Immigration Bill (Ninth sitting)

Debate between Keir Starmer and Craig Whittaker

Tuesday 3rd November 2015 Public Bill Committees

[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.

Immigration Bill (Seventh sitting)

Debate between Keir Starmer and Craig Whittaker

Thursday 29th October 2015 Public Bill Committees

[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?

Immigration Bill (Fifth sitting)

Debate between Keir Starmer and Craig Whittaker

Tuesday 27th October 2015 Public Bill Committees

[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.

Immigration Bill (Third sitting)

Debate between Keir Starmer and Craig Whittaker

Thursday 22nd October 2015 Public Bill Committees

[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.

Immigration Bill (Fourth sitting)

Debate between Keir Starmer and Craig Whittaker

Thursday 22nd October 2015 Public Bill Committees

[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.

Immigration Bill (First sitting)

Debate between Keir Starmer and Craig Whittaker

Tuesday 20th October 2015 Public Bill Committees

[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.