Immigration Bill

Lord Howard of Rising Excerpts

Wednesday 20th January 2016 Lords Chamber

Moved by

[Lord Howard of Rising]

148A: Clause 13, page 9, line 28, at end insert—
“( ) The landlord does not commit an offence under subsection (1) if the landlord—
(a) has taken reasonable steps to verify the identity and immigration status of the person or people with whom the landlord has concluded the residential tenancy agreement; and(b) has no reasonable cause to believe that any other person who meets the first and second conditions is residing at the property.”

[Lord Howard of Rising (Con)]

My Lords, I will also speak to Amendments 150 and 150A. I declare an interest as the owner of properties which are let to long-term tenants.

I find it a bit rich that landlords should risk imprisonment for housing an illegal immigrant when it is the Government’s failure in their duty to protect the borders of this country that has resulted in the illegal immigrant being here in the first place. I fully understand the difficulties in controlling our borders, which will inevitably lead to errors, but should the person responsible for the error go to prison? If those responsible for allowing illegal immigration should not go to jail, why should a landlord? I am afraid that I do not share the optimism of the noble Lord, Lord Best, that the power will not be abused at some stage.

New Section 33A says that if any illegal immigrant resides in a property, it will be a criminal offence by the landlord regardless of whether or not that individual was the person to whom the premises were let. Amendment 148A seeks to restrict the criminal offence to those checks which would be reasonable for a landlord to carry out and which are set out in the Landlords’ Guide to Checking Immigration Documents, issued by the Home Office. I can understand that landlords should check the person taking the property, but can the Minister say how in practical terms it is possible for a landlord to check on each person residing in the property once it has been let? Is the landlord supposed to keep a permanent watch? What about the case where a house with a number of bedrooms has a drive and trees and is thus concealed from view?

Can the Minister suggest what reasonable steps could be taken to ensure that the person who has legally rented the premises is not allowing illegal immigrants to stay in the house? Any person renting a house legally who then wishes to house illegal immigrants is hardly likely to announce their intention when taking the property. It will be totally impractical for any landlord to monitor the ongoing use of the property and whether the person renting it has illegal immigrants to stay.

Proposed new Section 33A(7) states that a post-grant contravention is an offence. Essentially, this says that if a person becomes disqualified it is an offence for that person to continue to occupy the premises. How is the landlord expected to know if a person has become disqualified? Will the authorities notify the landlord?

Amendment 150A is to avoid Clause 13 from being retrospective. The draft right-to-rent code of practice issued by the Home Office clearly states at paragraph 3.2:

“The Scheme applies only to residential tenancy agreements first entered into on or after the date on which the Scheme is implemented in the area where the property is located.

A landlord is not required to take any action in relation to residential tenancy agreements entered into before that date, or which are renewed after that date if the renewed agreement will be between the same parties and there has been no break in the tenant’s right to occupy the premises”.

Amendment 150A would bring the Bill into line with the guidance being issued by the Home Office and avoid the unfairness of retrospective legislation.

The issue of discrimination has been mentioned this evening, and I come back to it only in relation to Amendment 148A. It is touched on in the draft right-to-rent code of practice, where it states:

“Whether or not a person … has permission to stay in the UK and has a right to rent is a matter of fact that can be verified. Only the listed documents should be used to reach a decision on whether the person has a right to rent”.

How does this apply to persons who might come to stay at the property unbeknown to the landlord? If my amendment is not included, to prevent a landlord being guilty of a criminal offence without being aware of it, the Bill will create the bias towards discrimination that has been talked about this evening.

The checking service is a method of confirming whether documents are correct—again, this has come up this evening. Can the Minister indicate the likely response time for the service and whether there will be charges for those using it, as the noble Lord, Lord Best, asked?

If it was simple for landlords to do what is being asked, why are the authorities not already monitoring illegal immigrants more effectively? It is not unreasonable for landlords to play their part in helping with the problem of illegal immigration, but what they are asked to do should be reasonable and proportionate. Landlords being subject to imprisonment for something over which, in practical terms, they can have little or no control is not reasonable. I point out that the people most affected by this will be that huge army of very small landlords who do not have agents to act for them, and who will be unable to follow what is happening to a property that they have rented out which may be in a completely different part of the country. I beg to move.

[Earl Cathcart]

My Lords, before I speak to my Amendment 150, supported by my noble friend Lord Howard, I would like to support his two amendments. The first is Amendment 148A. As drafted, the Bill has no defence for a landlord who has done their best to check the immigration status of a tenant, or for a landlord who is caught out by an unscrupulous tenant. They are merely reliant on the Home Office not prosecuting them in such circumstances. They will still have committed the offence, which will put them in breach of many mortgage companies’ conditions. I therefore support the amendment, as it will provide greater protection for landlords who are deemed to have committed a criminal offence even if they have done all that they can to confirm the status of the tenant.

My noble friend’s Amendment 150A is important because the Government have not yet been clear on whether the right-to-rent checks apply to existing tenancies. Checks part-way through or on renewal of a tenancy will leave landlords and agents with tenants who may then be deported; this will probably lead to a large number of random reports if tenants ignore correspondence or decline to provide documents. I support this amendment, as it provides clarity about when landlords will be expected to undertake the checks.

Amendment 150 in my name is supported by my noble friend Lord Howard and reads:

“A person does not commit an offence under subsection (1) or (7) where they are proceeding diligently to evict an adult who is disqualified as a result of their immigration status from occupying the property of which that person is a landlord”.

As we have already heard, Clauses 13 to 15 make it an offence for a landlord to fail to check the immigration status of tenants who are subsequently found to be in the country illegally. In such circumstances, landlords face being fined up to £3,000 or imprisoned for up to five years. This builds on the Immigration Act 2014, which requires landlords to check the immigration status of their tenants; the 2014 Act contained only the threat of civil penalties for landlords, and it is the Government’s plan for the checks to be rolled out across the country from February this year. That was debated at length under the previous grouping.

As the Bill is drafted, when a landlord is notified by the Secretary of State that a sitting tenant does not have the right to rent in the UK, that landlord is deemed to have committed a criminal offence even before the 28 days that the Bill allows a landlord to evict such tenants have ended. It could well be that this was the result of a landlord being caught out by forged documents that they could not possibly have been expected to detect. It could well be that those same forged documents enabled the illegal immigrant to get into the country in the first place, as my noble friend said, but I do not believe that the immigration officers who allowed the immigrant into the country are deemed to have committed a criminal offence or are fined £3,000 or imprisoned for up to five years—so why the landlord? As a landlord, I do not see how I can possibly spot a forged document if immigration officers cannot, with all their sophisticated equipment.

--- Later in debate ---

[Lord Bates]

The Home Office will investigate this and present cases to the Crown Prosecution Service for a decision about whether to prosecute, and resources will be targeted at the most serious offenders. The intention behind the measures, which is that they should be used only against those landlords who deliberately and consistently flout the law, has been stated unequivocally by Ministers during the passage of the Bill. However, I give an undertaking that I will be very happy to meet my noble friend, officials and other interested Peers to discuss whether there are gaps or particular remedies as regards guidance that could be brought forward.

[Lord Howard of Rising]

I very much welcome the chance to meet my noble friend to discuss this. I point out, with regard to the guidance—the Explanatory Notes—my noble friend keeps talking about landlords doing the checks, but it specifically says in the guidance to the Bill that it,

“applies where any adult is occupying the premises, regardless of whether the adult is a tenant under or is named in the agreement”.

We are not saying that there is a problem where people have been able to do checks, but that where somebody comes in, the guidance specifically says that those people have to be monitored—and I do not know how my noble friend expects landlords to monitor them. We are not a police force. That is a really important point. The other thing is that whatever anybody says—the noble Lord or my noble friend Lord Best—I cannot think of any legislation that is not abused sooner or later by somebody.

[Lord Bates]

We need to avoid creating an unintentional loophole that effectively says, “We’ll ask no questions and we won’t contravene the proposals in this legislation”. That cannot be right. I would imagine that most landlords would want to know who was occupying their property. In the event that a property is the subject of subletting agreement, at that point there would of course be a liability to carry out the background checks, which would fall to the people who have made the decision to sublet. However, making a general exemption in those circumstances could create an unwelcome loophole.

--- Later in debate ---

I appreciate that there are further discussions to be had, and we will listen carefully between now and Report to what is said about these important issues to ensure that genuine landlords are protected, and that the proposals are reasonable. I therefore ask the noble Lord to withdraw the amendment at this stage.

[Lord Howard of Rising]

I thank the noble Lord for his comments and for agreeing to a meeting; that is very gracious of him, and I look forward to that. Depending on it, I may wish to return to this subject, but in the mean time I beg leave to withdraw the amendment.

Amendment 148A withdrawn.