitor General]

Yes, that is right.

--- Later in debate ---

[The Solicitor General]

I would, Mr Owen.

In our evidence session, those points were, quite properly, put to the chief superintendent, and we received reassurances that it is all about intelligence-led policing and intelligence-led investigations by immigration officers. The provisions will not, in my view, lead to the random targeting of people based on their ethnicity. That would be wholly wrong and it is not something that the Government support.

As I said, the police will have cause to stop a vehicle; they may then check the driver’s circumstances, and then, if the driver is found to be an illegal migrant, the powers we intend to introduce can be used. There will not be a misuse of power, as the action taken will be based on information that is already available. Bearing in mind the demands that are placed on our investigative authorities, it is a sensible use of their resources. Certainly I, and the Government, will not encourage the authorities to randomly target individuals based on any arbitrary judgment about their status. I hope that that gives the hon. Lady the reassurance she seeks.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

Clause 17

Offence of driving when unlawfully in the United Kingdom

[Keir Starmer]

I beg to move amendment 75, in clause 17, page 19, line 39, at end insert—

“(1A) A person does not commit an offence under subsection (1) if they had a reasonable belief that they had legal right to remain in the United Kingdom and acted in good faith.”

This amendment would provide a defence for those prosecuted for driving while illegally in the UK if they can show that they had a reason to believe that they did have legal right to be in the UK.

[The Chair]

With this it will be convenient to discuss amendment 76, in clause 17, page 20, line 6, at end insert—

“(3A) Nothing in this Section shall prejudice the validity of insurance relating to motor vehicles.”

This amendment would ensure that the introduction of an offence of driving while illegally in the UK would not interfere with the validity of motor insurance.

[Keir Starmer]

I can be relatively brief. My underlying point, which I put to the Minister now, is that in the evidence we heard two weeks ago, it was made clear that the police did not seek the new power and that they had not found any gap in their ability to deal with drivers who did not have regular status. Will the Solicitor General, at least for the record, set out the evidential basis for the creation of a new criminal offence? I go back to a proposition I put forward last week that criminal offences should not be introduced unless there is a clear case of necessity and a gap in the provisions available to law enforcement. If the law enforcement witnesses have not found a gap or asked for this, it would be helpful for the Committee to know the basis for the provisions in the first place.

Amendment 75 is in keeping with my other amendments to provide a defence for those who have a reasonable belief that they have a right to remain in the UK. The problem with this offence, as with the offence of illegal working, is that it is quasi-strict liability—in other words, there is no defence in the Bill. I ask Members opposite simply to read the amendment and ask themselves why they think it is necessary to criminalise someone who:

“had a reasonable belief that they had legal right to remain in the United Kingdom and acted in good faith”.

Why is it necessary to criminalise someone in that position? If Members vote against the amendment, that is what they will do.

I use again the example I used last week or the week before, where someone has been sponsored but, unbeknown to them, there is something wrong with the sponsorship. They may therefore find themselves in a position where they do not have the status they should have, although they have a reasonable belief that they have a right to be here and they acted completely in good faith. What is the legal case and the moral case for criminalising a person in that situation? The measure applies only in a case of reasonable belief and only if the individual acted in good faith. What is the case for criminalising such an individual?

If the Minister indicates that amendment 76 is unnecessary, I will withdraw it. It is driven by a concern not for the driver of the vehicle but for the victim of a road accident. It introduces a whole new category of individuals where there is a concern that there is a possible consequence. If I am wrong about this, I will withdraw the amendment. A possible consequence of these measures is that otherwise valid insurance that would have been available to the victim of a road traffic accident will be unavailable, having been made invalid because of the driving offence that has been created by this section. That is a real concern to those who are concerned about victims of road traffic accidents.

[Sarah Champion]

As I said earlier, we do not have a problem with clauses 16 and 17. The two amendments are designed to protect innocents. If the Minister is able to confirm that protection is in place, either in guidance or in the Bill, we would like to hear it.

[The Solicitor General]

Let me deal first with the question raised by the hon. and learned Gentleman about the evidence. There is a loophole involving people who are unlawfully here—illegal migrants—who are driving with foreign-issued licences. The offence will cover all aspects of driving by migrants who are in the United Kingdom unlawfully.

Every year, about 10,000 queries are referred to the Home Office by the police relating to either road-side stops or vehicle stops. We do not have precise numbers on cases where an illegal migrant was found to be driving a vehicle, but of the one fifth of cases related to vehicle stops, about 10% relate to drivers who are in the UK legally. I am talking about a loophole here. I think it is right that we try to close that when it comes to covering all incidents in which the authorities through other intelligence and other reasons to stop vehicles come into contact with people who are here unlawfully. The provision is another important tool to deal with a matter of public concern.

I recognise the reasons behind amendment 75, but in my view it is very broad and very subjective. It will create scenarios, for example, in which a defendant might claim they had reason to believe they were in the UK legally, simply because they had misunderstood the date on which their leave expired. It would be difficult to prove otherwise and then the purpose of the offence is undermined.

Let me deal with offences of strict liability in the context of driving. This concept is not new. For example, the offence of driving while disqualified under section 103 of the Road Traffic Act 1988, as amended, is an offence of strict liability, so this is not a new departure, although the defence would be a new departure when it comes to driving offences of this nature.

[Keir Starmer]

I am grateful to the Solicitor General for his explanation. I readily accept that this quasi-strict liability is not uncommon when it comes to driving and disqualification. The difference is that if someone is disqualified, they know they are disqualified. If there were a situation in which somebody, perhaps through sponsorship, genuinely and simply did not know that their status was as it was and would come within this defence, is the Solicitor General’s answer that that is just tough?

[The Solicitor General]

Not quite. There are a couple of caveats. First, a person who is prosecuted for this offence has the opportunity before the court issues judgment to put in mitigation about their belief as to whether they were legally present in the UK, and that would affect any sentence that might be passed by the court. Also, the Crown Prosecution Service will have guidance to ensure that migrants are not inappropriately prosecuted for this offence. Should a migrant be able to genuinely show that they believed themselves to be legally present, the public interest test, with which the hon. and learned Gentleman is very familiar, would apply.

[Keir Starmer]

I am grateful—I can see where this is going. Obviously, any guidance will be for the CPS to draft. Will the Solicitor General be writing to the Director of Public Prosecutions to ask her to consider whether this matter should be included in the guidelines? Obviously, it would be a matter for her, but he could suggest that she consider it.

[The Solicitor General]

I am more than happy to draw the DPP’s attention to this debate, which I hope will be of assistance to her in drafting guidelines.

I assure the Committee that the offence is not aimed at victims of modern slavery who have been forced to drive. I hope that goes some way to answering the concerns raised by the hon. Member for Rotherham. As she is aware, the statutory offence under section 45 of the Modern Slavery Act 2015 will apply. If a person has been compelled to drive as a direct consequence of slavery or human trafficking, they will not commit this offence. Further, there are common-law defences. For example, it will remain a defence for someone to show that they committed the offence under duress, regardless of whether they are a victim of modern slavery. I have mentioned potential new guidance, and there is existing guidance from the DPP to ensure that victims of modern slavery are not inappropriately prosecuted. These are effective safeguards against the inappropriate use of the offence that hon. Members have expressed concerns about.

Amendment 76 has been tabled because of genuine concerns about the validity of motor insurance. We are exploring with the insurance industry the potential impact of the offence on policies, but I can give reassurance today that a person involved in an accident with an illegal migrant driver will be protected. By virtue of sections 151 and 152 of the Road Traffic Act 1988, insurers have certain liabilities to innocent third parties that they cannot exclude from insurance policies. Those liabilities derive from obligations under European law which mean that an innocent third party involved in a traffic collision with an illegal migrant driver will be entitled to make a claim on the illegal migrant’s insurance policy, even if the policy is voided as a result of the migrant being unlawfully present here.

--- Later in debate ---

[Keir Starmer]

I am grateful for those explanations and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[The Solicitor General]

I beg to move amendment 44, in clause 17, page 20, line 33, leave out “as to whether” and insert “not”

This amendment and amendment 45 clarify that a vehicle must be released where a decision is taken not to institute criminal proceedings for the offence of driving when unlawfully in the United Kingdom.

[The Solicitor General]

As we know, clause 17 inserts a new offence of driving while unlawfully present. Amendments 44 and 45 are technical in nature. They make clear that a vehicle must be released from detention where a decision is taken not to institute criminal proceedings for the offence of driving when unlawfully in the United Kingdom.

Amendment 46 ensures that a police or senior immigration officer may detain a vehicle at any place where they are lawfully present, including private property that is open to the public, such as a privately owned car park. Amendment 47 provides a power for the police or a senior immigration officer to enter premises, such as the suspect’s property, for the purpose of searching for and detaining a vehicle used in the commission of the offence. Those two amendments ensure that a person cannot frustrate seizure of the vehicle used in the commission of the offence by keeping it on private land, such as in a garage. Amendment 47 also provides that the power to enter premises may be exercised by a senior immigration officer or constable without warrant, where the officer knows the vehicle is present—for example, they can see the suspect’s car parked on the driveway. Where a senior immigration officer or constable has reasonable grounds for suspecting that a vehicle may be found on premises but does not know it is there, the amendment provides the facility to apply for a warrant enabling the officer or constable to enter premises to search for the vehicle.

The provisions for obtaining a warrant reflect certain differences in the legal, procedural and administrative framework governing the issuing of warrants between Scotland and the rest of the UK. In particular, the Scottish criminal justice system does not provide for warrants to be issued for multiple entries to multiple premises by constables in Scotland. These forms of warrants are a feature of the Police and Criminal Evidence Act 1984 in England and Wales. The amendment therefore makes special provision to disapply this form of warrant for constables in Scotland. I hope Scottish National party Members note that great care has been taken to ensure that the two systems dovetail in a way that is acceptable to everyone.

Amendment 48 ensures that a person accompanying a constable in the execution of a warrant, such as a person contracted by the police to remove and store a vehicle used in the commission of the offence, may detain that vehicle. It also provides that a constable may use reasonable force in order to detain a vehicle.

I invite the Committee to accept those amendments.

Amendment 44 agreed to.

Amendments made: 45, in clause 17, page 20, line 35, leave out “have been” and insert “are”.

See the explanatory statement for amendment 44.

Amendment 46, in clause 17, page 20, line 45, at end insert—

‘( ) A power in subsection (1) or (3) may be exercised by a senior officer or constable at any place at which the senior officer or constable is lawfully present.” —(The Solicitor General.)

This amendment makes clear that a vehicle can be detained by a senior officer or constable at any place they are lawfully present.

[Keir Starmer]

I beg to move amendment 74, in clause 17, page 21, line 30, at end insert—

‘(10A) Before laying regulations to bring Section 24D into force, the Secretary of State must ensure a pilot of the arrangements takes place.

(10B) Following the completion of the pilot mentioned in subsection (10A) the Secretary of State must prepare a report and lay it before each House of Parliament.

(10C) The pilot mentioned in subsection (1) must take place in a minimum of two police force areas and last for a minimum of six months.”

This amendment would ensure that the Home Secretary conducted a pilot of the proposed powers to allow police forces to confiscate the cars of suspected illegal immigrants before the measures were introduced.

I can deal with this amendment briefly. We have debated the provisions in the clause itself. Several concerns have been raised and several assurances have been given by the Government, but these are new provisions, so the amendment simply provides that they should be piloted before they are rolled out, partly to ensure that those assurances work in practice and partly because, when introducing new provisions of this sort, piloting is always a good idea to ensure that they work in practice. However, the substance of the debate has already been had, in terms of the concerns and assurances.

[Sarah Champion]

I was on the Select Committee for Transport and went out with the DVLA when it was doing some of its stops with police officers. I apologise for raising this question in this debate, but I did not know where else to raise it. I was shocked when the Minister said that 10,000 inquiries were made to the police last year. I know that the DVLA has vast concerns that it does not have the resources to investigate people driving illegal vehicles rather than illegal driving. How will the police, immigration and the DVLA work together? Also, has he considered the resources, which will be considerable if there are already 10,000 inquiries? Acting on those and investigating will be pretty resource-intensive. Can he comment on that?

--- Later in debate ---

[The Solicitor General]

Yes, I can. Perhaps I have not clearly outlined that we do not expect police officers to take on a whole new swathe of different inquiries, independent of already existing intelligence and information; rather, this provision is a bolt-on. It allows police officers to follow another reasonable line of inquiry as a result of the intelligence they have already obtained. The scenario that the hon. Lady is concerned about is not one that is going to come to fruition. This is about putting another tool in the box, rather than an expectation that there are suddenly going to be new independent operations as a result of these new powers. I hope that gives the hon. Lady some reassurance.

[Keir Starmer]

The Minister mounts a “Dukes of Hazzard” defence. I am not quite sure that is right, because this provision is focused on the confiscation of the vehicle rather than the moving vehicle, but he makes a persuasive argument about the technical issue, which is his best point, and on that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 47, in clause 17, page 21, line 32, at end insert—

“24DA Powers to enter premises to detain motor vehicle

(1) A senior officer or a constable may enter and search any premises for the purposes of detaining a vehicle under section 24D.

(2) The power in subsection (1) may be exercised—

(a) only to the extent that it is reasonably required for that purpose, and

(b) only if the senior officer or constable knows that a vehicle which may be detained under section 24D is to be found on the premises.

(3) The power in subsection (1) may be exercised—

(a) by a senior officer (“S”) only if S produces identification showing that S is an immigration officer (whether or not S is asked to do so);

(b) by a constable (“C”) only if C produces identification showing that C is a constable (whether or not C is asked to do so).

(4) Subsection (5) applies if, on an application by a senior officer or constable, a justice of the peace is satisfied that there are reasonable grounds for suspecting that a vehicle which may be detained under section 24D may be found on premises mentioned in subsection (6).

(5) The justice of the peace may issue a warrant authorising any senior officer or constable to enter, if need be by force, the premises for the purpose of searching for and detaining the vehicle.

(6) The premises referred to in subsection (4) are—

(a) one or more sets of premises specified in the application, or

(b) subject to subsection (10), any premises occupied or controlled by a person specified in the application, including such sets of premises as are so specified (in which case the application is for an “all premises warrant”).

(7) If the application is for an all premises warrant, the justice of the peace must also be satisfied—

(a) that there are reasonable grounds for believing that it is necessary to search premises occupied or controlled by the person in question which are not specified in the application in order to find the vehicle, and

(b) that it is not reasonably practicable to specify in the application all the premises which the person occupies or controls and which might need to be searched.

(8) Subject to subsection (10), the warrant may authorise entry to and search of premises on more than one occasion if, on the application, the justice of the peace is satisfied that it is necessary to authorise multiple entries in order to achieve the purpose for which the justice issues the warrant.

(9) If it authorises multiple entries, the number of entries authorised may be unlimited, or limited to a maximum.

(10) A justice of the peace in Scotland may not issue—

(a) an all premises warrant under this section authorising entry on premises by a constable, or

(b) a warrant under this section authorising multiple entries by a constable.

(11) In the application of this section to Scotland, references to a justice of the peace are to be read as references to the sheriff or a justice of the peace.

(12) In this section “senior officer” means an immigration officer not below the rank of chief immigration officer.”

This amendment provides the police and immigration officers with the power to enter premises in order to detain a relevant vehicle. This ensures that an illegal migrant who commits the offence of driving when unlawfully present in the United Kingdom cannot frustrate seizure by keeping the vehicle on private land.

Amendment 48, in clause 17, page 22, line 22, at end insert—

‘( ) In section 16(2A)(b) of the Police and Criminal Evidence Act 1984 (powers of persons accompanying constables in execution of warrants) after “seizure” insert “or detention”.

( ) In Article 18(2A)(b) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 22)) (powers of persons accompanying constables in execution of warrants) after “seizure” insert “or detention”.

( ) In section 146(2) of the Immigration and Asylum Act 1999 (use of reasonable force) before paragraph (a) insert—

“(za) section 24DA(1) (powers to enter premises to detain motor vehicle),”.”—(The Solicitor General.)

This amendment ensures that a person accompanying a constable in the execution of a warrant may detain a vehicle and that a constable may use reasonable force in order to detain a vehicle.

Clause 17, as amended, ordered to stand part of the Bill.

Clause 18

Bank accounts

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

[The Chair]

With this it will be convenient to discuss amendment 77, in clause 54, page 45, line 11, at end insert—

‘(4A) A statutory instrument containing regulations under subsection (1) in relation to Section 18 shall only be made after having been laid in draft before each House of Parliament and approved by a resolution of each House.”

This amendment would require the regulations bringing into force Clause 18 to be subject to debate and approval by the House of Commons and the House of Lords.

--- Later in debate ---

Other regulation-making powers in the schedule deal with questions of administrative detail and so are subject to the negative procedure. They will none the less receive parliamentary scrutiny. The code of practice on freezing orders must be laid before Parliament before coming into force. The bank accounts provisions cannot come into force until the necessary regulations are in place. I therefore invite the hon. and learned Member for Holborn and St Pancras not to press the amendment. I will ask that clause 18 and schedule 3 stand part of the Bill, but I know that there will further debate on amendments that I would be happy to respond to in the usual way.

[Keir Starmer]

Let me indicate to the Committee that our general approach to these provisions is not to oppose them. Clearly there have not been difficulties in the provisions that are already in law, and we did not see in either the written or oral evidence any concern expressed by those operating banks that this proposal posed an undue burden on them. I think that is probably because banks are used to carrying out a number of checks—not just, as it were, immigration checks, but all sorts of other checks that are required now.

The concern we are really driving at—if I may, I will stray into schedule 3, which is triggered by clause 18—is the position of an individual where there has been closure or suspension in error and loss as a result. It is in that spirit and that limited way that the point is being made. That is what amendments 93 and 94 are driving at: essentially to explore—and, if necessary, push on—what the position of the individual is where closure is made in error and loss results from that.

[The Chair]

Order. Just to be helpful, we will be taking those amendments separately, so there will be an opportunity to debate and vote on them later.

[Keir Starmer]

I am grateful for that clarification, Mr Owen. To some extent, given the way that it is set out, the amendment pretty well speaks for itself in any event. There is obviously a distinction between the freezing provisions and the closure provisions, in terms of the right of appeal open to individuals. It may be that the Minister can give a degree of assurance about how that will operate, but the reason I raised it at this stage is because amendment 77, requiring scrutiny, is to some extent premised on the concern about that limited class of individuals. I take it together in that way, but I hope I have made the sprit clear. This is about being supportive of the approach, but also exploring and seeking assurances on what happens in the case of an error that could be very costly to the individual.

Question put and agreed to.

Clause 18 accordingly ordered to stand part of the Bill.

Schedule 3

Bank accounts

[The Solicitor General]

I beg to move amendment 22, in schedule 3, page 70, line 35, leave out “or a court of summary jurisdiction”.

This amendment and amendment 23 change the definition of “relevant appeal court” for appeals in Northern Ireland. The effect is that an appeal against a decision by a court of summary jurisdiction in Northern Ireland to make a freezing order is made to a county court instead of the Crown Court.

Immigration Bill (Seventh sitting)

Keir Starmer Excerpts

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—

[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.

[The Chair]

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

--- Later in debate ---

[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?

--- Later in debate ---

[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.

[Simon Hoare]

rose—

[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.]

[The Chair]

Order. There are too many conversations.

[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.

[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.

[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]

Yes.

--- Later in debate ---

[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.

--- Later in debate ---

I underline that the focus of the Bill’s measures on landlords is on the minority of rogue landlords who repeatedly flout the law and are repeatedly found to be renting to illegal immigrants. It is possible that a landlord and tenant may avoid a need to take eviction action where they agree between themselves to bring the tenancy to an end or where the illegal immigrant decides to leave the property of their own volition.

[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 (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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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 ---

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.

--- 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 (Sixth sitting)

Keir Starmer Excerpts

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 ---

I reassure the hon. and learned Member for Holborn and St Pancras that the issue of compensation is not ignored. He makes a point around compensation orders, but we hope that, through the new strategy and approaches, compensation will remain a focus of operational activity. I ask him to withdraw the amendment.

[Keir Starmer]

I am grateful to the Minister for his clarification, not only on the technical point we have just discussed, but more generally on the health and safety and other agencies that are not included in the Bill. I now understand that that is because of the particular function and focus of their activity and, in relation to children, because of the localised knowledge of some authorities that would not otherwise be more generally available.

I am going to withdraw the amendment, so I shall be brief. However, it would be helpful if there could be greater clarity about the sharing of intelligence. Although they are separate functions, there will be a huge overlap between what the health and safety and other agencies are doing, and what the director is trying to pull together in the strategy. The Minister says that there will be a sharing of intelligence, so it would be helpful if we had more clarity about exactly how that will work. I say no more about the strategy in relation to obstacles and resources, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Keir Starmer]

I beg to move amendment 60, in clause 2, page 2, line 26, at end insert—

‘(3A) The Director must engage with civil society in the development of his or her labour market enforcement strategy.”

To expressly require engagement between civil society and the Director of Labour Market Enforcement in the development of the labour market enforcement strategy.

The amendment would require the director of labour market enforcement to engage with civil society in the development of the labour market enforcement strategy. Page 26 of the Government’s consultation document “Tackling Exploitation in the Labour Market” states that a director:

“will engage with a wide range of stakeholders to gather insights and perspectives on real world practices, improve detection of exploitation and understand external views of the effectiveness of the enforcement landscape. Stakeholders will include Government departments, the IASC, the police, local authorities and other public bodies; organisations representing employers and employees across the economy and in particular sectors of interest; and a range of third sector bodies that engage with vulnerable/exploited groups.”

The amendment would make that explicit in the Bill.

It is important that the voice of organisations working with victims of labour exploitation, trade unions and others are invited to feed their expertise into the director’s work, especially at the strategy stage. The absence of any formal engagement strategy will mean that the director may fail to gain the breadth of front-line experience and expertise required to prepare an evidence-based strategy. This is linked to the resource point that was made earlier. With extremely limited resources, it will be very hard for the director to gather the range of information required to complete a comprehensive labour market assessment, so strong engagement mechanisms will be required to ensure that all expertise is integrated into the strategy. The amendment would strengthen the strategy and formalise the involvement of others who have expertise and experience, as is recognised in the consultation document, and ensure that the strategy is as strong as it needs to be, if the approach is to be the step change that we hope it will be.

[Chloe Smith (Norwich North) (Con)]

The hon. and learned Gentleman has tabled an extremely interesting amendment. Has he given more thought as to how “civil society” ought to be defined? If he is going to put that phrase into primary legislation, it should be well defined. Of course, he would expect there to be consequences if the director does not do what the Bill says the director must do. Could the hon. and learned Gentleman better define civil society and explain how he would enforce such a thing?

[Keir Starmer]

I am grateful to the hon. Lady for that intervention. In a sense, the intent is to formalise what was envisaged in the consultation document, which contained a fairly lengthy list—I read it out a moment ago—of stakeholders, including organisations representing employers and employees, and third sector bodies that engage with vulnerable and exploited groups. It might be helpful to go a bit further than that, but the intention was to formalise what was rightly set out in the consultation document—the bodies with which the director should engage—using the words “civil society”. That is what lies behind the amendment.

[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.

[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.

[Paul Blomfield]

Does my hon. and learned Friend accept that the nub of the Government’s argument in relation to this offence, as we understand it, is to reduce pull factors—to create a disincentive for those coming to this country to enter into illegal work? Is he concerned, as I am, that the Government seem to have no evidence that it will work? We have heard substantial evidence that this may be counterproductive, but there is no evidence from the Government that it will work as a deterrent and undermine pull factors.

[Keir Starmer]

I agree with my hon. Friend and am grateful for his intervention. What is important is that the objective behind the Bill is properly pursued. There is a real risk that introducing an offence against the employee will be counterproductive if it drives underground the very group of people who are the most vulnerable when there is little or no evidence that the offence is needed.

I want to go a little further than that, because this is an offence without any mental element in the Bill. It is strict in the sense that absent the right status, the offence is made out, and then it is an offence without a defence, which is an unusual combination in criminal law. For example, some people will be here working in the belief that they have the right status because they are sponsored by the employer or somebody else. However, unbeknown to them, they may not have status because their employer has not correctly completed all the necessary arrangements for sponsorship. They fall into a category of individuals who are here without the required status, but without any knowledge of that or any intention to be in that position. Given the inflexibility of the offence, they would be immediately criminalised without even the opportunity of raising a defence of reasonable excuse. Their defence would be, “I am working. I had understood that my employer or somebody else had completed all the necessary forms and legalities. It now transpires they haven’t, but I had absolutely no reason to think that to be the case.” At the very least, if the clause is to stand, such an offence—there could be many other examples—ought to have a reasonable excuse defence, and that argument lies behind the amendment.

[Sarah Champion]

I speak in support of my hon. and learned Friend. It is fundamentally wrong to make the employee a criminal—it makes no sense. I have not been convinced by any of the witnesses we have heard or any of the evidence that I have seen that this is the right way to achieve the Government’s objectives.

My main concern is that the measure will compound exploitation. I would like to quote Caroline Robinson, one of our witnesses, from FLEX—Focus on Labour Exploitation—who put the three issues more succinctly than I can. She said:

“First, we think that people will be fearful of coming forward to be referred into the UK national referral mechanism as victims of trafficking…The second reason is that we know that traffickers use the threat of deportation, removal and reporting to immigration officials in order to abuse and exploit workers…The third reason is something that was raised a lot on Second Reading, namely the criminalisation of trafficked persons. Although the Home Secretary set out the statutory defence, which is in the Modern Slavery Act 2015, it is quite narrow in its terms. The schedules exclude a number of offences for the victims of trafficking, such as aggravated criminal damage, but if I was to leave the building in which I was held I would no longer be covered by the statutory defence in the Modern Slavery Act.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 24-25, Q50.]

My biggest concern is that the measure will stop whistleblowers. How will we identify bad employers if the very people who can give us that evidence are too scared to come forward for fear of being criminalised? It is not only bad employers that could be overlooked, but health and safety risks that could impact on a number of employees.

I am pleased about the Modern Slavery Act, which is a good and strong piece of legislation. I am also very pleased that the Minister has made it clear that people are protected under the Act if they are trafficked into the country. If they are used as a slave, they are exploited. However, I would like clarification from the Minister about how someone will be dealt with if their status shifts. For example, if someone was trafficked into the country and forced into slavery, but then managed to escape and became an illegal worker, would they be protected because at the start of their journey they were protected under the Modern Slavery Act, meaning that they would be treated as a victim, or would they be criminalised because, at the end of their journey, they were an illegal worker? What happens the opposite way round? If a person comes to the UK as an undocumented worker and is then exploited by their employer, at what point would they be protected if, having come to the country illegally as a worker, they were then used as a slave?

--- 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.

--- Later in debate ---

[Kate Hollern]

No, thank you.

[Keir Starmer]

In the light of the fact that we have discussed the clause and the amendment together, I do not feel the need to add anything on the amendment, save to say that we will press it to a vote.

--- Later in debate ---

Offence of employing illegal worker

[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.

--- Later in debate ---

[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)

Keir Starmer Excerpts

Tuesday 27th October 2015 Public Bill Committees

[The Chair]

We now begin line-by-line consideration of the Bill. May I congratulate members of the Committee on how enthusiastically they took part in the evidence sessions.

Before we begin, I remind Members that they may remove their jackets during Committee sittings. Everyone should also ensure that all electronic devices are switched off or to silent mode. Tea and coffee are not allowed in our sittings.

The selection list for today’s sitting is available in the room. It shows how the selected amendments have been grouped for debate. Grouped amendments are generally on the same or a similar issue. The Member who puts their name to the lead amendment in the group is called first. Other Members are then free to catch my eye to speak on all or any of the amendments in the group. A Member may speak more than once in a debate.

I work on the assumption that the Minister wishes the Committee to reach a decision on all Government amendments. Decisions on amendments take place not in the order in which they are debated but in the order in which they appear on the amendment paper. In other words, debate occurs according to the selection and grouping, and decisions are taken when we reach the clause that the amendment affects. Therefore, Members sometimes debate things and think they are going to vote on them then, but they vote on them later. I hope that that explanation is helpful.

I will use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules following debate on the relevant amendments.

Clause 1

Director of Labour Market Enforcement

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

I beg to move amendment 55, in clause 1, page 1, line 6, after subsection (1) insert—

‘(1A) The primary purpose of the Director of Labour Market Enforcement is to secure the enforcement of labour market legislation, as defined in Section 3(3) of this Act.”

To ensure that the functions of the Director of Labour Market Enforcement are exercised for the purpose of protecting those vulnerable to labour market exploitation and to make this explicit on the face of the Bill.

I preface my remarks on amendment 55 by indicating that Labour supports a director of labour market enforcement, provided that the purpose of the director is effective enforcement of labour standards and that the relevant agencies are properly resourced to that end. That is the in principle position. With that, there should be no overlap with or merging into inspectorate or immigration enforcement functions. Part of the Bill and the Government’s associated consultation document suggests that the role is a director of labour market enforcement in name but not in design. The aim of amendment 55 is to resolve that issue.

The purpose of the amendment is to ensure that the functions of the director of labour market enforcement are exercised for the purpose of protecting those vulnerable to labour market exploitation and to make that explicit in the Bill. I will not go through the wording unless that is necessary. It is proposed that the director will report to the Home Secretary and to the Secretary of State for Business, Innovation and Skills. That is welcome, but the position is being created via an Immigration Bill sponsored by the Home Office. Therefore, that concern, and particularly the overlap between immigration enforcement and labour market enforcement, gives rise to the amendment.

Immigration enforcement threatens the success of labour inspection. A better approach to reducing illegal working is effectively to enforce labour standards, thereby reducing the demand for illegal workers, who are more vulnerable to being exploited due to their irregular immigration status. The OSCE has said:

“A rising challenge to effective labour inspection is an increasingly widespread imposition of measures that compel labour inspectors to conduct immigration enforcement activity as part of their workplace inspection agenda.”

That is the concern that we have about the Bill—hence, amendment 55.

The International Labour Organisation said:

“the primary duty of labour inspectors is to protect workers and not to enforce immigration law.”

Other countries have experienced the dangers of merging those two functions. For example, research in the Netherlands shows that dual labour inspection priorities to identify, on the one hand, undocumented workers, and, on the other hand, victims of trafficking have negative impacts on the uncovering of trafficking cases. There are two reasons for that. One is that victims of trafficking are too scared to come forward and the second is that labour inspectors fail to identify them. In the Dutch research, there is a classic example of that, involving an individual who was trafficked into commercial cleaning in the Netherlands. Labour inspectors came to his workplace on many occasions, but he did not come forward; in fact, he claimed not to work in the establishment rather than come forward and be identified as an employee. For that reason, he was missed by the inspectors. As I say, this is a classic example of its type.

It is not just in the Netherlands where there is such evidence. In the USA, there is now a memorandum of understanding between the Department of Labor and the Department of Homeland Security, the purpose of which is to ensure that immigration control does not interfere with the protection of workers’ rights. For example, when the Wages and Hours Directorate investigates a case of unpaid wages, its officials must not ask for immigration documents. So there is a clear separation of roles, and the fact that workers’ rights are protected in the USA regardless of immigration status prevents retaliation and intimidation by employers, who could otherwise threaten to report undocumented workers if they exercised their labour rights. Our position is that in order to tackle labour exploitation effectively, there must be a strict firewall between immigration control and labour inspection. That offers the best prospect of success for this director of labour market enforcement.

We have some questions for the Minister, and I will just run quickly through them; he may be able to pick up on them in his remarks. First, how will the director of labour market enforcement prioritise non-compliance in the labour market when non-compliance constitutes a range of offences in relation to requirements set out under the labour market legislation, and what assurances are in place to ensure that the work of the director will prioritise the protection of vulnerable workers from abuse and exploitation? Secondly, what overlap will the director’s consideration of non-compliance have with the work of the Home Office to control immigration and identify undocumented workers? Thirdly, what is the intended overlap between the twin aims of tackling the undercutting of British workers by undocumented workers and addressing worker exploitation, and how does the Minister see those two aims being achieved in unison?

I have set out the principal reasons why we have tabled the amendment. It may be helpful at this stage, Mr Bone, if I indicate that although we will not push a number of amendments to a vote, we will push this one to a vote. I hope that is helpful.

[Mrs Emma Lewell-Buck (South Shields) (Lab)]

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

I will speak briefly about amendment 55, which has the modest aim of making it explicit that the new director of labour market enforcement should have a duty to stand up for those who are at risk of exploitation. This amendment has been tabled because Labour Members believe that if such a position is going to exist, whoever holds it should be responsible for enforcing all aspects of labour market law and not just some of them.

If they accept this amendment, the Government will signal that part 1 of the Bill is truly about improving labour market enforcement and not simply about grabbing headlines to bolster their credentials of being tough on immigration. If the Government are willing to make that commitment, I think we will all welcome the creation of the new director.

The amendment is important because without it there would be a worrying ambiguity in the new role of the director, which could see the resources allocated to the director directed primarily at illegal migrants in work rather than at those who employ them.

There is a tonal shift in the Bill towards criminalising the employee over the employer, which is concerning because it seems to focus on the symptom rather than the cause; the focus appears to be on the workers rather than on the organised gangs who traffic and exploit them. That approach will not have a lasting impact on illegal labour market activity in Britain. The reason is simple: if workers are arrested and deported, employers will find others to take their place. If you strike at employers, however, that market soon disappears. There is even a risk, as witnesses told us last week, that an emphasis on criminalising workers will actually be counterproductive in fighting illegal working. If people fear that they will be harshly punished if their immigration status is discovered, that can be used by their employers as a threat, driving them even further underground and opening them up to worse forms of exploitation.

The Government therefore need to make it explicit that the new director will have powers and duties that allow them to act in all areas of the labour market and that the role will be used to tackle exploitation at its source. Without that commitment, the director is unlikely to be an effective office because it will be limited to clearing up the symptoms, rather than the root causes, of labour market exploitation. Such an approach might bring some great headlines for the Home Secretary, but it will do little to prevent trafficking and abuse or to reduce the number of illegal migrants working in this country. I am sure that the Minister will agree that if public money is going to be spent establishing a new agency, we need to be sure that it is going to get results, and that is why he and his colleagues should back this amendment today.

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[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.

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[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.

[The Chair]

With this, it will be convenient to discuss the following:

Amendment 58, in clause 2, page 2, line 12, leave out paragraph (b) and insert—

“(b) contains a proposal for the year to which the strategy relates setting out—

(i) how the non-compliance outlined in the assessment required by subsection (2)(a) (i) and (ii) is to be addressed,

(ii) how the threats and obstacles identified under subsection (2)(ia) are to be overcome, and

(iii) how the provision of remedies for victims of non-compliance in the labour market identified under subsection 2(a)(ib) is to be improved.”

To ensure that the functions of the Director of Labour Market Enforcement are exercised for the purpose of enforcing all existing labour market standards, rather than prioritising a limited number of areas, and to link the Director’s strategy with his or her assessment of non-compliance with labour market standards.

Amendment 56, in clause 2, page 2, line 24, leave out subsection (3) and insert—

‘(3) The proposal mentioned in subsection (2)(b) must set out the resources required to—

(a) address the non-compliance in the labour market,

(b) overcome the threats and obstacles identified under subsection 2(b)(ia),

(c) improve the provision of remedies for victims of non-compliance in the labour market.”

To oblige the Director of Labour Market Enforcement to provide an assessment of the resources required for effective labour market enforcement and remedies for victims, rather than simply to determine how currently available resources should be allocated.

Amendment 59, in clause 2, page 2, line 26, at end insert—

‘(3A) Nothing in the strategy shall—

(a) restrict, or

(b) reduce the resources allocated to

the labour market enforcement functions as defined in Section 3(2) of this Act.”

To clarify the relationship between the Director of Labour Market Enforcement and the UK’s existing labour inspection agencies, ensuring the current role, remit and resources of labour inspectorates are safeguarded.

Amendment 65, in clause 3, page 3, line 6, at end insert—

“(da) any function of the Health and Safety Executive and the Health and Safety Executive for Northern Ireland;

(db) any function of local authorities in relation to the “relevant statutory provisions” as defined in Part 1 of the Health and Safety at Work etc. Act 1973;

(dc) any function of local authorities under the Children and Young Persons Act 1933 and by-laws made under that Act, the Management of Health and Safety at Work Regulations 1999, and the Children (Protection at Work) (Scotland) Regulations 2006.”

To include the remit of the Director of Labour Market Enforcement to cover functions relating to health and safety at work and child labour, functions carried out for the most part by local authorities.

Amendment 66, in clause 3, page 3, line 12, at end insert—

“(ca) Part 1 and The Health and Safety at Work etc. Act 1973;

(cb) Sections 3 and 4 and Part 2 of the Children and Young Persons Act 1933.”

This a consequential amendment to amendment 65.

Amendment 63, in clause 3, page 3, line 31, before “in this section”, insert “Subject to subsection 6A,”.

Amendment 64, in clause 3, page 3, line 33, at end insert—

‘(6A) A person is not prevented from being a worker, or a person seeking work, for the purposes of this section by reason of the fact that he has no right to be, or to work, in the United Kingdom.”

To ensure that labour market offences committed against all workers are included within the scope of the Director of Labour Market Enforcement’s work, irrespective of immigration status (as under subsection 2 of section 26 of the Gangmasters (Licensing) Act 2004).

Amendment 62, in clause 4, page 3, line 42, leave out paragraph (a) and insert—

“(a) An assessment of the extent to which the strategy developed under section 2 of this Act has—

(i) addressed the non-compliance identified under Section 2 (2)(a)(i),

(ii) improved the provision of remedies for victims of non-compliance in the labour market identified under 2 (2)(a)(ia), and

(iii) overcome the threats and obstacles identified under 2 (2)(a)(ib)”.

To ensure the Director of Labour Market Enforcement’s Annual Report links with his or her assessments about non-compliance in the labour market (and assessment of the remedies secured by victims and threats and obstacles to effective enforcement).

[Keir Starmer]

I should have said earlier that it is, of course, a privilege to serve under your chairmanship, Mr Bone—better late than never. If it is convenient for hon. Members, I will deal with all the amendments in one go. On the other hand, if that is not the best way forward, I hope that somebody will indicate that.

The amendments address the strategy that it is envisaged that the director will set out. Amendment 57 would ensure that the labour market enforcement strategy would include an assessment of the threats and obstacles to effective labour market enforcement, and the remedies secured by victims of labour rights infringements and labour market offences.

The Bill requires the director to make an assessment of non-compliance in the labour market, but does not require him or her to assess the threats or obstacles to effective enforcement, including, for example, powers and resources, or to examine remedies secured by victims of non-compliance in the labour market. The amendment would oblige the director to incorporate those considerations into his or her strategy—in other words, to add value to what the labour inspectorate is already doing. The director needs to look at how enforcement could be done better, as well as the extent of non-compliance.

We want to build on the victim-focused legacy of the Modern Slavery Act, so we suggest that the director should look at the remedies for victims of labour exploitation as part of his or her strategy. Let me point to some gaps in the data. Recorded data on compensation for infringements of labour market standards are limited. For example, HMRC does not keep data in a format that enables the provision of statistics on the amount of arrears paid or not paid to workers. Data on civil claims brought by victims of trafficking and damages awarded are not available.

During the financial years 2010-11 to 2012-13, no prosecutions by the Gangmasters Licensing Authority resulted in compensation orders for victims of human trafficking. Data on compensation secured through the criminal injuries compensation scheme for victims of human trafficking for non-sexual exploitation, forced labour, slavery and servitude are not being recorded, so there are clear gaps. Why does not the Bill make provision for the director to assess why non-compliance is at its current level, as well as an assessment of non-compliance within the labour standards? How can the Government know whether they are making progress on meeting the needs of victims of exploitation if they are not collecting data on remedies?

[Craig Whittaker]

The hon. and learned Gentleman and I both had lives outside this place before we were elected, and I know that he had a high-profile role. Has he written a strategy for any job he has held that did not take account of threats and obstacles relating to the strategy that he was trying to write?

[Keir Starmer]

The straight answer is no; of course that would be within the strategy. The purpose of the amendment is to make it clear that that has to be part of the strategy for this director. I am sure that members of the Committee share concerns about resources. The amendment is an attempt to ensure that this step forward is as effective as possible, and that touches on strategy and resources. While my answer to the hon. Gentleman is no, I do not think that that is a good enough reason not to support the amendment.

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[Paul Blomfield]

Is my hon. and learned Friend, like me, keen for the Minister to give us a bit more clarity about what seems to be a shift in narrative towards more serious issues of exploitation, which has not been defined? Our hope is that we are seeking to enforce all standards for all workers.

[Keir Starmer]

Yes, I thank my hon. Friend for his contribution. I will come later to where the director will put his or her emphasis—on what might be called the higher end breaches, or on more routine breaches. I welcome that contribution and I ask the Minister to deal with it if he can in his comments.

Amendment 59 is intended to clarify the relationship between the director of labour market enforcement and the UK’s existing labour inspection agencies, ensuring that the current role, remit and resources of labour inspectorates are safeguarded. By way of background, I give an example, because practical realities follow from what we hope is a very good initiative. This year we saw the pay and work rights helpline merge with the Advisory, Conciliation and Arbitration Service. The pay and work rights helpline used to provide vital advice; it was a service with an annual cost of £500,000, yet, when it was merged, the money did not go with it, which has led to a strain on the service. As a result, ACAS struggles to meet extra demand with no extra resources. There is some evidence that representatives have been asked not to use it. By making explicit the resource implications in the strategy, we hope to avoid this sort of implication. Where there is a merger of various functions and enforcement without the resources, it becomes ineffective.

[Sarah Champion]

I give another example. During the witness session, I asked Professor Metcalf whether he believed that there were sufficient resources and he said,

“Probably not, but in the consultation document and, I think, in the Bill, it does not actually set out quite what the resources are.”

I went on to ask him what he thought they should be and he said:

“One understands the difficulties with the public finances, but we probably do not have sufficient resources. In the low-skilled report, we calculated that you would get an inspection from HMRC once every 250 years and you would get a prosecution once in a million years. That suggests that we do not have enough resources. In turn, that takes you to the potential trade-off between the resources and the punishments.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 19-20, Q36-37.]

[Keir Starmer]

I am grateful for that intervention, which is another example from the evidence that we heard last week about resources. Unless we tackle the resources issue head on, all that will be achieved is the creation of a director without any real powers to carry out the functions, which I think everybody accepts need to be enforced and enhanced. In a sense, if we try to do more with less, services are jeopardised and, in truth, the vulnerable workers suffer and we will not succeed in reducing the pull factor for illegal migration because exploitation will not be uncovered and penalised.

By way of example, the number of Gangmasters Licensing Authority investigations into the illegal activities of gangmasters dropped from 134 in 2011 to 68 in 2014, and prosecutions were down from 19 in 2010 to three in 2014. I accept that underlying this reduction will be some intelligence-led work, but those figures are stark and they underline the general point made by the witnesses last week, namely, that the concern about labour market enforcement is not so much about the agencies and the enforcement powers as about the fact that the resources are simply not there to allow for investigations and action to be taken very frequently. Unless that problem is addressed head-on, there is the danger that all we will create is a director who does not actually carry out the enhanced functions that it is hoped will be carried out.

Sticking with the GLA itself, its budget, of course, has been cut by 20% since 2010, so we are in an environment where the enforcement agencies are already suffering quite significant cuts. It means that the GLA regulates labour in a £100 billion sector with a budget of 0.004% of that figure.

I have some questions that I hope the Minister will be able to address in his reply. On page 8 of the Government’s consultation document, “Labour market exploitation: improving enforcement”, it states that there has been

“a shift from abuses of employment regulation towards increasingly organised criminal activity engaged in labour market exploitation.”

That shift has occurred during the past 10 years. But what is the evidential basis for that assertion? In other words, that is the shift of abuse from, as it were, lower-level routine abuse to increasingly organised criminal activity. Linked to that is another question. Does the Minister agree that if we do not enforce employment legislation effectively at the lower end of abuse—if you like, minimum wage, health and safety and so on—we will create conditions for higher levels of abuse to develop. So, as I say, where is the evidence to support that assertion? And if we abandon the lower end or do not put resource into it, do we not run the risk of creating conditions in which unscrupulous employers will get away with whatever they want?

Amendments 65 and 66 would include the functions relating to health and safety at work and child labour within the remit of the director. May I just be clear about the spirit in which amendment 65 was tabled? It aims to explore the thinking behind the division of functions here, and to understand why all the functions are not brought together under this director, while also recognising—as we do—the work that the Health and Safety Executive is currently undertaking. So, amendment 65 was tabled in that spirit of properly understanding the Bill’s limited remit. The health and safety at work aspects of the Bill speak for themselves; I think that the child labour functions are enforced by local authorities.

Earlier this morning, the Minister said that the purpose of the Bill was to cover the whole spectrum of labour market enforcement, and therefore the ownership of the HSE and of the legislation to deal with child labour were obvious. There may have been a good deal of thinking behind that, but it would be useful through this exercise to understand that thinking properly, because the exclusion of those functions from the remit of the director of labour market enforcement could have an influence on the issue addressed by amendment 55, namely, the primary purpose of the director. Why is the HSE excluded and what is the thinking behind that exclusion?

Of course, there is also a budgetary consideration. The budget of the three labour inspection agencies covered in part 1 amounts to just over £14 million. That is compared with the £81 million for the Health and Safety Executive, which adopts a cross-labour market role. If the aim is to cover the whole spectrum and there are already resource considerations—of course there are—why do these provisions not cover the whole spectrum and leave out the health and safety and child labour aspects?

Amendments 63 and 64 aim to ensure that labour market offences committed against all workers are included within the scope of the director of labour market enforcement’s work, irrespective of immigration status. I will try to explain our concern clearly. Trafficking offences, as we understand it, are outside the remit of the Bill, save where they touch on the role of workers. That makes sense on one level because we would not expect the director of labour market enforcement to be looking at trafficking offences outside the employment or labour context. The problem as we see it—which may simply require clarification or may require amendment—is that the definition of “worker” within the Bill is then not wide enough to cover all those who may be in the labour market, including undocumented victims of trafficking. Perhaps there is a clear explanation; there may be a simple amendment. We follow the logic of the scheme, but we are concerned that the definition of “worker” is in fact too narrow and will leave some who it is probably the intention of the Government to include outside the scope of the protection. The amendment is put forward in that spirit.

[Sarah Champion]

On that point, I wonder if the Minister could also clarify why clauses 3 and 9 use two different pieces of legislation relating to workers? It seems to be a bit of an anomaly. Some clarity on that would be welcome.

[Keir Starmer]

Finally, amendment 62 touches on the annual report and is intended to ensure that the director of labour market enforcement’s annual report links with his or her assessment about non-compliance in the labour market and the remedies secured by victims and threats and obstacles to effective enforcement. The bullet point is this: as drafted, the director’s strategy does not link with his or her assessment of non-compliance in the labour market and his or her annual report does not link back to the assessment of non-compliance as a baseline. The amendment aims to ensure that the strategy covers everything that it should and that the annual report is tied into the same process.

[Mrs Lewell-Buck]

I rise to support the Opposition amendments, which will be helpful in clarifying the role and duties of the director of labour market enforcement. I will also echo some of the comments made by my hon. and learned Friend the Member for Holborn and St Pancras.

The creation of the role is welcome, as my hon. Friends have said, but if the director is to have real influence and impact, they need to be involved across enforcement of labour market standards and not confined to a narrow area. The director should be able to take the lead on issues of labour market enforcement, to command respect from employers and be a strong advocate for compliance and tougher enforcement. The Opposition amendments are designed to make that happen. Amendment 56, for example, would require the new director to set out the resources that are needed for effective labour market enforcement.

Witnesses told the Committee that the problems with the immigration system are due not to a lack of powers but to a lack of resources, which undermines enforcement. The Government can introduce all the legislation they like, but criminal employers will not bat an eyelid unless they believe that there is an actual chance of their door being kicked down. That chance is incredibly low right now. The UK has less than one inspector per 100,000 workers, which is one of the worst ratios in Europe. The director should be able to tell the Government when they are not doing enough, and amendment 57 would introduce a clear duty to examine and identify where enforcement is failing and where there are obstacles to effective enforcement, thereby helping to identify where further resources are needed. There are currently too few data on the scale of labour market exploitation, and the director could and should be able to fill that gap.

--- Later in debate ---

[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 (Third sitting)

Keir Starmer Excerpts

Thursday 22nd October 2015 Public Bill Committees

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

Q 192 Thank you, panel, for coming to give evidence to us this morning. I want to ask about appeals, bail and enforcement action by immigration officers, and I will take them in that order. May I start with appeals, and ask for your views on the quality of the initial decision making by the Home Office—by UK Visas and Immigration—before we get to the question of appeals?

Manjit Gill: I can say something very briefly on the quality of initial decision making; others will probably want to comment. It is perhaps the most critical feature of the problem. The quality of initial decision-making is unspeakable. About the impact of the appeal provisions on children, I have particular concerns. I speak only in my individual capacity.

You may have come across decisions of the upper tribunal, and particularly of the president, Mr Justice McCloskey. In a case called “J.O.”—I can send you copies if need be—he severely criticised how the interests of children are dealt with in decision letters. They seem simply to pay lip service to the best interest duty. He basically tore the decision-making process to pieces in his decision. I do not know what steps are being taken in the Home Office to rectify that.

As regards other decision making outside children’s cases, the tendency is to put all the burden on the appellant. I can see that the appellant or the person concerned should bear the burden—initially, at any rate—of having to say something about why they should not be deported or removed pending appeal, but more must be done in terms of the actual inquiries made by the Home Office. I had better not say any more at this stage.

[Keir Starmer]

Q 193 Liberty has suggested that in the period April to June 2015, 39% of immigration appeals were allowed at the first-tier tribunal. Does that chime with your experience?

Adrian Berry: Yes. The annual figure for last year was that about 40% of appeals were allowed. It was slightly higher, I think, in the two previous years. That is indicative, perhaps, of the quality of decision making, but it does not necessarily capture the whole story in relation to the reasoning and how decisions are made. Decisions may survive judicial scrutiny but none the less be poorly reasoned and have an inappropriate or insufficient grasp of the detail of an individual’s circumstances. They are a genre of their own, in literary terms. You see a formulaic approach toward the appreciation of individual people’s lives that is dispiriting, when it comes to understanding what individual consideration is actually being given.

[Keir Starmer]

Q 194 Thank you. Do any other panel members want to comment on that question before I move on?

Colin Yeo: There is slight variation in the figures. Different types of case have different success rates. The overall figure is about 40%; it was a little higher in some previous years. However, for example, in the managed migration statistics, it is about 42% of appeals, and it is much lower in some other kinds of case, such as deportation cases. The success rate is much lower there. That compares to a success rate, I understand—I am not a tax specialist—in tax tribunals of about 25%.

Obviously, immigration cases involve profound questions about where somebody lives, or contact between parents and children or between spouses. It is very important that those decisions are right, and the fact that there is such a high success rate on appeal, which is, realistically, the best measure we have got of such things is a real concern.

[The Chair]

Before we move on, I think that Craig Whittaker wants to come in on that point.

[Craig Whittaker]

Q 196 I understand that, but what I am trying to establish is that if it is 40% of those who apply, but the appeal process involves only 5% of all applicants, it is actually a relatively small number. I was just trying to put it into some perspective.

Colin Yeo: I do not have the statistics for that. I have never seen those statistics, either, so I cannot help the Committee. I am sorry.

[Keir Starmer]

Q 197 Let us move on to the question of appeal and the extension of the “remove first, appeal later” provisions, which is in the Immigration Bill. Will you give the Committee an indication of the practical differences between what is involved in appealing in country here and appealing once you have been removed, just in relation to the nuts and bolts of it? Some of us around the room are lawyers. Some of us have been involved in cases, but not everybody has, so will you give us a practical example of what actually happens if you are here, and what is envisaged, or what does happen, if you are removed, so that people get a sense of the difference between the two?

Manjit Gill: May I say something briefly on that? First, insofar as contact with your own lawyer is concerned, here, with or without the difficulties of funding—and there are enormous difficulties, as you have just heard—at least you can go and see your lawyer, and your lawyer can come and see you. You can get the witness statements sorted and give the instructions face to face. If you are having to give all those instructions from abroad, just imagine the practical difficulties and impediments to instructing your lawyer in the first place in order to prepare the case.

In children’s cases, how do you go about the process of getting an independent expert’s report? How is the child expert going to be able to assess the damage that will be caused by the separation—even a short-term separation—if the separation has already occurred? They are simply not going to be able to do it. Instead of having to prepare their reports from the point of view of prevention of harm to the child, they are going to have to do it from a removed location from the point of view of remedial action to remedy the harm that has already been done to the child by taking the father away and making him appeal from abroad.

Even if you manage all that and get to the appeal hearing itself, how are you going to give the oral evidence? A lot depends on how you come across to a court or tribunal. A lot depends on what happens in the courtroom. Here, we can all see each other and what is happening on people’s faces—who is a little bit upset, who is happy and so on. These things just do not come across when you have to do it through a video link.

Moreover, the tribunal does not allow a system of video links unless they have approved the actual source. They do not allow you to walk into an internet café or to use Skype. British embassies and high commissions simply do not provide the service. The Home Office does not pay for that service, nor does the tribunal; you yourself are going to have to pay to put in place a system whereby you can give oral evidence. There are a lot more things that I could say, but I am trying to keep it brief.

[Keir Starmer]

Q 198 Do any other members of the panel have any comments on the practical issues?

Adrian Berry: In addition to what Manjit has said, the difficulties include compiling exhibits, for example, behind a witness statement. If you are looking at getting reports, such as medical reports of actual treatment, or gathering documentary evidence of a life that has been led and you want to go over those documents with the individual in question, having those documents on the table in front of you, face-to-face in a live encounter, is very different.

Preparing an appeal is a rolling process. You are drafting statements and possibly re-drafting them, and looking at the statements of people writing in support and considering them against the documentary evidence that you are assembling—in a family life case, for example—and to do all that remotely is formidably difficult. In some instances, even in legal cases in the commercial court, the High Court in London has had to take evidence in Zambia, for example, for a complex commercial case, because it is difficult to do it over the internet or remotely. That sort of highlights the issue for us. If you are trying to run a case remotely about someone’s life, with a whole batch of documentary evidence that requires consideration in addition to assembling expert reports, there is a degradation of the quality of the job that you are able to do that cannot be compensated for.

[Keir Starmer]

Q 199 Following on from that, obviously some changes were made a year or so ago. Can the panel give us their view on the impact of the changes to “remove first, appeal later”? I think that there is an outstanding Court of Appeal case that it might be useful to know a little about.

Manjit Gill: At the moment, because there have been so few appeals, it is difficult to tell. Mr Brokenshire gave a written answer on 14 October in which he said, and he will know this far better than I do:

“From July 2014 to August 2015, more than 1,700 foreign national offenders have been removed under the deport first, appeal later powers, with many more going through the system. Of these, 426 have made an appeal against their deportation and 13 (0.7%) have been successful.”

You can see that having to go abroad and appeal from abroad inevitably results in impediments, which reduce the number of people who appeal at all and have an impact on the appeal rates of success. There may be other reasons, of course, and I fully understand that.

To answer your question, it is very difficult to tell what will happen. One thing that can be predicted with absolute certainty is that there will be even more burdens on the tribunals and even more delays in the system. At the moment, not only is the initial decision making by the Home Office bad but the tribunal system is under severe pressure. Courtrooms are being closed and not used. The number of hearings that are being run is being reduced. There have been massive delays even for in-country appeals. For out-of-country appeals, the delays are even longer. Just consider what the harm is going to be to separated families.

Moreover, this poses massive problems for the tribunals themselves. It is all very well to say that the problems caused by the new system will have to be remedied by the tribunals, but I do not know what the Minister of Justice thinks about that. Who is actually going to provide the extra money that will be needed to remedy the problems? Would it not be much simpler to speed up the appeal process in this country and let people appeal from here? If their appeals are so hopeless, they can be removed very quickly.

Colin Yeo: I acted in a relatively early case, and what happened is perhaps instructive. It was a gentleman who had committed a criminal offence, and he had received a sentence in excess of 12 months, so he fell under automatic deportation. He had been in this country since the age of six, however, and he was in his 30s. He was removed before he was able to appeal in the fairly early days of these new powers. He also had children in this country, and he had contact with those children before he was detained—before he went into prison. He also had some other children with whom he had managed to secure contact through the courts, and whom he had lost contact with because his ex-partner was unco-operative. He was simply unable to pursue an appeal. He was removed to a country far away, where he had not been since early childhood, and we simply lost contact with him.

That was a result as far as the Home Office is concerned, I am sure, because he has not pursued an appeal, there is no expense there and it is another foreign criminal removed. There were some children who were profoundly affected by that, however, as was he. He had been in this country for in excess of 20 years, and he simply had no opportunity to argue his case in front of an independent judge. That is, I think, a profoundly concerning outcome. In real terms, people are just not able to pursue an independent remedy. When you have got such poor-quality decision making in the first instance, that is a real concern.

[The Chair]

May I just make it clear—I am sure that we have not strayed on this—that we should not be talking about any active appeals? I do not think that we were; I think they were historic appeals. We just need to bear that in mind.

--- Later in debate ---

[Simon Hoare]

Q 202 With respect, Sir, he did, through an appeal post-deportation. Whether he availed himself of that opportunity would have been entirely up to him. Correct?

Colin Yeo: In theory, yes, but in practice I think it would have been rather hard for him to pursue an appeal from a country that he didn’t know, basically.

[Keir Starmer]

I will ask a supplementary.

[The Chair]

The Minister has been very patient; he wants to ask a question.

--- Later in debate ---

[The Chair]

Order. I know that this goes right to the heart of the issue, but we have four other panel members and we have been speaking for quite a long time on this particular point. Going back to you, Mr Starmer, do you want to move on a bit?

[Keir Starmer]

Q 210 I have one final question, about support appeals, but I take the point, Mr Bone; if the panel members cannot deal with the question we can move on even more quickly. Asylum support provisions are being changed—specifically, the support provided after the exhaustion of the asylum process. Will panel members give an assessment of the quality of the decisions on support at the moment? Some briefings have suggested that the success rate of appeals against decisions on support was as high as 60%. Can any of the panel members deal with that? That is obviously a very high success rate; by success rate, I mean that the decision is either overturned, withdrawn or has to be retaken—in other words, the original decision is disturbed. Is that a figure that anyone can give any evidence about?

Adrian Berry: I cannot give evidence about the precise figure, but I have appeared at the Asylum Support Tribunal and conducted appeals against refusals of support. The existence of that remedy of a right of appeal is a vital safeguard. When asylum support is refused you are potentially dealing with someone literally being destitute, which is contrary to article 3 of the European convention on human rights in the sense of having a want of food, shelter and essential living needs. A vital safeguard is provided by having a merits appeal, where you can give evidence about your circumstances. Equally, the Home Office has the opportunity to present its case for why support should be refused within the statutory framework that allows you to moderate the provision of asylum support.

That is a vital safeguard. Anything that removes that right of appeal is removing not simply the idea of a right of appeal—it is a good idea to have independent judicial scrutiny of Executive decision making. It also leaves people hungry and without a roof over their head. So it is a fine example of a coincidence of social provision and proper scrutiny of Executive decision making.

[Keir Starmer]

Q 211 It is one thing to remove a right of appeal where there is a very low rate of success, but another to remove it where there is very high rate of success. Does the 60% rate I quoted, which has been given in papers before us, surprise you?

Adrian Berry: No, not at all. In my experience, it is usual to win them, if I may put it like that. I do not have precise statistics, but in the cases that I have been involved in before the Asylum Support Tribunal, if you have a point about the need for support, you have a point.

[Keir Starmer]

Q 212 Just as a general proposition, in relation to administrative decision making, a 60% success rate, or disturbance of the decision made, is very high, is it not?

Adrian Berry: Yes.

Colin Yeo: Before we move on from this topic, we have just been giving evidence, in effect, about changes that have already occurred under the 2014 Act. What is proposed in the Bill is an extension of those changes to all categories of immigration appeal. We are very concerned about that as well; it is one thing to talk about foreign criminals, risk cases and so on, as we have briefly, but it is another thing to apply that to migrants who are lawfully present in the UK. They might receive an incorrect decision from the Home Office, and we know that there is a reasonable number of those, with the appeals success rate at 40% or more. They will be forced to leave the UK for the duration of the appeal process, potentially leaving their children and spouse behind, losing their job and losing their home, only to win their appeal—if they can, despite having one hand tied behind their back in an adversarial process because they are abroad—and then be brought back. That seems to be an absurd thing to do to people who are lawfully present.

Some of the press releases from the Minister, for example, have talked about doing that to people who are unlawfully present. That is one thing, but the powers being taken in the Bill would apply that to all migrants. So it would not only be those who are unlawfully present; it would also be lawful migrants, where there is simply a mistaken decision by the Home Office. An appeal takes months at the moment—I have an appeal that has taken 18 months to get listed—and that has drastic consequences for a family in the meantime.

[Keir Starmer]

May I move to—

[The Chair]

Before we move on, does any other member of the Committee wish to ask a question on this particular point?

Immigration Bill (Fourth sitting)

Keir Starmer Excerpts

Thursday 22nd October 2015 Public Bill Committees

[The Chair]

Before we start, do not be surprised if the Minister asks questions, because he can at this session. It is helpful if you speak into the microphone, because the acoustics are not always so good in this room.

Mr Starmer, do you want to start?

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

Q 242 Thank you, witnesses, for coming in and helping us this afternoon. I want to start with the provisions in the Bill to remove support from those who have exhausted their asylum process. Until now there has been an ability to remove the support, but it has been rarely used. There was a pilot 10 years or so ago and it has been used rarely since then. Can you give the Committee your view on why the pilot was unsuccessful? I think it involved about 116 families and the net result was that very few, if any, of those families went voluntarily, which was the intended purpose. There was a possibly unintended consequence, which was that very many more went off the radar, and all sorts of other consequences followed. So can you give us your own view as to why you think that pilot was so unsuccessful?

Councillor Simmonds: I am happy to lead on this. I think others may have technical comments about aspects of it. It is pretty clear that quite a tangled web of legislation needs to be gone through before support can be removed. Once it is removed in the formal sense, there are a lot of organisations that exist to provide support to families for the time in which they remain in the UK. There will pretty much always be, in my experience, other legal avenues that people can explore should one particular avenue be closed down.

The key concern that local government has is that the evidence from those pilots was extremely clear in that the withdrawal of support does not result in a significant incentive for people to leave the UK. The conclusion that follows is that we should not expect that withdrawal of support in future would result in any significant increase in the numbers departing. We would expect that the cost burdens, whether they fall on local authorities or on civil and voluntary groups in the wider sense, would remain.

Paul Greenhalgh: Barnardo’s did an evaluation of the pilot programme. Not only did people not leave but 35 families out of the 116 families went missing; in a sense, they decided to go underground. Some of those families abandoned their children to the care of local authorities, and that pilot led us to question the assumptions about behavioural change that underpin some aspects of the Bill.

[Keir Starmer]

Q 243 May I clarify one thing I think you just said? Did you say that a number of parents abandoned their children to the care of local authorities, so their children went into care?

Paul Greenhalgh: They abandoned their children, so those children were taken into care by the relevant local authorities. I am not sure how many families that applied to, but it applied to some of those 35.

Henry St Clair Miller: The only thing I would add is that people who were around at the time felt that there was a lack of Home Office engagement with the families in that process up to the point when support was withdrawn. Perhaps engagement was not of the nature necessary for families to know their options and understand the consequences of not engaging with Home Office requirements. Should the Bill go ahead, one of the unknowns is exactly what Home Office engagement with the families would be. We might see again the likelihood of asylum support being withdrawn at the end of the process. We want to know exactly what that engagement will be to minimise the risk described by my colleagues.

[Keir Starmer]

Q 244 Back in 2008, Mr Duncan Smith—obviously he is now in a different role—described it as a “failed policy”. That may explain why it has not been used since the pilot. Do you disagree with that conclusion?

Councillor Simmonds: It manifestly did not work at the time. Therefore, if we were to revisit that as an approach, we would need to think very carefully about how it could be made effective. That would require a different approach on many, many levels.

Paul Greenhalgh: I agree with that comment. We have been working with the Home Office to explore areas in which we wonder whether further safeguards might make such an approach more effective.

[Sarah Champion (Rotherham) (Lab)]

Q 245 On that point, Mr Greenhalgh used the phrase behavioural change. I think we all understand what the Government are trying to achieve, but you do not believe that the Bill does that. What should be in the Bill to get the behavioural change that the Government are trying to achieve?

Paul Greenhalgh: One of the difficulties with the Bill as currently framed is that there will be a number of what we would perceive as unintended consequences. They are twofold, mainly around our duties to provide support and care in certain circumstances arising from the Children Act 1989 and the Care Act 2014. Mainly, section 17 of the Children Act is something that would come into play in these sorts of cases.

At the moment, 80% of those cases are funded by no recourse to public funds arrangements as a result of a Children Act assessment. As a result of the current drafting of the Bill, a lot of families who would receive no further support as a result of their asylum status being confirmed would come to the local authority if they were about to become destitute. The local authority would be bound to make a human rights assessment and, if there are children involved, a children in need assessment. Those assessments take some time, so if a family are at immediate risk of destitution, we would have to put immediate measures in place.

So the first of our significant concerns is that this could result in a huge increase in demand on local authorities, which would in effect be a cost shunt from the Home Office to local authorities in an unfunded way. The other consequence is the danger that people will not come to local authorities but will go underground, and therefore be more at risk of exploitation and less able to be supported by the authorities.

If those are our concerns, we think some measures need to be put in place to provide appropriate safeguards. First, there should be a clarification of assessment processes, to reduce the burden falling on local authorities and the difficulty for families of having to go through what at the moment are two assessment processes. If the assessment process could be streamlined, that would be one improvement to the Bill.

The other significant issue is funding and the extent to which, however we frame the Bill, it will result in more cost to local authorities to support people on an interim basis. If there is recognition that those costs are a new burden, and if there is engagement between local authorities and the Home Office to work together on a practical level to support those families and help them to engage, we could see some of the intention of the Bill working more effectively.

--- Later in debate ---

[The Chair]

A number of Members want to come in, but I interrupted Mr Starmer.

[Keir Starmer]

Q 249 May I go back to a couple of answers that were given? First, on streamlining the assessment process, I think that you mentioned two assessments. Is the first the assessment for asylum support in the first place and the second the assessment for the local authority, or are there two local authority assessments?

Paul Greenhalgh: There are two local authority assessments. When people come to local authorities for support, they often come because their situation has worsened and they need support to avoid destitution. Often, it is about accommodation and subsistence support. The local authority, under section 17 of the Children Act, has wider obligations to consider the welfare needs of the child in whatever circumstances. When people have gone through an asylum process, we need to conduct a human rights assessment to determine whether ending support would be a breach of their human rights, before we complete the children in need assessment. That is a burdensome process for local authorities and for families.

[Keir Starmer]

Q 250 I just want to pick up a second point. Evidence has been given that the objective is that people leave, and therefore there is no burden on anyone to provide any support, but the evidence from the 2005 pilot seems to show pretty strongly that if that is the objective, this is not the way to achieve it. The likelihood is, therefore, that local authorities will be picking up the burden of supporting families, particularly those with children—children are children, in this.

You talked about a cost shift. What is the cost increase when asylum support is swapped for putting a child or family who are not going to go voluntarily—a child may not have any choice at all—on local authority support? It seems to me that under these provisions the cost will go up, because you take someone from one regime to a regime for which they have to go through two assessments, which someone has to carry out, and be put on to temporary support and further support. They could have become more destitute and so need more support. Am I right in thinking that this is not just a cost shunt—you are not simply moving cost x from the Home Office to the local authority but shifting and increasing it, so the cost to the taxpayer goes up?

Paul Greenhalgh: Potentially, yes, under how the Bill is currently drafted.

[Craig Whittaker (Calder Valley) (Con)]

Q 251 I want to drill down on the shift of the cost burden from the Home Office to local authorities. We already know that schedule 3 to the Nationality, Immigration and Asylum Act 2002 broadly limits access to local authority social care for families anyway. Is there not a mechanism between local authorities and the Home Office that is triggered when a family present themselves and it becomes clear that they are in this country unlawfully, so that they get deported and the local authority does not have to shoulder the burden of the cost?

Henry St Clair Miller: I think you are referring to the exclusions from social services support under schedule 3 to the Nationality, Immigration and Asylum Act 2002, whereby if a local authority is working with someone in an excluded group—a failed asylum seeker would likely fall within the excluded groups—the authority is instructed to provide support only if it is necessary for the purpose of avoiding a breach of human rights. It is that exception to the exclusion that gives rise to the human rights assessment, which can be quite time consuming for a local authority.

When you work in this area you have to be quite specific about each client group. It is true that an asylum seeker who has already put in an application has been through the courts, and the courts have decided that there would be no human rights breach in returning the family to the parents’ country of origin. The best interests of the child will have been looked at within that, and the courts will have decided that. It should then be possible for the local authority to follow the same line within the human rights assessment and opt to say that no assistance is required other than a return to the country of origin through assisted voluntary return.

It is a little bit different in our experience, because a lot of the applicants go on to put in further representations under the UK’s immigration rules. That is often on the basis of article 8 human rights and on the basis of there being children. Once the application goes in, there is a legal barrier to that family leaving, and it is impossible to enact schedule 3 to withhold support if the family is destitute.

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[The Chair]

It is one wish.

Karl Pike: Appeals should be allowed for section 95A. In cases where it is refused, we should have the right to appeal. The appeal success rate is so high at the moment that not having it is clearly going to hide very bad decision making, and those people will come to us because they will not have food or clothing.

Andrew Hewett: I am going to take my wish, as well, so we have two as the British Red Cross. For me, it is the grace period. If you really want to engage people in some of the difficult and complex decisions you might have to make, people will need to be fed and have a roof over their heads while they are considering those. It is very difficult to do all that within 28 days so we will be supporting a move towards a longer grace period of 90 days, to enable those discussions and consultations, and explore and exhaust all possible avenues during that time.

Peter Grady: If I had my one wish, to step away from this issue—although I would argue that it is within the scope of the Bill—it would be for the introduction of a time limit on detention. There are detention provisions there. We see that as being an area where it would help to ensure compliance with what UNHCR views as being international standards relating to detention. That is something we would strongly welcome.

[Keir Starmer]

Q 289 I will try to do this in one question. I want to draw together some of the examples you have given to make sure that I have understood the evidence. This is about the appeals for support. Let us say you have a case where there is a genuine obstacle to removal—for example, an Eritrean person who, for one reason or another, cannot get the right document to put before the Home Office. They are considered not to be destitute when they are, so the decision is made that they are not going to be given support. They then come to see you and you, the charity, provide them with a letter, so they have something that is almost certain to win on appeal, and they will at least get their support. If this Bill goes through, they are exactly the kind of person who will be stuck with a bad decision and no support, notwithstanding the fact that they are destitute and have a genuine obstacle to removal. It is simply tough on them.

Karl Pike: Yes. It might help you to know that Eritreans are the largest single group of destitute people this year.

[Keir Starmer]

Q 290 But it is just tough on them. We made the wrong decision, and though they have a piece of paper that means they would win on appeal, it is just tough. That is the effect of the Bill.

Karl Pike: Yes.

Andrew Hewett: They will be made homeless and destitute. That makes it even more difficult if they want to progress to a voluntary return programme.

[Kelly Tolhurst]

Q 291 You mentioned that you think the removal of support will drive people underground. Can you explain to me what you regard to be underground and how that works?

Karl Pike: From the pilot, people absconded. I do not know whether the Home Office followed it up with any further research as to where they had gone, but people often assume it means they can end up working illegally somewhere and potentially being quite badly exploited. This Bill creates an offence of illegal working as well. If all the provisions are the same, some people might end up absconding and end up in prison for illegal working six months later.

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[The Chair]

Thank you. Mr Starmer will start.

[Keir Starmer]

Q 294 Thank you, panel, for coming to give evidence to us this afternoon. The Bill proposes to make changes to the support that is provided to individuals who have got to the end of the process for their asylum claims. It extends the changes to the appeals process in terms of removal first and appeal afterwards. It introduces an offence of illegal working that applies to employees and expands the enforcement powers of immigration officers. Can the panel tell us what they think the human rights and equalities implications of those major changes are?

Rachel Robinson: In the broadest terms, Liberty is seriously concerned about the societal discriminatory impact of various proposals in the Bill, which bring immigration control in-country or increase in-country immigration control in terms of the rental sector and in terms of the creation of an offence of illegal working and the new offence of driving while an illegal immigrant. We are extremely concerned about the impact of the proposals on race relations and community cohesion. At the same time as these proposals are being introduced, elsewhere in the Bill, we see proposals that strip away access to appeal rights, that shift control over immigration bail from the judiciary to the Executive and that create a hostile environment, with serious implications for the most vulnerable people in our society.

At the same time, we also see the creation of an offence of illegal working, which is liable to push people into exploitative employment situations; the removal of mainstream asylum support from many families; proposals designed to freeze assets; and proposals that involve closure of bank accounts. There are serious human rights implications for the very most vulnerable people in society and discriminatory impacts together with removal of oversight.

Rebecca Hilsenrath: The Equality and Human Rights Commission supports provisions that set out to tackle unlawful working, particularly in relation to the exploitation of those whose status is uncertain, but we do have concerns. We have reviewed the Bill as a whole and we have particular concerns about the proposed reforms in relation to measures to introduce eviction powers and the reform of appeal provisions for support for failed asylum seekers. We can come back in greater detail, but broadly speaking we do not believe that due consideration has been given to obligations under the UN convention on the rights of the child. We have concerns relating to article 6 in both cases and article 8. We also have an overriding concern about the equality impact assessments undertaken in relation to the Bill. We understand that they are still under way, but the failure to provide proper evidence about equality impact at this stage undermines the ability of parliamentarians to properly debate the provisions in the Bill.

[Keir Starmer]

Q 295 Is that just a timing question, or does it go beyond that?

Rebecca Hilsenrath: We have not seen them, so it is very difficult to comment. My understanding is that what has been produced touches on financial implications but not equalities.

[Keir Starmer]

Q 296 Other panel members, what are the human rights and equality implications of these measures in particular?

Steve Symonds: In brief, for the reasons just outlined and others you have heard in your evidence sessions, I think we would generally say that they increase the likelihood of human rights abuse and they reduce the safeguards accessible to people to try to remedy or safeguard themselves from those abuses.

Saira Grant: I agree with that. I would add that the entire target of the Bill, as of the 2014 Act, is to create a hostile environment, purportedly for unlawful migrants, but, actually, what we are really concerned about and what we have already seen happening is that it targets all migrants: lawful migrants here and, indeed, citizens of this country.

Our concern is that there will be many abuses of human rights. Many people will be unlawfully targeted and discriminated against and the Bill provides no redress. That is completely lacking for those people who are unlawfully targeted by the provisions.

Keith Ashcroft: Just to echo what Rebecca said, we have real concerns about the withdrawal of support for failed asylum seekers with children and also some concerns about the extension of the deport first, appeal later provisions, which, as you know, currently apply almost exclusively to foreign national ex-offenders. We have some questions about whether it is proportionate to extend the provisions to cover those who simply wish to appeal on human rights grounds against a refusal to enter or to remain.

[The Chair]

I will ask Mr Hoare to come in in a minute. I should have said at the beginning to the witnesses that we will finish at 4 pm, not 4.30 pm as you may have been told originally. We want to get through as many questions as possible.

The other thing is, when it gets to 4 pm, there will be bells ringing. It is not the fire alarm; we will have to go and vote. You will see us all rush off at that time, so please do not be offended by that.

Immigration Bill (Second sitting)

Keir Starmer Excerpts

Tuesday 20th October 2015 Public Bill Committees

[Kelly Tolhurst (Rochester and Strood) (Con)]

Q 116 Earlier on you mentioned some of the numbers and the applicants to stay here. To what extent do you believe that the opportunities and ease of obtaining illegal work in this country are a pull for people to continue to come here?

Lord Green of Deddington: It is a major factor, absolutely. The wages here are so much higher than in the countries from which many people come—indeed they may have no means of earning a living in those countries in current conditions. I mentioned earlier that 50% of those who apply for asylum do so only when they are discovered working—or are discovered, but they will be working when they are discovered. Clearly, from their point of view, their intention was to come and work and then, as a fall-back position, apply for asylum if arrested. So, yes, that is a major factor.

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

Q 117 Mr Owen, it is a pleasure to serve under your chairmanship, and I apologise for arriving late.

I would like to ask the panel some questions about illegal working. At the moment, a number of measures can be taken in relation to both employers and employees where there is an inspection of premises and people are found to be in the country without proper status. The problem, as I understand it, has been the low rates of inspection and even lower rates of enforcement. That is the really critical issue. For that reason, steps have been taken to create a director of labour market enforcement and it is hoped there will be better strategy—streamlining and all the rest of it—but throughout those debates, and certainly when I was Director of Public Prosecutions, I cannot remember people saying that there was a problem with not having an offence that can be prosecuted. In other words, nobody has suggested, as far as I know, that there is a problem because there is not an action that can be taken against employees. There is obvious action that can be taken.

Do you know of any evidence of any cases that have not progressed because the offence of illegal working by the employee was not in place? In other words, there was an inspection, something was found to be wrong, but then there was a problem over not being able to bring a case because you did not have an offence against employees. I do not know of any evidence of that.

Lord Green of Deddington: Almost by definition it would not arise, because if there were no offence they would not be taking it further—

[Keir Starmer]

Q 118 No, I am sorry to interrupt you, but there are plenty of examples throughout our criminal proceedings sector where something happens and a team will have carried out an inspection or arrest and realised that they cannot proceed any further because there is no offence that fits the action they are trying to deal with. That is not uncommon. Usually the response is to legislate to fill what is seen to be a gap in the available offences. I have never seen any evidence here that it is a gap in the available offences that caused the problem. It seems to be that there are not enough resources to carry out inspections to enforce the measures that are already there.

[The Chair]

Can I ask for briefer answers and questions, please, if we are going to satisfy everybody on the list? Thank you.

Lord Green of Deddington: On the first point, you may well be right, but that is more for the Home Office than myself. On your second point, enforcement is essential, and it is not happening. You mentioned this director of enforcement. I think that is probably a good idea, but I would say this. The civil service is not a Meccano set; it is a plant and you cannot keep digging it up to see if it is working or not. I think we need to be careful about reorganising, organising and reorganising. On this occasion, I think there is a case for it.

--- Later in debate ---

[The Chair]

Q 119 Good afternoon. We are now hearing evidence from the sixth panel of witnesses, from the National Landlords Association, the Residential Landlords Association and the British Bankers Association. For this session we have until 3.45 pm. Could the witnesses please introduce themselves for the record?

David Smith: I am David Smith from the Residential Landlords Association, and I am the policy director.

Richard Lambert: I am Richard Lambert, chief executive officer of the National Landlords Association.

Eric Leenders: I am Eric Leenders, the executive director responsible for retail and private banking at the British Bankers Association.

[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.

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[The Solicitor General]

Q 147 Are you satisfied that these provisions will not cut through or cut across the excellent work being done by the police service on reforming stop and search and having a much more intelligence-led approach to it, as opposed to the random problems that we all acknowledge we saw in the past?

Chief Superintendent David Snelling: In terms of the example I have given, it is a series of steps that we can say objectively are what have led us to form the suspicion. We would be referring to an authorised database, owned by a Government agency. That should allay the view of various members of the public that we would just be, to use your terms, stopping people on speculation.

[Keir Starmer]

Q 148 Chief Superintendent Snelling, can I follow up on the questions about driving? You have talked us through the way in which a vehicle would be stopped at the moment, using current powers. I think a number of licences have been revoked as the result of the exercise of existing powers, and of course when you find someone in a car who is not legally allowed to be here or has an irregular immigration status, there are various enforcement actions that can be taken in any event. Have you, on behalf of the chiefs’ council or in any other capacity, asked for a further offence of driving while not having a regular immigration status? In other words, have you identified a gap in your powers that has led you to ask for further offences to be considered because you have found a problem?

Chief Superintendent David Snelling: Can I give you a short answer?

[Keir Starmer]

Yes, please.

Chief Superintendent David Snelling: No.

[Keir Starmer]

Thank you.

Chief Superintendent David Snelling: If I can slightly flesh that out—or have I been cut off by the Chair?

[The Chair]

No, you have not, but please be brief.

Chief Superintendent David Snelling: We have been involved in discussions with the Home Office that have proposed this power, but to the question whether we approached the Home Office, the answer is no.

--- Later in debate ---

[The Chair]

We are just over halfway through this session. A brief supplementary from Keir, and then I will come to Byron.

[Keir Starmer]

Q 155 Chief Superintendent Snelling, can I come back to you on a different aspect of driving? The proposed offence is driving a motor vehicle when a person is not lawfully resident in the UK. As I understand it, that means that somebody who overstays can commit the offence once they have lost their lawful right to be resident in the UK. In other words, you can have someone who is entitled to drive, has a valid driving licence, proper insurance and so on, and then on a certain day, if they overstay or go beyond their permitted residence here, they have become a criminal offender for driving a car. Do you know—if you do not, tell us—in such circumstances, is their otherwise valid insurance immediately invalid, so that they are also an uninsured driver?

Chief Superintendent David Snelling: The short answer is no. I think we would need a detailed approach to the insurance company. We often find at the roadside that some of the provisions of the legislation would still allow them to be covered as far as the legislation is concerned, although other offences may have been committed.

[Keir Starmer]

Q 156 Do you know what the situation is here?

Chief Superintendent David Snelling: I have not looked into it in enough technical detail.

[Byron Davies]

Q 157 Mr Snelling, leading on from the Minister’s questions—it is perhaps a little out of context now—on this fear about the stop and search issues, do the immigration authorities have access to the police national computer? Can they flag up on the PNC whether somebody is an illegal immigrant?

Chief Superintendent David Snelling: I am afraid I do not have that level of detail about immigration authorities’ access to the police national computer.

--- Later in debate ---

[The Chair]

I am sure that was put on the record.

[Keir Starmer]

Q 169 I have a question for all members of the panel, which really follows on from that point. In your experience and with your background, can you think of any circumstances in which the Home Office could argue that it was in the best interests of the child to remove support? Did the Home Office ever make a decision that it was in the best interests of a child to remove support?

Ilona Pinter: I think it is difficult to say that by specifically removing support, if there are no other mechanisms, that children would be protected. There are obviously some circumstances—a lot of the cases that we deal with are very complex—in which there are child protection issues. However, that would need to follow child protection proceedings. We do not believe that removing support from families will be an effective way of getting families to leave the country, and that has been shown through evidence time and time again, through the Home Office’s own evaluation.

[Keir Starmer]

Q 170 Perhaps I should just nuance the question. Are there any circumstances where support is removed in which the same support, or similar support, is not simply picked up by another agency that could ever be argued to be in the best interests of the child? Obviously, if things just swap to another agency and somebody else just picks up the bill and provides the service, it is a bit of a pointless exercise.

Adrian Matthews: Well, it either swaps to another agency or the parent puts themselves in a precarious position in order to support the child. So I think that the short answer to your question is no, there are not really any circumstances in which withdrawing support is in the best interests of the child.

Kamena Dorling: But of course what this Bill is trying to achieve, as I read it, is to increase the numbers of families returning. What we are trying to advocate is that we have a family returns process, so why not put more effort and resources into increasing the capacity of that process, through which ideally families might return? Then at that point you would be withdrawing support, because you would have already put steps in place for them to depart the UK.

Adrian Matthews: To reinforce that, if you read the reports of the independent family returns panel you see that there is quite a lot of evidence that there has been a vastly greater uptake of the voluntary return packages that are available through consistent and careful engagement by family engagement managers with those families, addressing their fears and so on and so forth. That is a much more realistic, and in the end productive, way to go, rather than simply using punitive methods of withdrawing financial support and accommodation.

[Keir Starmer]

Q 171 Thank you. I have a similar question in relation to the proposal on appeals, which is “remove first, appeal later”. Can you think of any examples where it is in the best interests of the child to remove first and appeal later?

Ilona Pinter: The difficulty is that, as I said before, there is not a best interests determination process, so we do not know what the best interests of the child are. However, that is not the same as saying that families or children should never be removed; that is not our position. Our position is that if you do not know what the best interests of the child are first, how can you do that balancing? There are obviously lots of circumstances in which it would be fine for families to return to their country of origin, and even children who have been born in the UK and grown up here would be able to adjust to another environment. It is not about never being returned but about how the process is best dealt with. To engage with children’s welfare there needs to be a conversation with families. As Adrian said, the returns process is working. The first report of the family returns panel showed that around 50% of returns did not need an ensured return. The next time the panel reported, 76% of returns did not need an ensured return. Families are co-operating, but there is a need to address those barriers to return, and that can be dealt with only with co-operation with the families, through working and engaging with them.

[Keir Starmer]

Q 172 To be clear, absent that co-operation and support, in a simple case of deport first and appeal later, is your answer as I understand it, namely, that it is simply impossible to assess whether deportation is in the best interests of the child because the exercise is never carried out?

Adrian Matthews: I would add one thing. There are enormous practical difficulties in appealing from abroad, particularly for families who have been destitute in the UK. They will be going back with virtually no resources at all; questions about how you organise an effective appeal from abroad in those circumstances need to be answered. But I do not think it will be, because once they are out of the country, they are out of sight and out of mind. Appealing from abroad is a really tricky problem.

Kamena Dorling: Presumably you can envisage a situation in which there is a mind to remove a parent or a family from the country so that they can appeal from abroad, and we would move the family unit as a whole. That might not be detrimental to the child. Families move all the time. I could remove my son from the UK with me and that would still be in his best interests. I go back to the point that we do not have an assessment of the impact on the children so we do not know.

Ilona Pinter: To put this into a little perspective, one thing that is often overlooked is that deport first, appeal later is going to affect a range of families, including those in which the children are British, those who have status, those who do not have status or those who have an irregular status. We know from the University of Oxford that 120,000 children are undocumented in this country and over half of those were born and have grown up here. Many will not have the language of the country that they are being returned to; they may have never been there, as they have grown up here. Effectively they will be going to a country to which they have never been before.

On the point about British children, which is important, we have had cases in which families have been removed where we believed that the children were British. Because there is no system for finding out the best interests of the child, or even for checking details such as whether the child is British, or whether they would be stateless if returned, there is a real risk that those families would be removed and find themselves in very difficult circumstances.

[The Solicitor General]

Q 173 You are making an assertion that the best interest of the child is not part of the consideration of the decision maker—for example, in this provision relating to certification of whether a deport first, appeal later procedure should be adopted—but is that actually right? Is not the evidence that, on a case-by-case basis, each individual family situation will be assessed? There may be occasions when it is in the best interests of the whole family to deport the entire family, and there may be instances when it is better for the child to remain in the UK while the subject of the application is deported. Is it not really an issue of looking at matters on a case-by-case basis, rather than the blanket suggestion that the best interests of the child simply do not come into it?

Ilona Pinter: I think we agree that it is on a case-by-case basis. We are saying that there is no assessment of children’s best interests. The UNHCR report highlights strong examples in which children’s best interests were not taken into account in the decision making.

Immigration Bill (First sitting)

Keir Starmer Excerpts

Tuesday 20th October 2015 Public Bill Committees

[The Chair]

We will now hear oral evidence from Still Human Still Here, the Refugee Council and the Scottish Refugee Council. Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme motion that the Committee has agreed. For this session, we have until 10.15 am. Welcome to our witnesses; will you please introduce yourselves for the record?

Mike Kaye: I am Mike Kaye, the advocacy manager for Still Human Still Here.

Judith Dennis: I am Judith Dennis, policy manager at the Refugee Council.

John Wilkes: I am John Wilkes, the chief executive of the Scottish Refugee Council.

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

Q 1 It is a pleasure to serve under your chairmanship, Mr Bone. This question is directed to Judith Dennis and Mike Kaye in the first instance. You have both expressed concern about the adverse consequences of the provisions on the removal of support in the Bill. Will you tell the Committee what, in headline terms, your concerns are? You have also expressed a concern that the provisions will fail to further the Government’s stated aim, so as well as the adverse consequences, will you outline how, if at all, the Bill will support the Government’s stated aim?

Judith Dennis: We think that the Bill is incompatible with the processes for families to engage with the Home Office if they want to return or have come to the end of the asylum process—these measures would not be compatible with that. The Bill will shift responsibility to local authority children’s services, which have a duty to support children in need. We do not think that it will achieve the desired outcome, partly because families will inevitably lose touch with the Home Office—there will be no incentive for them to keep engaging with the Home Office to try to resolve their situation. Indeed, when a similar measure was piloted in the past, that is what happened. Mike can probably talk more about the impact on individuals.

Mike Kaye: To take up that point, one of the Bill’s goals is to encourage the departure of refused asylum seekers with no lawful right to remain. Members of the Committee should be in no doubt that the Bill will not increase voluntary returns or forced removals. You do not need to take my word for that. We already have on the books section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which allows these very measures to be put in place. The Home Office’s own review of a pilot carried out in 2005 found that a third of families absconded. The review compared the pilot with a control group of people who continued to be supported, and the number of people who absconded in the pilot was double that in the control group who were supported. The number of forced removals in the pilot was one family, as compared with nine in the control group. The Home Office’s conclusion was that it did not significantly increase voluntary returns and that it should not be used as a blanket policy. It is ironic, therefore, that 10 years on, we are trying to implement the very policy that did not work beforehand. You only have to look at other reviews that have been carried out, where Home Office staff have said, “You should keep refused asylum seekers supported because it allows them to be removed”, yet the Home Office is ignoring the advice of its own staff.

I have to say that this is really an abdication of immigration control—if Committee Members are concerned about immigration control, they should be concerned about this measure—but much worse, it is an abdication of responsibilities to children’s welfare. Bear with me, and I will explain what the impact will be on the people affected. Asylum seekers generally do not have great health. You have people who have experienced torture or who have witnessed or had traumatic experiences. The Royal College of Psychiatrists said that their mental health deteriorates on impact with the system. If they are pregnant, they are three times more likely to die than the general population—that is in general. The level of support that they are on, and most of them would be destitute, is £5 a day to meet the essential living needs of food, clothing, toiletries, transport and anything else. I am not saying that you will starve on £5 a day—you will not—but if you are on that for an extended period of time, it will have consequences for your health and wellbeing.

Currently, we have more than 3,500 asylum seekers waiting more than six months for an initial decision, and appeals are listed six months ahead. Now, if you get to the point where you cut that group off entirely from support, their health will deteriorate much faster than that of the general population. It will cause and exacerbate existing health problems. You only have to look at some of the serious case reviews from the last few years, where asylum-seeking mothers have died from health issues. Those serious case reviews have found that the removal of support was one of the exacerbating factors, so we should be in no doubt that this will have very serious consequences.

[Keir Starmer]

Q 2 You have mentioned the adverse consequences and the number of families in the pilot, some years ago, who disappeared off the radar. How does this compare with supported returns—family support in the return programme—in terms of achieving the Government’s aim?

Mike Kaye: As I just mentioned, one of the aims is getting people to return home, and it is less effective once you remove support, because, as Home Office staff have said, when you do not know where someone is, it is that much more difficult to locate and remove them, so the absconding rate is double once you remove support. Even if asylum seekers wish to stay in contact, and there is no incentive for them to do so, it is very difficult once they become destitute, so this does not achieve the stated goal of trying to get people to return home at the end of the process.

[Keir Starmer]

Q 3 Thank you. You have mentioned children and the impact on them on a number of occasions. Will you give a bit more detail on what the impact might be on local authorities if support is withdrawn for children that come within their area? How does that work and what might the consequences be for the local authority?

Judith Dennis: The local authority has a duty to all children in its area who are in need, so it will be obliged under that legislation to assess the needs of families and of those children, and to provide services accordingly. Of course, in this country, we are very proud of the Children Act in England and Wales, and the Children Acts in Scotland. We are under no illusion that local authorities will want to fulfil those duties and will want the Government to support them financially for that, but we can see from other families who have no recourse to public funds that local authorities are bearing the responsibility of providing for the children. Of course, if you are going to provide for the children, it is both morally and financially sensible to provide for the whole family, so we think there will be a great impact on local authorities.

[Keir Starmer]

Q 4 Following up on that, you have mentioned finances. Are there circumstances in which you envisage that it will be necessary to remove a child from a family in order for support to be provided by the local authority?

Judith Dennis: That should only be done if there are concerns about the parenting, as with other families. It is not a principle of the Children Act that we remove children from their parents and carers if they are doing a perfectly fine job of looking after them. The Children Act was brought in with that principle in mind: that families should stay together, because they are the best people to bring up their own children, and that should happen regardless of the financial difficulties they are in. That is why we have the Children Act to provide that financial support where necessary.

[Keir Starmer]

Q 5 Hence the local authority, in those circumstances, would step in and provide the support that is being removed under the Bill.

Judith Dennis: Indeed.

Mike Kaye: It is instructive to look at the section 9 pilot again. Barnardo’s did a review with 33 local authorities and none of them thought that section 9, which is the equivalent of what we are looking at with this clause, was compatible with the Children Act. They all had concerns about the transfer of cost to local authorities, which would not be reimbursed; the fact that they would still have to do reviews of whether the child was in need and whether human rights were being breached; and that they were opening themselves up to litigation. All those concerns are equally valid for this Bill. The Government’s intention is that local authorities will not support, but I do not see how you can square the circle with the Children Act in that respect.

[Keir Starmer]

Q 6 Thank you. Finally from me, there are provisions in the Bill to prevent appeals against decisions on support. Can you give some evidence as to the quality of the decisions currently being made about the support available in such circumstances?

Mike Kaye: Yes. On the Home Office’s decision-making on asylum support, just to be clear: if someone thinks that there is an obstacle to them returning—for example, they are too sick to travel or they are trying to return but their Government will not issue them with documents—the Government should provide them with support. The same is true for the Bill. In practice, that is often very restrictively interpreted. For example, even when the Iranian embassy was closed, Iranian asylum seekers who were trying to return home and could not get documents were still refused support.

If you are refused support, you can go to the asylum support tribunal. Currently, with more than 60% of cases that go to the tribunal, either the case is overturned by the tribunal, so the asylum seekers are given support; or the decision is remitted back to the Home Office because the tribunal does not think it was right; or the Home Office withdraws the decision because the tribunal thinks it is flawed. If you are getting more than 60% of decisions wrong, how can you take away that means of appeal? You are actually leaving people destitute. That decision to leave a family destitute is far too important to remove the right to appeal, especially when the vast majority of those decisions are wrong in the first place.

[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.

--- Later in debate ---

[Keir Starmer]

Q 40 You described, in your evidence, the current regime as trivial in the sense of the likelihood of an intervention or a prosecution. You gave the figures of an intervention once every 250 years and a prosecution once every million years. We welcome, therefore, the director of labour market enforcement, because that provides an opportunity to bring a degree of oversight and strategic thinking. Obviously, reporting to the Home Office and to the Department for Business, Innovation and Skills is a welcome step in the right direction.

I know you have been tasked on resources a number of times. You clearly accepted that, the public finances being what they are, there may not be much by way of resources and suggested that increasing the sanction might do the same work. Is it not the reality that, with that level of intervention and prosecution, unless significant resources are put into the relevant agencies, the prospects of this raising beyond trivial to very much further up the scale are pretty limited? You can only do so much with the sentence, unless you are going to go way off the scale.

Professor Metcalf: Of course, I am exaggerating when I say once every 250 years for a visit. Of course, they will do it based on risk.

[Keir Starmer]

Q 41 It is targeted and intelligence-led.

Professor Metcalf: Yes. The director being the centrepiece of the intelligence hub will certainly help to ensure that the resources that are initially available to the three agencies will be used in a sensible and, I assume, most effective way. I am with you, Mr Starmer. I wish that more resources were devoted. I am not quite sure how much, but one of the roles of the new director will be to put pressure on the different arms of Government to provide more resources for this. I do not know at this stage how much more is needed to be able to increase the number of visits and inspections, albeit on the basis of risk.

[Keir Starmer]

Q 42 Ultimately, the pressure will have to be on the Government, because the agencies are likely to say, “We allocate our resources. We are happy to go along with the strategy but, ultimately, those are the resources we have. Therefore, we simply can’t up the number of inspections, and so on, in the way that might be strategically most advantageous.”

Professor Metcalf: Absolutely. The pressure will come via the director on to the different Ministries of Government and, ultimately, the Treasury.

[Keir Starmer]

Q 43 In headline terms, what do you see as the gaps? This is to co-ordinate a number of agencies, which is a good thing. What gaps are still being left?

Professor Metcalf: We need to consider where DWP, the local authorities and the Health and Safety Executive fit into the picture. They are the other main agencies and, for quite understandable reasons, they have not been included at this stage. We need to consider that.

As I have mentioned, given that we all know that we do not have the resources for enforcement, in the background we should be thinking about the penalties. If you think about the minimum wage, for example, although the penalties on the statute book are possibly large, employers are being fined only about £1,000 on average when HMRC takes them to court. These penalties do not seem to be sufficient to encourage firms that are behaving badly to obey the law.

--- Later in debate ---

[The Chair]

Q 49 We will now hear oral evidence from the Recruitment and Employment Confederation, the National Association of Licensing and Enforcement Officers, and Focus on Labour Exploitation. For this session, we only have until 11.25 am. I warn the witnesses not to be surprised if the Minister asks questions, because he is allowed to do that in this session. Will the witnesses please introduce themselves?

Kevin Green: I am Kevin Green, chief executive of the Recruitment and Employment Confederation.

Caroline Robinson: Caroline Robinson, director of policy at Focus on Labour Exploitation.

John Miley: John Miley, the national chair of the National Association of Licensing and Enforcement Officers and also licensing manager at Broxtowe Borough Council in Nottinghamshire.

[Keir Starmer]

Q 50 May I begin with the illegal working offences in the Bill, in particular the extension of an offence to employees as well as employers, and ask the panel how they think that will impact on the power relationship between an exploiting employer and exploited employees? Secondly, do the panel think it will have any impact on the confidence of employees to come forward? If criminal cases are to be brought, it is very important that those affected come forward and give an account, and possibly give evidence. Thirdly, do the panel think that there is any evidence that the employee offence is needed, given the other offences that are already in existence? Caroline Robinson, I think you particularly expressed some views on this.

Caroline Robinson: At FLEX, we think that the offence of illegal working is extremely dangerous, for three reasons. They relate to modern slavery, in particular, which is a key focus for our organisation and a major focus of this Government, who have set out to be a world leader in tackling modern slavery.

First, we think that people will be fearful of coming forward to be referred into the UK national referral mechanism as victims of trafficking. Only last week, we were working with a victim of trafficking who is currently in a situation of trafficking in the cleaning sector, but who has an undocumented status and is very fearful of coming into the national referral mechanism. The NRM provides 45 days’ support for victims of trafficking and a potential positive conclusive grounds decision that that person has been trafficked. If, however, they are unlucky and not found to be a victim of trafficking, for whatever reason—people are extremely fearful of that—now, under this offence, they might face 51 weeks in prison. That is the first reason.

The second reason is that we know that traffickers use the threat of deportation, removal and reporting to immigration officials in order to abuse and exploit workers. We are extremely worried about this offence, which you stated yourself is an addition to existing offences that people who have overstayed or entered the country undocumented would already face penalties for under the Immigration and Asylum Act. This offence, which serves a public relations function in terms of intensifying the hostility towards migrants, will be used by exploiters to intensify that hostility, to ensure that people remain in situations of exploitation and to threaten people with removal. We heard about a situation in the fishing industry recently in which a man was being abused and was living in extremely dangerous conditions. When he asked to have better conditions and living standards, the skipper called the Home Office, took him to port and reported him for removal. The conditions that people are living in and under which people are exploited are very much related to their immigration fears.

The third reason is something that was raised a lot on Second Reading, namely the criminalisation of trafficked persons. Although the Home Secretary set out the statutory defence, which is in the Modern Slavery Act 2015, it is quite narrow in its terms. The schedules exclude a number of offences for the victims of trafficking, such as aggravated criminal damage, but if I was to leave the building in which I was held I would no longer be covered by the statutory defence in the Modern Slavery Act.

We also know that people are in different types of situation in the UK. I was interviewing trafficked persons on Friday, and a woman I spoke to, who was in the national referral mechanism, was exploited when she first came to the UK. She then managed to escape that exploitative situation on her own, and entered into various undocumented working relationships. What would the situation be in relation to her? What would it be in relation to someone who was in an undocumented working relationship when they first entered the UK and was then exploited? How does this relate? We have a number of questions in relation to that and are deeply concerned. Given that, as you said, there are offences that relate to undocumented workers already, we think the measures are entirely unnecessary and very dangerous.

[The Chair]

Rebecca Harris wants to come in on that point.

--- Later in debate ---

[The Chair]

We will go back to Keir Starmer, but I would like to hear from the other two witnesses as well.

[Keir Starmer]

Q 54 Can I go to the flipside of enforcement and look at protection? The role of the director of labour market enforcement has been widely welcomed, and rightly so. Most discussion so far has been about enforcement. Do the witnesses have views on the protective role of the director and whether the remit is wide enough?

Kevin Green: We certainly welcome the role. We think it will add value in terms of the whole data gathering co-ordination across Government. In terms of its role in protecting vulnerable adults, that is dependent on the resource and the way that it actually functions in reality. For us, extending the remit of the GLA in terms of it being able to investigate exploitation is important. That is welcome. I know that that is part of the consultation. Again, going to the last point, you have to be very careful about any kind of regulation for the victims of these offences, because a lot of the stuff that we see is criminal activity. A lot of legitimate businesses and recruitment agencies are infiltrated. Often, it is dependent on an individual worker being quite brave—being a whistleblower and flagging this up so that authority can be brought in. We need to be very careful that we do not demonise the people who are in vulnerable positions.

We welcome the development. We think it will move things forward. The level of protection is much more about the level of resource available across the breadth of activity that it will cover.

Caroline Robinson: I share that view about protection being linked to resources. We advocated strongly during the Modern Slavery Bill’s progress through Parliament for expanded remit and resources for the Gangmasters Licensing Authority and for an overarching labour market focus on inspection and enforcement. We welcomed the Prime Minister’s announcement on 21 May, and the measures in the Immigration Bill go some way to address that.

The point about the protective purpose of the director is very important. For us, the core purpose of that role should be the protection of vulnerable workers and the prevention of exploitation. That has been at the centre of the work of the Gangmasters Licensing Authority and has been part of its success. That authority, as we know, operates on a limited budget, so the resources are also of critical importance. On the role of the director of labour market enforcement and the labour market enforcement strategy, what most concerns us is the power of the director to hold control of the budgets, governance of those labour inspectorates and shifting budgets according to the strategy.

We know that the Gangmasters Licensing Authority is extremely stretched in its current remit and has done a great deal to ensure a level playing field in those core sectors in which it operates. If it is to be shifted into other sectors, we believe that the good work it has done in the existing sectors is under grave threat. This overarching role is a good thing, but it requires extra resources if any changes are to be made, and it definitely needs to have, as the core purpose of that role, the protection of workers and the prevention of exploitation.

John Miley: The ability of the agency to get involved in enforcement workers’ licensing is welcome. It will cut corners—that is not the right phrase. It will remove barriers for them in respect of enforcement. Currently they have to await police action for the licensing authority to attend. To be able to be a responsible authority—to be a responsible body under the Licensing Act 2003—will certainly improve that status for them.

[Craig Whittaker]

Q 55 Caroline, I want to come back to you and the answer you gave to my colleague earlier. You said that you were not sure that illegal immigrants are aware of the rules and regulations around countries. Most people in the UK know that when you go abroad there is a huge perception in the wide world that Britain is a light touch.

I grew up in Australia and the children of a lot of my friends I grew up with have come to the UK and know full well that they can overstay their visas without too much hassle. We have 100,000 students who overstay their visa requirements. There are also the heritage cases we know about, and the traditional open-door policy. How can you say that you are not sure whether somebody coming to this country with the intention of being an illegal immigrant is not aware of the rules and regulations?

Caroline Robinson: I was talking about specific rules and regulations and whether the distinction between six months and 51 weeks would be transferred to someone in a village in Nigeria, for example. I am not sure that I agree about the light touch. Your case about Australia is interesting. I once arrived in India without a visa and the Indian officials allowed me to leave my passport at the airport and spend my time in India, and then to return and leave.

--- Later in debate ---

[The Chair]

Order. I am really sorry. I am afraid that that brings us to the end of the time allocated to ask questions. Again, I thank the excellent witnesses; we could have spent a lot longer on this.

[Keir Starmer]

On a point of order, Mr Bone. This afternoon we move to witnesses who deal with the landlord and renting provisions in the Bill. In an answer given orally last week, there was an assurance that the evaluation for the west midlands pilot of the scheme would be available before the Bill Committee. Since we are getting to that witness this afternoon, where is the evaluation? I would certainly benefit from reading it before I start my questioning at 3 o’clock.

[The Chair]

I thank the hon. and learned Member for the point of order. I will certainly make inquiries where necessary—unless the Minister wants to say anything.