Clause 12 - Offence of leasing premises

Immigration Bill – in a Public Bill Committee am 12:00 pm ar 29 Hydref 2015.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 12:00, 29 Hydref 2015

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.

Photo of Albert Owen Albert Owen Llafur, Ynys Môn

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.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

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—

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

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.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

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.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

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.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

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.

Photo of Simon Hoare Simon Hoare Ceidwadwyr, North Dorset

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?

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

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.

Photo of Simon Hoare Simon Hoare Ceidwadwyr, North Dorset

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.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

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.

Photo of Paul Blomfield Paul Blomfield Llafur, Sheffield Central

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?

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

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—

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I will give way again, although I do not seem to be able to get beyond about a sentence at the moment.

Photo of Simon Hoare Simon Hoare Ceidwadwyr, North Dorset

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.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

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.

Photo of Simon Hoare Simon Hoare Ceidwadwyr, North Dorset

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.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

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.

Photo of Paul Blomfield Paul Blomfield Llafur, Sheffield Central

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.”

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

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.]

Photo of Albert Owen Albert Owen Llafur, Ynys Môn

Order. There are too many conversations.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

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.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration) 12:15, 29 Hydref 2015

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.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

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.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

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.

Photo of Craig Whittaker Craig Whittaker Ceidwadwyr, Calder Valley

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.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

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.

Photo of Craig Whittaker Craig Whittaker Ceidwadwyr, Calder Valley

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.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

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?

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Civil Liberties)

I want to start by declaring an interest. I am not sure whether it is necessary, but I am a registered landlord in Scotland. I do not actually rent out any properties, but it is worth mentioning.

We are opposed to the right to rent scheme, as we have said on many occasions. It is unfair on landlords and on tenants, particularly those who do not look, sound or seem British. My hon. Friend the Member for Ochil and South Perthshire (Ms Ahmed-Sheikh) made the point that by virtue of her name she may have some landlords fearing that they cannot rent to her, which is utterly ridiculous.

I want to make several points. Most of them have already been covered, but they are worth reiterating. It is important for the Minister to accept that it is common, especially in areas with high numbers of young professionals or near universities and colleges, for a tenant to act in that agent capacity that we heard about. It is one example where the Bill could needlessly criminalise somebody who is not by any stretch of the imagination knowingly breaking the law. I hope he will look at that.

Amendment 85 is about ensuring that none of the criminal offences is committed in respect of tenancies entered into before the offences came into force. It is sensible to accept that one, because the person was not breaking the law at the time they entered into the tenancy. I hope that amendment 87—to use a term that I really cannot stand, but I cannot think of a more appropriate term—is a no-brainer and that the Minister will listen to the Residential Landlords Association, which is calling on everyone to support the amendment.

As currently drafted, the Bill would mean that, as soon as a landlord receives a notice from the Secretary of State that the tenant does not have the right to rent, they would automatically be committing a criminal offence. That is despite the Bill requiring landlords to give tenants 28 days’ notice to leave the property under the proposed eviction procedure. The Residential Landlords Association has asked us to support amendment 87 to prevent landlords being caught between the housing legislation and the Bill. It is a case of, “Which law will I break?” Which of those laws would the Minister suggest is the better to break?

My final point is to ask for clarification on something that had not occurred to me until now. It may well have been covered in the plethora of paperwork we have had but I have not seen it. Unity Homes and Positive Action in Housing are two Glasgow organisations. I am sure all Members here have organisations in their constituencies that do similar work. Among other things, they match up destitute asylum seekers with homeowners in a voluntary scheme. I would like to take the opportunity to pay  tribute to Positive Action in Housing, the Glasgow-based charity, which now has 2,100 homeowners in the UK and in France, willing to give up a room for somebody who has nowhere to live. They are doing that free of charge. The clarification I am looking for is this. If no money changes hands, are these people covered by the Bill?

I seek a second piece of clarification for when a token payment is made. If a room is given to someone, the heating will be on when it might not otherwise have been. There could be very generous people who just cannot afford to give the room for nothing and to pay the increased bills. If organisations and charities match up destitute people with homeowners and give them a token amount to cover their increased costs, will they be covered by this legislation or will they be exempt?

Photo of Paul Blomfield Paul Blomfield Llafur, Sheffield Central 12:30, 29 Hydref 2015

I want to take the opportunity to look at the wider concerns behind the group of amendments and the clause itself. I want to return to the Prime Minister, who always seems a useful reference point. I thought his speech at the Conservative party conference was moving and significant. He said:

“Picture this. You’ve graduated with a good degree. You send out your CV far and wide. But you get rejection after rejection. What’s wrong? It’s not the qualifications or the previous experience. It’s just two words at the top: first name, surname. Do you know that in our country today: even if they have exactly the same qualifications, people with white-sounding names are nearly twice as likely to get call backs for jobs than people with ethnic-sounding names? This is a true story.”

He went on to elaborate one example. I thought that was a telling description of how discrimination operates in the workplace, and a passionate appeal for us to take care not to create those conditions. We should be seeking to mitigate and prevent the occurrences he highlighted.

As in the workplace, so in the relationship between landlords and tenants.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

The hon. Gentleman is making an important point about discrimination more generally. That concern would be shared across the Committee, in seeking to confront and combat discrimination in all its forms. He and I share the same stance on that. To follow the logic of what he and his hon. and learned Friend have said, does he think that the right to work checks were a mistake by the previous Labour Government? Because that appears to be where his logic is taking him.

Photo of Paul Blomfield Paul Blomfield Llafur, Sheffield Central

That is an interesting intervention from the Minister. He, I and everybody on the Committee surely share the objectives of ensuring discrimination does not take place. We could have a useful and reflective discussion on the lessons we could learn from the previous Labour Government, but I guess the Chair might rule that a diversion. It is more important that we focus on the issue before us today.

Photo of Rebecca Harris Rebecca Harris Ceidwadwyr, Castle Point

I am sorry to intervene because I am a great admirer of the hon. Gentleman’s oratory. Does he agree that the obligatory checks for landlords may actually reduce any discrimination that already exists in society, in that landlords could already be discriminating against people? Actually, as the mystery shopper exercise showed, it may have led to more people of ethnic-minority origin getting the accommodation. That was also a point reflected by the housing officer Mr Gabriel in the evidence session.

Photo of Paul Blomfield Paul Blomfield Llafur, Sheffield Central

I am happy to take the hon. Lady’s intervention and I respect her views on these issues. We worked closely together in the previous Parliament on the Select Committee on Business, Innovation and Skills; it was a fruitful engagement. If we look at the totality of the Home Office evaluation, which I will move on to, it highlights more the risks than the benefits that she seeks to identify. If she will bear with me, perhaps we could come back to that later.

It was, I think, Mr Bone—sorry, Mr Owen. What a terrible mistake; I do apologise. It was quite telling in the witness stages of the Committee that Members were quick to discredit the Joint Council for the Welfare of Immigrants study, saying that the area that was subject to the evaluation was small and limited. I gave some credence to the criticisms of the sample and was, therefore, expecting, when the long-awaited evaluation by the Home Office was published, that we would see a study of substantial size and depth that would enable us to draw real conclusions.

It was, therefore, a real shock when we discovered how limited that survey was, in terms of both the number of landlords and the number of tenants. About 67 or 68 tenants were surveyed and, of those, 66% were white. So the sample group in which discrimination was likely consisted of 23 people. I am not sure that that gives us a depth of understanding of the way in which discrimination operates or the issues related to it, or is sufficient to enable us to agree to the Government’s proposals on the relationship between landlords and tenants.

As my hon. and learned Friend the shadow Minister has pointed out, this was a very short pilot, at what landlords and others have pointed out was a quiet time in the rental market. The area considered is very different from the one that I represent, certainly from the capital, and is much less competitive. It is a very different sort of rental market. One would have expected that an evaluation to provide information for legislation that would affect all parts of the country might have been drawn more widely.

As we pointed out earlier, even the Home Office itself acknowledged that the sample group was not typical of the rental market as a whole—of the wider tenant group. We are dealing with some fairly flawed evidence from the Home Office. Notwithstanding that, 15% of the tenants expressed concern, even within the Home Office’s own sample, that they would be treated unfairly under the right to rent scheme, and 9% expressed concern that they would be unable to secure accommodation because they did not have the correct documentation.

One landlord expressed the view that if applicants were white and had a Brummie accent, they would not need to put them through the process. We can already see from the Home Office’s own study of how things might work the sort of impacts that are possible.

Furthermore, some of the landlords in the focus groups made it clear that they would not rent to potential tenants with limited—as opposed to permanent—leave to remain in the UK. A focus group of letting agents produced evidence that some landlords had instructed their agents not to let to non-EEA nationals or to any what they described as “foreigners”—probably the sort of people with foreign-sounding names whom the Prime Minister referenced in his speech to the Conservative party conference.

We are beginning to see, from the Home Office’s own evaluation, albeit limited and flawed, a picture of exactly how discrimination would operate. We have every reason to be concerned about the trajectory of policy. I urge the Government to think carefully before they put into legislation something that will create the traps that the Prime Minister himself identified to his colleagues at the Conservative party conference.

Photo of Albert Owen Albert Owen Llafur, Ynys Môn

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.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

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.

Photo of Albert Owen Albert Owen Llafur, Ynys Môn

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.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

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.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

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.

Amendment 71 would protect a landlord from potential prosecution where they have taken action to evict a tenant who is an illegal immigrant within two months of receiving a Home Office notice. There is a technical issue with the amendment, however, as it provides for that defence only when a landlord has taken eviction action under the additional routes provided in proposed new sections 33D and 33E of the Immigration Act 2014, inserted into that Act by clause 13. The amendment would provide no defence where a landlord is able and chooses to pursue eviction under existing routes. For example, a landlord may be able to pursue a no-fault eviction under section 21 of the Housing Act 1988 or use other grounds available under section 8 of that Act. In such circumstances, the proposed defences would not be available.

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.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 12:45, 29 Hydref 2015

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.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

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.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

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”?

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

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.

Photo of Paul Blomfield Paul Blomfield Llafur, Sheffield Central

I want to be absolutely clear, because, as the Minister knows, I represent a constituency with a considerable number of students: more than any other Member in the country. I want to be clear on the position that co-tenants might be in, for example. In the ordinary run of things, if someone drops out of a house, the onus is on the co-tenants to find somebody to fill the vacancy. Does the Bill place any liability on co-tenants that might end up with them facing prosecution?

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

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.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I was not intending to intervene. I was just manoeuvring in an unusual way.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

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.)

Adjourned till this day at Two o’clock.