My Lords, in moving Amendment 50, I will speak also to the other amendments in my name and those of my noble friends Lord Rosser and Lord Stevenson and the noble Lord, Lord Best, and our clause stand part debate.
It is already the case that local authority housing associations cannot let to illegal migrants. We agree with the principle of making it more difficult for illegal migrants to rent property but we have very serious concerns about the workability, effectiveness and possible unintended consequences of this clause. We want legislation that works. We do not want legislation that is ineffective and puts unnecessary, onerous and disproportionate restrictions and obligations on UK citizens but does not impact on the real issue.
We have tabled a number of amendments. As I said, the first is a clause stand part debate on Clause 15 to ensure a general discussion on all these parts of the Bill. Amendments 50 and 51 would put in legislation the principle of a pilot for these provisions. Amendment 56C would require the Government to make landlords aware of the code of practice. Amendments 55T and 56A would implement the recommendations of the DPRC to require that the code of practice be made by order, and Amendment 56E would question the dehybridisation provision.
We have a number of other groups—I think it is three—on the housing issue. It might be helpful if I address the principal points in this debate and comment only briefly on the other groups. My noble friend Lord Stevenson has already addressed concerns about how these proposals will impact on students. I hope noble Lords will forgive me if I speak a little longer on this group of amendments, but I do not intend to speak on the other groups of amendments, other than perhaps a very brief sentence or comment. So I will speak slightly longer than I would normally.
I have found it difficult to find anybody who is in favour of this clause who thinks that it will work in practice. The evidence sessions in the other place should have given the Government cause to pause and reconsider, given the views expressed. Opposition to these measures comes from a whole range of organisations that have to deal with the consequences, from Crisis and Shelter, which deal with housing for some of the most vulnerable in society, to the organisations that represent landlords.
The Residential Landlords Association survey identified opposition from 82% of its members. Carolyn Uphill, chairman of the National Landlords Association, said in her evidence to the House of Commons committee:
“It is going to impose an administrative burden on landlords who are not experts in immigration … The principle of checking identity is not so much the worry as the logistics of how that is done and understanding the documentation”.
In the same evidence session, Richard Jones, policy director of the Residential Landlords Association, said that,
“we think that the Bill and its provisions are not workable and will not be effective in achieving the objectives set out”.—[ Official Report , Commons, Immigration Bill Committee, 29/10/13; col. 43.]
They are not questioning the principle, just whether the provisions are workable for those who have to implement them. I am still unclear whether the Government have fully assessed all the implications of this clause, including the unintended consequences.
“The proposed new housing measures in the Immigration Bill must not produce a bonanza for unscrupulous landlords who already operate outside the law”.
The landlords’ organisations are not complaining about the principle of letting only to those who are legally in the country but about the workability of the measure, whether it places unfair and unreasonable demands on landlords to enforce it and whether it will also cause significant problems and hardship to many others seeking to rent a home.
I understand the concerns that have been raised by landlords because in effect this clause outsources immigration responsibilities to others, including landlords. The Government’s code of practice for landlords—I am grateful to the Minister for supplying it so we could look at it—is supposed to provide safeguards and reassurances when it comes to implementation. I wish it had done so but I am not reassured. I have read through the guidance in the code of practice and it seems to raise as many questions as it seeks to address—the issues have already been raised. It states that landlords should make checks on,
“person(s) with whom you are entering into a contractual agreement … and any adult persons who will occupy the premises under that agreement”.
Can the Minister be precise about exactly who is included in this? The code states that,
“the tenant who is sub-letting will be the responsible landlord for the purposes of this scheme”.
But how will they be made aware of this? Will there not be a loophole for unscrupulous landlords who collect rent via one tenant, thereby evading their responsibilities should there be further sublets? What about the tenant who allows guests to stay, even long term? Will they or will the landlord be responsible? It is not difficult to imagine how those who are not here legally could stay with or even rent from friends without the landlord ever knowing.
The draft code of practice also lists a number of documents which are acceptable—if the Minister reads the list, he will find that there is a mistake in at least one. This includes a passport or a birth certificate, but also a letter from the police confirming that the person has had their documents stolen. Even a UK firearms licence would be acceptable proof to a landlord that a person can rent. A number of documents are listed, many of which will not be familiar to most landlords. How will landlords be able to familiarise themselves with, and understand and recognise, all those documents, including how genuine they are? I think that the Government are trying to be helpful in broadening the number of documents, but what they have done in effect is cause even greater potential for confusion.
One of the Government’s retorts to these concerns has been to say that under employment rules businesses already check a person’s status and do so without difficulty. It is misleading to suggest that businesses, even very small businesses, which are required to undertake employment checks operate on a scale that is comparable to private landlords, some of whom may let only one property—it might even be just a room in a property. Seventy-eight per cent of landlords in the private rented sector own just one property that they rent out.
As we know, employers can make mistakes when acting with the best of intentions. The noble Lord’s former ministerial colleague, Mark Harper, made such a mistake when he found that he was employing a domestic cleaner who was an illegal migrant. He has made it clear that he did his best to undertake the appropriate checks required. He thought that he had done so, but he had made mistakes. Mark Harper was very clear: he had checked his cleaner’s passport; he had checked the documentation—the letter from the Home Office; and he copied them at the time. But more than six years later, when he was taking this Bill through the other place and quite reasonably and responsibly wanted to double-check the information that he had been given, he could not find it, and his cleaner was unable to provide her copies. It was only then, after checking with immigration officials through his private office, that he found that the information that he had been given but could not find was incorrect.
How many landlords can be confident that if they make a similar mistake, they will be believed and not face the penalties and fine? The danger is that some landlords will understandably play safe and ask everyone for their passport, thereby disadvantaging all those without a passport or without immediate access to it. In Mark Harper’s case, the passport and the letter from the Home Office were fake or perhaps belonged to someone else. How many landlords are going to worry about making a mistake and, in some cases, not rent out their room or property at all?
I am also unclear about enforcement. How will it be established that a landlord has acted in breach of their duty and how will the fine be collected? What provisions will be made for landlords who repeatedly and deliberately break the law but pay the fine each time—those unscrupulous landlords whom we want to discourage while encouraging responsible ones? What will be considered sufficient checks, as referred to in the legislation? If we look at what excuses landlords are allowed to use to avoid action being taken against them, we see that they include notifying the Home Office of the contravention as soon as possible, but could this lead to landlords using notification as a shield and then the Home Office being overwhelmed by the number of inquiries that they might receive? Another excuse is based on the premise of landlords understanding the period for which the immigration document is valid or for how long a person has been granted leave, but that is not always straightforward and it can be very difficult to understand that documentation. Under Clause 27, the code of practice, which should set out all the detail about this, is to be laid before Parliament. We have seen the draft and, given that many questions remain, we and the Delegated Powers and Regulatory Reform Committee think that that is insufficient and that the code should benefit from parliamentary scrutiny. That is why we have tabled Amendment 55T to give effect to that.
Understandably and reasonably, those representing landlords are extremely concerned. I know that the noble Lord has tried to be helpful by providing information, but nothing that I have seen from the
Government gives them any comfort. It would be helpful if he could lay out for the benefit of your Lordships’ House what consideration the Government have given to the impact of the measures on UK citizens and others living legally in the UK, including the most vulnerable.
Given the difficulty of identifying documents and the potential liability for landlords, it is highly likely and not unreasonable that law-abiding landlords who want to stay within the law and, in the Government’s words, do the right thing, will stay on the safe side and ask for passports in every case as being likely to be the most accurate documentation. However, many citizens, probably about 17% overall, do not have a passport. That figure will be higher among low-income and vulnerable groups. A passport costs £72.50 and takes up to six weeks to process. That is beyond the reach of many on low incomes.
Landlords already avoid renting to groups that they perceive as high risk. Already, only 27% of landlords are willing to let to people on welfare or benefits. We know that homeless people often struggle to access local authority services because they do not have the appropriate ID to do so.
I shall set out two examples. I raised one case earlier with the Minister. He was not able to answer earlier; if he could now, that would be helpful. What about a 19 year-old thrown out of the family home, where there might be abusive parents? There is also the victim of domestic violence who leaves her home and flees the violence in a hurry, not worrying about packing her bags or making sure she has her passport and any legal documents. She just wants to get out of the way of danger. What happens to those people who cannot, when seeking to rent a property, show evidence that they are in the country legally or British citizens? What are they supposed to do? What about those with mental health problems? They may have a chaotic lifestyle; they cannot easily produce the evidence. I share the concern expressed by Shelter that the government exemptions do not include a number of particularly vulnerable groups, including post-16 children in the care of social services, post-18 care leavers who do not have status, the children of families without status and vulnerable adults requiring community care assistance.
The Minister may be able to satisfy me on that point; if he can provide clarification on those particularly vulnerable individuals, it would be very helpful. The worry is that there is a real danger that those people will either become homeless or be driven into the homes and rented property of unscrupulous landlords. Can the Minister give us more detail on what action the Government will be taking and how they will frame guidance or amendments to legislation to protect those who are vulnerable—those who are most at risk under the legislation? I made the point earlier about unintended consequences. The Government should be aware that there are British citizens and those with the right to live in this country who will be severely disadvantaged by the provisions. I am trying not to anticipate the Minister’s response too much, but I hope that he will not throw this issue back to landlords and expect them to deal with the problems. As I said, we all know how easy it is to make a mistake, and many landlords are doing everything they can to avoid that.
There is also widespread concern about the potential discriminatory nature of the proposals. Those concerns have been expressed by many organisations, including Shelter, Liberty and the churches—a brief I received from the Catholic Church outlines that point in particular. Racial discrimination in access to rental accommodation already exists. The comments made by the noble Lord, Lord Patel, earlier, were extremely concerning. We would not want to return to such measures. I am pleased to see that the Minister agrees with me; I was sure that he would.
The recent investigation carried out by the BBC showed that letting agents in London are prepared to discriminate against would-be tenants on the grounds of race. That was in a programme on BBC News on
The other part I do not understand is why the code is not subject to parliamentary scrutiny. I would have thought that the Minister would welcome the input from your Lordships’ House and that the code would benefit from scrutiny. At present, the proposals are that it will be laid before Parliament but we entirely agree with the recommendations of the Delegated Powers Committee and have tabled Amendment 56A to require the code to be made by order, subject to negative procedure, and to require the Government to bring it to the attention of landlords. Regarding our Amendment 56C about dehybridisation, can the Minister provide us with information as to why that process has been proposed by the Government and how the interests of those groups affected by the Bill can be addressed? There is some confusion and lack of clarity on that point.
I have spoken for longer than usual and I hope that the Minister understands why. I tend to be brief in my comments but I wanted to deal with all the issues on this group of amendments. The only reason that I have spoken for so long and asked these questions is that these proposals are quite muddled. They are ill thought through and my questions are a genuine attempt to understand how the Government think that they will work. I know that the Government have already sought to address some of the concerns by providing more information, such as the code of practice. However, the problem is that every time I have received an answer to questions that I have posed, it has just begged more questions about the fairness to others, including British citizens who have a right to live and work in this country, and the practical implications and workability of this policy.
Those concerns explain the reason for our amendment to test the provisions before implementation: that is, we want to have a pilot. The policy has to be tested before it can possibly be implemented. At the moment, there are too many questions and concerns. In responding to our previous proposals the Government said that they see no difference between a pilot and their proposals for a phased rollout. However, there is a big difference. A phased rollout means that the Government can introduce phase 1 and proceed to phase 2, then go on to phase 3 without ever stopping to assess the policy in between phases. The Minister is shaking his head but that is what the legislation allows for. I am trying to get some clarity. If he is willing to have an assessment as it moves along, a pilot is the best way of doing so. By contrast, our pilot would provide for the opportunity to judge the effectiveness of the policy as it is gradually implemented and to respond to any problems and make changes by assessing whether it is workable in practice.
The Minister in the Commons said that the Bill,
“contains provisions to ensure that the scheme can be scrutinised to see how it … worked”.
He went on to say:
“Any commencement order that introduces the landlord provisions into a subsequent area, following the initial pilot, will be subject to the negative resolution procedure”.—[Official Report, Commons, Immigration Bill Committee, 7/11/13; col. 242.]
That is not enough. It needs far greater consideration and scrutiny. On Second Reading I said that we would have a national pilot, by which I meant pilots in different parts of the UK. Having looked at this again, what we are proposing today is not that but having just one pilot in one geographical area of the country. We are confident that we could get the right result and understand the impact of the policy from that one pilot.
I have spent quite a bit of time on the pitfalls and concerns around this clause. However, the issues that I have raised are not exclusive and there are many others. We will hear more about some of them but I want to emphasise the need for a pilot in this area. I have already made it clear that we support the principle of stopping illegal migrants from accessing properties but the real answer has to be to address the wider problem, not try to make landlords into immigration agents. Our concern is that this clause will not achieve its aims and it seems reasonable and sensible to ensure that it works before we go ahead. I appreciate the number of questions which I have put to the Minister but I hope that he can answer them and address the points that I have raised.
My Lords, there are a number of amendments in my name to this part of the Bill but I begin by supporting Amendments 50 and 51, introduced so well by the noble Baroness, Lady Smith of Basildon. All the amendments that I support relate to the proposals in the Bill for landlords to have responsibility for checking the immigration status of their tenants. I declare my interests in social housing and the private rented sector, as in the register. I have every sympathy with the proposition that the relevant clauses should not stand part of the Bill but I recognise that there are other factors here that mean that the Government will not be persuaded to drop this measure altogether. In the amendments in my name I am therefore concentrating on ways in which its impact can be moderated.
Moreover, I have had the benefit of a very useful meeting with the Ministers—the noble Lord, Lord Taylor of Holbeach, the noble Earl, Lord Attlee, and the Minister for Immigration in the other place, James Brokenshire—at which I and colleagues representing both tenants and landlords were able to clarify a number of points. Indeed, my colleagues from the Residential Landlords Association, Crisis, the National Housing Federation, the British Property Federation and the Joseph Rowntree Foundation commended Ministers and civil servants on a number of concessions and clarifications that have allayed some of their fears. Nevertheless, it remains the case that, as I set out at Second Reading and as the noble Baroness, Lady Smith, has emphasised, this new burden on landlords is likely to have a number of unfortunate consequences.
I am sorry to interrupt the noble Lord in full flow; I was waiting for a point at which I could come in. I just want to clarify whether he is speaking to amendments in this group; I do not think that it contains any in his name.
I shall come to them in due course.
The average private landlord will be keen to avoid committing the new offence of allocating a tenancy to someone who is not meant to be in this country, and to avoid being fined up to £3,000. They will want to play safe and not take anyone as a tenant who might just possibly turn out to be an illegal immigrant.
It will not be an offence not to check the status of a potential tenant; it will be an offence not to have checked only if it is subsequently discovered that the tenant is here illegally. So if someone is obviously not an immigrant, there is no need to go through the process of checking them out. How much easier, therefore, to turn away anyone with the appearance of being foreign, including perfectly legitimate applicants, using any number of excuses—most often that the property has already been let. Despite the guidance being prepared by the Home Office on how landlords can avoid acting in a discriminatory way, in those markets of high demand—London, much of southern England and hotspots everywhere—I fear that the Bill could mean that anyone who could remotely be thought to be a migrant will find it very tough to get decent rented accommodation. Frankly, it is difficult enough already for anyone who is not a young UK professional to persuade landlords to take them on. Remember that there are over 1.5 million private landlords, 78% of whom, as the noble Baroness, Lady Smith, said, own just one property; they are amateurs and they are going to be highly risk-averse.
In the less pressurised areas, landlords might be more willing to check out the status of applicants, but few will be prepared to wait while queries are dealt with by the Home Office where, I suspect, there may be insufficient staff and delays could follow. If there is any doubt, the vast majority of landlords will always choose, I suggest, another prospective tenant. As for the bad landlords, and there are some, they will take no more notice of this new requirement than of the existing obligations they already ignore. These landlords will see demand rise for their low-quality accommodation at inflated rents because perfectly respectable would-be tenants who are entirely legal migrants or, indeed, not migrants at all, but who might be thought to be so, will find the better accommodation is not available to them. I fear it is often overseas students who have every right to be here who may suffer the worst.
If the landlord uses a lettings agent, and the agent is willing to take on the legal responsibility of checking the migration status of potential tenants, the agent is likely to charge at least £50 per applicant. While in Scotland it is illegal to pass on this charge to the tenant, in England and Wales agents could impose it on the tenants, another burden on tenants who are likely to be already worrying about the affordability of their accommodation.
Neither tenants nor landlords are pleased with this requirement in the Bill, but we are where we are, and the amendments I am supporting and proposing are intended to moderate and mitigate the effects of this measure. In supporting Amendments 50 and 51, which call for pilot schemes to assess just how workable the arrangements may be, I add to the words of the noble Baroness, Lady Smith, that evaluation of the impact in pilot areas needs to establish not just whether any illegal migrants have been identified by landlords but whether the new measure has distorted the selection of new tenants. Certainly we need to know from the pilots how much the new measure has cost in hard cash and in time and effort for tenants, landlords and local authorities and to what effect. I support these amendments.
My Lords, I rise to speak to Amendment 56, which is tabled in the name of the noble and learned Lord, Lord Mackay of Drumadoon, who regrets that he cannot be in place. I have put my name to the amendment. I should make it clear that the matter with which it deals was drawn to our attention by the Law Society of Scotland. Just to set the background, it raises a short point in relation to Clause 28, the discrimination clause, to which the noble Baroness, Lady Smith, referred. That clause requires the Secretary of State to issue a code of practice with a view to ensuring that landlords or agents do not breach the provisions of the Equality Act 2010 so far as it is related to race when performing the obligations imposed on them by Chapter 1 of Part 3.
Clause 28(3) provides that:
This amendment adds the Scottish Human Rights Commission to that list.
The reasoning behind the proposal can be put very shortly. It is that while Chapter 1, with which the code will be concerned, can be said to fall under the broad heading of immigration, which is a reserved matter for the Home Office, it also involves the devolved area of tenancies in relation to both social housing and private lettings between landlord and tenant. This is a sensitive area where the Article 8 right to family life and to respect for the person’s home is involved. It could also be argued that there is an Article 1, Protocol 1, right with regard to the landlord since he is having to take decisions about his own property.
The reference in Clause 28(3)(c) to,
“such persons representing the interests of landlords and tenants as the Secretary of State considers appropriate”, suggests that there is room for adding something to the two particular bodies which are mentioned in the list set out in the clause. But it is suggested that, in order to complete the protection for the tenant’s rights under a devolved system, the inclusion of the Scottish Human Rights Commission would be appropriate. In a sense, it is a precautionary proposal because one has to be careful with regard both to the devolved system and to the risk of entrenching on the human rights of either party, which could give rise to very unfortunate consequences. The safer course, I respectfully suggest, is to include the Scottish Human Rights Commission so that it can offer its advice on the drafting of the code.
My Lords, I am sorry that prior engagements meant that I missed part of the Second Reading debate and could not speak then on this important Bill, which I support. I start by thanking my noble friend the Minister for the briefing he kindly provided on the residential tenancy provisions. I thank noble Lords opposite for initiating a debate on Clause 15, as it gives me the opportunity to probe the Government’s intentions and the “workability” of the provisions, to quote the noble Baroness.
I come at the subject as a business person, although I should declare an interest as the part-owner of a son’s flat which is currently let while he works out of London. We are asking the landlord community, nearly 2 million of us, to be part of the enforcement service for immigration. This is a new burden, as the noble Lord, Lord Best, has said. I understand that, for 62% of landlords, the required documentation is already available to satisfy the provisions. But that leaves a lot of people burdened for the first time, and required to keep copies and records that they do not have to worry about at present. I suspect that many will not know about the new rules and that they risk a civil penalty—£1,000 for the first offence, £3,000 thereafter— if they let to somebody whose papers are not in order.
I have a fear that the immigration authorities, in order to hit targets, could turn their attention to the easy task of cracking down on landlords who make a mistake, rather than the labyrinthine task of fighting illegal immigrants through the courts. Can my noble friend give landlords, especially small landlords who do not use expensive letting agencies, some comfort on these issues?
This is an important Bill, as I have said, and it is clearly essential that the new provisions are communicated really well. I have two thoughts on this and would be glad to hear the Minister’s reactions before we accept the provisions on landlords in Clause 15 and subsequent clauses. One is to use the web properly. We should place on gov.uk, in one user-friendly place, all the new rules for landlords, wherever they are set out, including the new online checking resource that is planned; briefing on the new biometric residence permits, which will ease landlords’ task of identification; the contact details for the phone inquiry line; and the 48-hour e-mail immigration checking service, which I agree will need to be adequately staffed, as the noble Lord, Lord Best, has said.
A different version could also be provided for tenants, including, perhaps—having listened to earlier debates—students, from whom I believe the paperwork requirements may be relatively light. It would be good for all of those people to know what the rules are and be able to check them in a simple place on the web. With modern techniques, prospective tenants could easily translate this briefing using an online app, obviating the need for expensive advice and lawyers.
Secondly, we should ask the landlords’ associations to prepare model clauses on the new immigration controls to be added to their standard shorthold lease. This would make it less likely that the new requirements were overlooked and the tenant would have to make an undertaking, which would be helpful, for example, in avoiding illegal sub-letting.
Finally, I would like to understand the Government’s intentions on timing, a point which links to Amendment 51 on a possible pilot. I believe that the Government plan to trial the new arrangements in a specific area or areas, which is an excellent idea that I would like to see applied to more areas of regulation. However, what would the timetable look like, and will the Government, as suggested by the noble Lords opposite, feel able to feed back to this House what they have learnt before the new system goes nationwide?
As a supporter of the Bill I am very keen that it should work well and not lead to an adverse reaction by small landlords or a reduction in available accommodation because people do not want to risk a fine or the hassle involved in the new scheme. The money-laundering laws were no doubt good in intent, but the repetitive bureaucracy they have introduced into every aspect of asset purchase certainly comes at a cost which affects UK productivity. I am keen to know whether we have learnt from this experience in establishing this important new regime for landlords.
My Lords, we have a number of amendments in this group: Amendments 56B, 56D, 56G, 87A and 89. As other noble Lords have said, there must be a pilot. I was glad to hear the noble Baroness, Lady Smith, say that she has come to the view that it should be a single pilot. However, like her, I agree that there is a world of difference between a pilot and phasing the rollout. I have a number of probing amendments in this group and some in later groups. I will deal with particular concerns amendment by amendment rather than speaking generally to the clause stand part.
On the pilot issue, in my mind this is not probing but something that has to happen, and in a single area. We are not talking about different housing markets; all noble Lords who spoke about this are concerned about what I wrote down as “bureaucracy”, although “administrative burden” is the politer way of putting it, is it not? Concerns were also expressed about discrimination and how landlords, tenants, agents, occupants—people who are not tenants in the sense in which we normally technically use that term, but who are actually tenants under the Bill as they are defined—would cope. We are also concerned about tenants and occupants who have a right to be in this country and to rent. “Workability” was the term used, which is very much in my mind. I will not take up the Committee’s time by quoting from evidence to the Public Bill Committee in the Commons, but I, like others, was struck by the sheer number of small landlords there are in this country.
We talked about a pilot, and that pilot needs to be assessed. Of course the public response to a pilot will be the overall assessment, but it occurred to me that we need a more rigorous critique, being clear and careful about the factors to be assessed and evaluated. Our Amendment 56G would require a report before the provisions come into force about the matters which should be assessed and the basis for evaluating their assessment. I have not attempted to spell those out at this point; that is a piece of work that needs to be quite careful and detailed, to be subject to discussion and to be discussed. I have said that a report should be laid before Parliament by your Lordships. I also agree that the code, which must seek to ensure against discrimination, should have parliamentary involvement.
On Amendment 56B, the dangers of discrimination are inherent—that is an issue in itself—also because of the implications for those who are entitled to be in the country and to rent, as well as for everybody else.
Your Lordships will understand that with a name like Hamwee and coming from the background that I do, I knew people whose names were not familiar to landlords when people of my generation were seeking to rent. Unlike the experience of the noble Lord, Lord Patel, when they turned up on the doorstep they were greeted with, “Oh gosh, you’re white!” That is just as bad a discrimination, of course.
I think that there should be a review following the pilot—that may be implicit in Clause 28, but I think that we should say so—and parliamentary process for each revision. Our Amendments 56B, 87A and 89 are not just little wrinkles at the end of the Bill but amount to a substantive amendment to require clear stages to the process. I can also see that we should consider a mechanism for Parliament requiring a view if that is not a review forthcoming from the Home Office, although I thought of that only yesterday.
The response of the Delegated Powers and Regulatory Reform Committee has already been mentioned. It considered that the consultation proposed by the Bill would be insufficient for one specific reason, among others—that a breach of the code may be taken into account by the court or tribunal.
The question of bringing the code to the attention of landlords and agents has also been mentioned. Our amendment is very similar to Labour’s Amendment 56C, but I think it is slightly more demanding; I suspect that we put them down at the same time. I am less sanguine than the noble Baroness, Lady Neville-Rolfe, about the dissemination and communication of this measure, and I want by this amendment to probe how the Government think that people can be made aware of it, as well as compliance being ensured. If you are faced with a fine of £3,000 for getting it wrong, that is quite an incentive not to accept as a tenant someone who, you might find, has made you get it wrong. The stereotypes and prejudices are really very obvious; it is perfectly clear that, in this company and this Committee, I do not need to labour the point, but if there is to be an incentive not to let there must be an incentive not to discriminate.
My Lords, I support the amendments in the name of my noble friend Lady Smith of Basildon and with regard to clause stand part. I made clear my opposition to this part of the Bill at Second Reading on the grounds of its impact both on migrants and on black and minority ethnic citizens. I raised the concerns in the report of the Joint Committee on Human Rights, and we returned to the issue in our second legislative scrutiny report in which we welcomed,
“the Government’s indication that the Secretary of State, when exercising her residual discretion to grant permission to occupy premises under a residential tenancy agreement, will take into account the best interests of any child involved, in accordance with the duty in s. 55”.
By acknowledging the relevance of Section 55 in this context, this goes beyond the general indication already given by the Government, welcomed in our first report, that,
“nothing in the Bill is intended to change or derogate in any way from the children duty in s. 55”.
The committee said:
“However, we remain concerned about whether it will be sufficiently clear to front-line decision-makers that the s. 55 duty applies to significant functions such as the Secretary of State’s discretion to grant permission to occupy residential premises. Under s. 55(3) of the 2009 Act, a person exercising any of the Secretary of State’s functions in relation to immigration, nationality and asylum must, in exercising the function, have regard to any guidance given by the Secretary of State. We recommend that the Secretary of State issue new guidance specifically on the s. 55 duty, explaining clearly to front-line decision-makers exactly how that statutory duty applies in relation to functions conferred by or by virtue of this Bill”.
I invite the Minister to give that assurance.
With regard to piloting, the subject of Amendments 50 and 51, at Second Reading I asked what steps would be taken to monitor the impact from the equalities and human rights perspective. The Minister kindly referred to this question in his written response on Second Reading issues, so I eagerly looked for an answer first in the commentary and then in the factsheet to which we were referred for answers, but answer came there none. Therefore, I would be grateful for an answer this evening on the record.
I welcome the fact that the draft code of practice was published with the factsheet, but given the 36 pages of the code of practice plus 16 pages of the anti-discrimination code, I could not help but wonder how many landlords are going to read, learn and inwardly digest all the contents of those codes? I fear that, even without any discriminatory intention, landlords—this point has already been made by, for example, the noble Lord, Lord Best—will simply avoid letting to anyone who looks or sounds like a foreigner. This is in the context of a housing market where we know that, particularly in London, landlords are getting increasingly selective about whom they will rent to. For example, housing benefit claimants are finding it increasingly difficult to get private lettings. As has already been said, the danger is that people are then pushed into having to rent from rogue landlords. The Migrants’ Rights Network raises particular concerns about women who may have insecure immigration status and how this provision could make them very vulnerable to physical or sexual exploitation.
At Second Reading the noble Lord, Lord Cormack, asked about a possible exemption for small landlords. The written response given afterwards was that the Government did not consider this to be appropriate. I realised only the other day that lodgers are included in this provision. This will mean that people subjected to the bedroom tax who are taking in lodgers because they want to stay in their home and they cannot afford to pay their rent because their benefit is being cut will be treated as landlords. These people never wanted to be landlords; they have been pushed into it. The noble Lord, Lord Best, talked about amateurs. These really are amateurs. Are we really saying that someone who has been subjected to the bedroom tax could be fined up to £3,000 if they get this wrong? It is appalling. I hope that at the very least the Government will think again about lodgers. Like my noble friend, I would prefer it if we could remove this nasty clause from the Bill altogether but, if not, at the very least we need firm assurances that there will be a genuine pilot from which lessons will be learnt and which will monitor the equalities and human rights impact.
My Lords, I, too, wish to put on record my concerns about the proposed use of landlords as unpaid immigration officials. My preferred option, too, would be for the Government to drop Clause 15 altogether, although I do not expect the Minister to be thrilled at that idea. Therefore, as a second option, I would very much support a single pilot, which is evaluated and has an evaluation report put before Parliament before—this is very important—any attempt is made to roll out these provisions beyond that single pilot. That is, as others have said, totally different from what the Government are currently proposing.
I, too, do not believe that the system will work and it is therefore better to find that out before it happens all over the country. As other noble Lords have said, landlords will find ways to avoid entering into a tenancy agreement with anyone who may not have a legitimate right to remain and anyone who may bring into the household others who may not have a right to remain. As the noble Baroness, Lady Lister, has said, this could involve a considerable number of people.
Landlords do not keep a close eye on who is staying in each of their properties from week to week and month to month. The tenant may indeed have a visa, a job and all the necessary papers in order to remain in Britain, but if he brings over relatives to live with him, it must be for the immigration authorities to ensure that those relatives return home or obtain the right to remain. It cannot be right that the landlord can be penalised to the tune of initially £1,000, and then £3,000, for not being aware of this. Is he supposed to undertake an inspection of each of his properties each week or month? What kind of police state are this Government thinking of introducing?
An additional concern is that landlords are generally very anxious to remain on good terms with their tenants, and for good reasons. If tenants are threatened with a report from the Home Office or the results of such a report, they could well leave the property trashed, at considerable cost to the landlord and considerable inconvenience.
The Minister’s briefing says that if a tenant has no documents then they must, in order to rent a property, produce a police letter confirming that this has been reported. Does the Minister believe that this is realistic? What will be the cost to a landlord of undertaking or paying an agent to undertake the necessary checks, getting all these documents and police papers? I should be very interested to hear the Minister’s response.
The Minister’s briefing dismisses the exemption of students from the landlord provisions on the grounds that it would be complicated for landlords to keep records on only some of their tenants. I do not know. In my experience, most students live together in student accommodation of one sort or another, such as a student house. I hope the Minister will reconsider that point.
Then there is the experience of the former Minister Mark Harper, which has been referred to. The implications of landlords’ fears of inadvertently falling foul of the law and being penalised for an understandable error are considerable and will have huge implications for many communities. As Liberty argues:
“The net impact of the policy may well be to push those with irregular status further under the radar, increasing vulnerability and exploitation by creating another black market in private rented property”.
As the Home Affairs Committee put it, these new housing measures must not drive,
“more people into the twilight world of beds-in-sheds and overcrowded houses in multiple occupation”.
Does the Minister agree with those concerns—and if not, why not?
If the Government insist upon going ahead with these provisions, does the Minister accept that the requirements of the landlord must be minimal and very straightforward. The Minister’s briefing note says:
“Where a variety of documents are presented as evidence, it will be good practice to check that the names, photographs and dates of birth are consistent throughout”.
In fact, the wording behind that paragraph makes it clear not that that would be a good idea but that the landlord must do so. Can the Minister confirm that the landlord should not be penalised if his agent simply confirms that records have checked and are there, but that subsequently inconsistencies are found? Surely the landlord cannot be found responsible. If landlords are penalised for this sort of thing, landlords simply will not let a property to anyone whose documents are not or might not be straightforward. Landlords simply do not want to become immigration officers. Why should they? They have not gone into that profession in the first place.
Also, do the Government have any evidence at all that these measures would work? Finally, what will be the effect on ethnic minorities in general living in this country? Does the Minister have any concerns about the wider societal implications of these provisions?
My Lords, I support Amendments 50 and 51 standing in the name of my noble friend Lady Smith. I deeply dislike the provisions which would require landlords to subject all prospective tenants, including UK-born citizens, to immigration checks. I join other noble Lords in suggesting that they are likely to be unworkable and discriminatory, and I suspect that a careful pilot would find that out.
Failing that approach, I also support Amendments 52, 52A and 53 in the name of the noble Baroness, Lady Hamwee, which come up in a later grouping. They seek to ensure that applicants for tier 4 visas who hold certificates of acceptance of studies, known as CAS, from recognised bodies will be exempt from landlord checks. I want to refer to them here because they reinforce my belief that a pilot is essential. They reflect the fact that, although the Government have tried to exempt halls of residence, it is difficult to define in law the variety of types of accommodation which international students may rent where the university has a role in putting them forward or securing the tenancy. Instead, the amendments exclude a whole class of prospective tenants from further immigration checks. That seems sensible because tier 4 applicants with certificates of acceptance of studies have already been through extensive checks. However, the amendments are important because, as I understand it, the Bill as currently drafted would make it impossible for a student to secure accommodation in advance of arriving in the UK. Can the Minister please confirm whether that is the case?
For a student with a young family or someone living away from home in a strange country for the first time, the ability to secure accommodation before arrival is hugely important. As I understand it, the amendment would mean that a student who had received a CAS would be able to present this, perhaps by e-mail, before coming to the UK and could be sure that the landlord would not have to carry out further checks once they arrived. That would be a very positive step.
I accept that the fact that this is limited to students would leave other groups vulnerable but the amendment highlights the difficulty that the largest group of visa applicants will face, and it will, I hope, strengthen the case for thorough piloting and a review of the residential tenancy provisions. I believe that unless this aspect of the Bill is substantially amended, it will lead to widespread discrimination. I hope that the Government will think again, and for this reason my preferred solution would be either to remove the clauses entirely or to subject these new requirements to a careful pilot, as suggested by my noble friend Lady Smith.
My Lords, I, too, support Amendments 50 and 51 in the name of my noble friend Lady Smith of Basildon. In doing so, I want to reinforce many of the points that have already been made. It is important that is done and that the Government fully appreciate the amount of opposition to many of the proposals in the Bill, particularly in this section of the Bill. If I were being brutally honest, I would say that I believe that the whole of Chapter 1 of this part of the Bill ought to be deleted—that is, Clauses 15 to 32—because it is ill conceived and ill advised as an attempt to shift immigration control from the legal authorities rather dramatically and pretty fundamentally to the private sector. I believe that that is a societal shift because, as far as I am aware, never before has it been a legal requirement in Britain for private sector providers to demand that people prove their identity and legal status away from the border.
The effect on landlords of the burden of the bureaucracy associated with the proposals in the Bill was eloquently set out by my noble friend Lady Smith and others—and that is if landlords are even fully aware of the proposals. As has been said, they could face a civil penalty of, initially, £1,000. Landlords may well know of the need to vet potential tenants—that is fairly clear—but how will they understand what they are supposed to do about others who happen to move into the property after the tenancy has been granted? As the noble Baroness, Lady Meacher, has just said, how often are landlords supposed to check this? How many extra staff are they supposed to take on for those checks to be carried out effectively and to demonstrate that they have been carried out to the best of their ability? It is impossible to know realistically who is living in a property at any time unless it is inspected daily. It is most unfair that landlords should be expected to police those requirements.
As so many have said, this part of the Bill is simply not practical. I do not want to repeat what others have said, but I also have grave concerns about the effect on UK citizens who happen to have a name, skin colour or accent that is not quite what some British people would regard as the norm. In any case, a landlord may be able to say, “I don’t know whether this person is a UK citizen or not, but frankly from my point of view as a landlord it is simply not worth taking the risk, so I’ll take the safe option”. That is racial profiling, which is a nefarious practice in any circumstances, but it does not take a huge leap of imagination to imagine that that would be the preferable option for some landlords even if they were deeply uncomfortable with it. They may regard it as preferable to falling foul of the law and then being fined accordingly. That is a dreadful situation in which to place anybody.
The private rented sector in this country is not good enough in many respects already, and this Bill will simply make things worse. It will have the effect of restricting entry to that sector to a significant number of people who have no alternative. That could impact in turn on homelessness, which is already a problem and could become worse through the requirements of the Bill. There is also the question of costs. It is quite unrealistic from what I understand from previous government comments that it is anticipated that landlords will pass the costs on to tenants. Apart from the fact that many tenants will not be able to afford that, and may ultimately make some properties unaffordable to tenants, why should the tenants have to pay the costs? It is not their responsibility. I would suggest that it is not even the landlord’s responsibility, or it should not be. In effect, landlords are being press-ganged into doing the job of the legal authorities. If that is what the Government want to do, at the very least they should be prepared to bear the costs themselves, and not allow landlords to pass costs on to tenants or take on additional staff, which in itself is a significant cost.
Finally, I want to reinforce the point on the question of pilots. It is self-evident that a change as fundamental as this has to be the subject of a pilot—and a properly evaluated pilot at that—before it is taken forward if that is what must happen. As I said, ideally to my mind the whole proposal should be scrapped. That is clearly not going to happen, so I hope that a pilot in one area, as outlined by the noble Baroness, Lady Smith, will be taken forward and that lessons learnt from that can then be used to ensure that some of the major problems stemming from the legislation can at least be eased.
My Lords, the Minister will be aware that residential landlords very often, particularly in Greater London, go to some length to seek out companies and embassies as tenants for their properties. That in itself constitutes discrimination against the ordinary individual or family. I agreed with virtually every word that the noble Baroness, Lady Lister, said, particularly when she referred to the unintended consequences that are likely to affect black and coloured citizens of this country as a knock-on effect of what is intended to deal only with migrants. This category will include citizen students who come from British ethnic minorities. The noble Baroness was quite right to go on to mention lodgers. I would much prefer that Clause 15 did not stand part. If it has to be in the Bill at least there should be a carefully designed and carefully evaluated pilot project.
My Lords, perhaps I may start by talking about the pilot. A number of noble Lords have expressed interest in a pilot and I can see its significance.
The Government have made public commitments in relation to the implementation of these provisions and have reiterated those commitments in correspondence with the Joint Committee on Human Rights. The Government’s intention is that the provisions relating to landlords and their agents will be subject to a phased implementation on a geographical basis. This will allow a proper evaluation of the scheme to ensure that it delivers its objectives without unintended consequences such as discrimination. Noble Lords are quite right to emphasise their concerns and I recognise that it is up to me to reassure noble Lords on that point. Through the courtesy of the noble Lord, Lord Best, I heard from Crisis directly when we had meetings with parties interested in this provision.
Discrimination is one factor and increased difficulties in the vulnerable accessing accommodation is another. We intend to work with bodies such as crisis in conducting the evaluation. It will not be an evaluation in which the Government examine their proposals on their own in isolation. The first phase and evaluation will also enable the Government to develop and deliver suitable support services for landlords and tenants, a point made by a number of noble Lords.
The Government have agreed that we will initiate the first phase from October 2014; that a formal evaluation will be produced; and that decisions on implementing the scheme more generally will be taken in the next Parliament on the basis of this proper evaluation. Implementation beyond the initial phase will be via a negative resolution order, enabling a debate to be triggered in both Houses of Parliament at that stage if there remain concerns following the initial phase.
These carefully constructed commencement provisions are already provided for in Clause 67. The proposed new clause goes no further. It would require Parliament to debate not only the wider rollout but also the establishment of the initial phase, and it would require all this to take place during the current Parliament rather than the more careful approach we have set out, which involves an initial phase and evaluation during this Parliament, with decisions to be taken on wider implementation under the next Parliament on the basis of a proper evaluation. We believe that this latter approach, which is provided for in the Bill, is the right one.
The commencement provisions in Clause 67 indicate the Government’s commitment to ensuring that, should it wish to do so, Parliament may scrutinise the implementation of the scheme following the initial rollout and before the subsequent stage commences. Any commencement order which brings the landlord provisions into operation in a subsequent area following the initial rollout will be subject to the negative resolution procedure. The House will be able to trigger a debate regarding the further rollout of the measures and any questions can then be addressed.
I am grateful to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Clement-Jones, for raising their concerns by way of these amendments, which are intended to be helpful and to improve the operation of the proposed landlord scheme. I recognise the particular concern that has been raised about the risk of unlawful discrimination. The Government are clear that race discrimination is unlawful, unacceptable and should be confronted.
Perhaps I may turn now to Amendments 56A to 56D to Clause 28, and Amendments 87A and 89 to Clause 68. These amendments require that the instructions and advice contained within an anti-discrimination code of practice for landlords should not only be laid before Parliament but should also be reviewed and approved by Parliament following a pilot scheme. Amendments 56C and 56D require the Secretary of State to take all reasonable steps to publicise the code of practice to landlords. The Government have already committed to produce and publish comprehensive guidance and codes of practice to landlords, including a separate anti-discrimination code. The Government have taken full account of concerns raised during the public consultation on this issue and the codes of practice and guidance attached to the scheme are designed to minimise the risk of discrimination. The scheme will apply to all new occupants within the private rented sector, is based on documentary evidence, and will be supported by an advice and checking service. Most landlords already check references for new tenants and do so professionally and fairly.
The success of the scheme depends on codes of practice and guidance that are fit for purpose. I think that noble Lords would acknowledge that. These will be further revised and updated in the light of consultation with stakeholders and in the light of experience gained as the scheme progresses. The Bill already requires these codes, including the non-discrimination code, to be laid before Parliament. It places a duty on the Secretary of State to consult certain specified statutory non-discrimination bodies before issuing a draft code in relation to anti-discrimination. I can confirm that the codes will be in place before the landlords scheme is implemented for the initial phase. In evaluating the initial phase, we will of course take account of all aspects of the scheme, including the adequacy and clarity of the codes. I should say to my noble friend Lady Hamwee that the Government are currently considering recommendations made by the Delegated Powers and Regulatory Reform Committee as to the legal process for bringing the codes under Clauses 27 and 28 of the Bill into force, and we will provide a response to these recommendations before the Report stage.
I turn now to Amendment 56E. The Government intend to commence the provisions in a careful and phased manner starting in just one locality first. This will allow us to test the effectiveness of the provisions before they are implemented further. The power in Clause 15(7) allows for amendment to be made to the exclusions from the landlords scheme in Schedule 3. It is possible that it will be necessary during the early implementation to amend the exclusions as we learn from experience when rolling out the scheme. Should there be a need to do so, an argument could be made that a draft instrument made under Clause 15(7) might be hybrid because it may affect private interests in the initial rollout area in an adverse way in circumstances where no other locality not involved in the rollout is affected in the same way. The dehybridising provision is therefore considered appropriate in case there is a need to exercise the power in Clause 15(7) during the initial phase.
Perhaps it would help if I address the whole substance of Clause 15 and the proposal that it should not stand part of the Bill. In general, this is a policy area that has given rise to significant debate and I wish to spend some time in addressing the concerns. Indeed, we have had a large number of speakers on this subject. I am reminded that the right honourable Member for Delyn, Mr. David Hanson, remarked at Committee stage in the House of Commons that he was not opposed in principle to the policy and that if we could stop people here illegally renting property, that could be a good thing. I suspect that most noble Lords would probably agree with that.
Successive Governments have brought about restrictions to services for illegal immigrants: first, so as to protect our economy and legitimate business; secondly, to protect public resources for those with a rightful claim; and thirdly, to address the factors that act as a draw to and sustain illegal immigration. Illegal immigrants are already excluded from accessing most benefits and general access to social housing. There are controls in place to address illegal working, but as yet no similar controls around access to the private rented sector in the same way as we see in some EU states.
The relative ease with which illegal immigrants can secure or change accommodation gives them the opportunity to set down roots and gain an established lifestyle, and the means to evade detection or frustrate their removal. It is also unfair to our lawful residents that they may have to compete for our finite housing stock with people who simply have no right to be here. In some cases, these immigrants fall prey to rogues who are happy to house them in poor or unsafe conditions—we have heard references to beds in sheds—and charge extortionate rents, and who have no concerns about the impacts on local communities. They have also, until now, been able to operate with relative impunity. Where an immigration officer removes one illegal immigrant, these rogue landlords simply move another in. This cannot be right. We have established a system of checks by employers to prevent illegal working. I refer the noble Lord, Lord Watson of Invergowrie, to that precedent for these sorts of checks. The Bill introduces a similar system of checks for private sector landlords, with penalties for landlords who accommodate illegal migrants having failed to conduct the proper checks.
I will look now at how the scheme will work. The Government have made it clear that the checks should be light touch in nature and workable, without creating additional burdens and costs. They must ensure that the vulnerable among us are protected and discriminatory behaviour avoided. Some argue that the checks are complex and beyond the capability of most landlords, but this is at odds with the evidence heard during the public evidence session in the Commons. There we heard from witnesses representing landlords and letting agents that there was no issue with the principle of establishing the identity of a prospective tenant and that most already do so to protect their interests and their property. Indeed, letting agents often consider the immigration status of a tenant. Many then conduct credit or tenant referencing checks, asking for a full range of documentation on the tenant. In most cases, these existing checks will be sufficient for conducting an immigration status check.
For a UK or EEA citizen, a passport will satisfy the check. For immigrant tenants here with limited leave, a biometric residence permit, known as a BRP, will confirm their name, date of birth, nationality and immigration leave in one document the size of a credit card. That will also satisfy the required checks. We started rolling out BRPs in November 2008 and have issued more than 1.5 million. We will be rolling out BRPs to all non-EEA migrants coming here from abroad from November 2014. Biometric residence permits make the process of conducting checks even more simple and straightforward. The landlord is not being asked to identify a forgery or be an immigration expert, only to check the identity of the tenant as they do now and, most importantly, note the time at which their leave expires.
The Government have also considered the potential for these checks adversely to impact on the vulnerable. As I have said, discussions with Crisis, Shelter and the Housing Rights Service in Northern Ireland have played a direct part in designing the checking scheme. This is why checks can also be satisfied by the tenant presenting a full birth certificate and one other document, such as evidence that they are in receipt of benefits. Furthermore, there are a broad range of exclusions from the checking requirement in relation to accommodation provided by a housing authority as a consequence of a duty placed on them, hostels and refuges, as set out in Schedule 3. We have already discussed these.
There is also the facility for the Home Office to authorise persons to rent property in certain circumstances even though they do not have a lawful immigration status. We will exercise this power in favour of those with outstanding asylum applications and failed asylum seekers who face a recognised barrier to returning home. The landlord will be provided with confirmation of the authority to rent by contacting the Home Office, and will receive a response within 48 hours.
Exclusions are also provided so as to avoid unnecessary double regulation; for example, tied accommodation and student accommodation, where the employer or educational institution will already have conducted immigration status checks, are expressly excluded. We have listened carefully to concerns raised by the higher education sector about the adequacy of the exemption for student accommodation. The Government are aware of the concern about the scope for creating a double regulatory burden on higher education institutions as a consequence of introducing the landlord scheme. Colleges and universities already have obligations to check the status of their students under the student sponsorship arrangements, as the noble Baroness, Lady Warwick, will know.
I am sorry that the noble Lord, Lord Hannay, is not here to hear this but it is important because it represents our evaluation of this issue in the light of the debates we have had. We have listened carefully to the views expressed by Universities UK, the Russell Group and Universities Scotland that we have not got this exemption quite right, that it does not go far enough in covering the different circumstances in which higher education institutions arrange accommodation for their students. After careful further reflection, we have concluded that a broader exemption would be appropriate, to cover all accommodation that is owned, managed or arranged directly by higher education institutions. As I have indicated, we will be bringing forward an amendment in relation to this exclusion on Report. I reassure the noble Baroness that it will be possible for students from abroad to arrange their accommodation through the university without any further checks because the university, in effect, will be providing the assurance and checking the student’s documentation on arrival, as universities do at present. I hope that goes some way towards meeting the concerns of universities on this measure.
As I have said before, the UK remains a welcoming destination for overseas students. We have made it clear that overseas students will continue to be able to arrange accommodation in advance of arriving here to commence their studies. The Government will also make it clear, through codes of practice and guidance, that the landlord scheme will not provide any succour to those who are minded to act in a discriminatory fashion. Equalities legislation will continue to apply and the code of practice relating to discrimination will be available to courts and tribunals to take into consideration. Landlords and letting agents need ensure only that they conduct these checks in a consistent manner of all prospective tenants.
In addition, I wish to remind your Lordships of the Government’s clear commitment to introduce the landlord scheme in a carefully phased manner, allowing us to gauge the guidance and assistance required by landlords and the capability of our checking services. Working with local authorities and housing charities in understanding any potential adverse impact on the vulnerable will inform our evaluation of the scheme.
I hope that I have assisted in addressing the Committee’s concerns. I add simply that the proposed sanctions are a civil penalty and therefore proportionate. The Bill does not create a criminal offence, as we see in some EU member states. The checking scheme is indeed light-touch and workable. The needs of the vulnerable have been heard, and nothing in the Bill will provide any comfort to those who are minded to act in a discriminatory fashion.
Perhaps I may deal with some of the points that came up. The noble Baroness, Lady Smith, asked how the scheme would be enforced. It will be enforced as part of the normal business of enforcing immigration law. Where immigration offenders are detected or, as a result of an arrest or intelligence received, are found to be working illegally or to have committed a criminal offence, Home Office immigration officials will investigate where the person is living and apply penalties where appropriate. Rogue landlords and repeat offenders will face far heavier penalties.
The noble Baroness asked how people will prove the right to rent. Checks apply only where the person is renting as their main and only home. The document list has been broadened following the consultation to reflect existing checking practices by landlords. Many classes of tenancy are exempt to protect the vulnerable, such as refuges and hostels. We will phase in the scheme carefully and gradually, starting in a single area, to ensure that support arrangements work effectively.
The noble Baroness also asked who is included in the checking requirement. Landlords must take reasonable steps to establish which adults will be living at the property. It applies to those granting a licence to lodge. Where a tenant sublets the property or grants a licence to lodge, the tenant in turn is responsible for the checks. The checking requirement applies only where the property is rented as a person’s main or only home. It does not apply to guests.
The noble Baroness asked also about the codes. We have published draft codes to help practitioners’ and Parliament’s consideration of the Bill. The two codes will be formally laid before Parliament before the scheme comes into force. We are aware of the DPRRC’s recommendation that these be introduced by order and are carefully considering it. We are continuing to develop the codes.
The noble Baroness asked about 16 to 17 year-old care leavers. Only adults over 18 are subject to the requirements. Care leavers whose accommodation is arranged by local authorities, which owe this group a duty to provide assistance, will benefit from the exemption in paragraph 7 of Schedule 3. The noble Lord, Lord Best, said that he thought that the scheme might drive people into the hands of rogue landlords. For the first time, we have legislation in place which will make the position of rogue landlords that much more difficult. It gives us the power for the first time to take action against rogue landlords. We need new powers to tackle the shadow housing market which already exists.
My noble friend Lady Neville-Rolfe mentioned a number of matters in her very positive suggestions, for which I am grateful. The vast majority of landlords operate on a small scale. The policy is intended to impact hardest on unscrupulous landlords, as I have said, but the scheme takes account of the wide-ranging circumstances within the sector by allowing for a range of penalties that reflect the number of immigration offenders detected within a property. The highest fines are reserved for serial offenders—I shall come on to fines in a moment.
My noble friend commented on the planned trial of the scheme. We are not yet in a position to announce a timetable and location for the trial, but will do so shortly. The lessons learnt will be evaluated and will impact on the guidance and code of practice that will be published before the start of the scheme. I am grateful for my noble friend’s suggestions as to how the provisions should be communicated. We are committed already to working with the Department for Communities and Local Government to raise awareness.
We will make full use of any available tools to include that, including placing guidance and codes of practice online, together with other tools and links, to guide landlords and tenants through the process. The noble Baroness’s suggestion about model terms and conditions is a good one. The Government will not seek to impose restraints on the contracts, but see value in consistency and transparency. We will continue to dialogue on this point.
I do not accept that the scheme need introduce excessive bureaucracy. The noble Baroness, Lady Lister, asked about the application to lodgers. They are indeed covered by the scheme. We will work with social landlords to help them support their tenants who decide to take in a lodger, ensure that they understand their obligations and help them to comply with the scheme. I hope that noble Lords are getting the message that we want the scheme to be implemented in full co-operation with those who are responsible for good housing policy everywhere.
The penalty at the bottom end in the case of someone who has committed an offence involving a lodger will be £80. For multiple breach, it may go up as high as £500. The first breach of tenants in rented accommodation will start at £1,000 and may rise to £3,000 but, as with all penalties of this type, there is a proper system for evaluating the level of the fine.
On what review will take place of discrimination, I think that I explained that we will work with local authorities and representative bodies during the first phase to evaluate the impact of the scheme. We want to get this right. We think that this is important. We would not be doing it if we did not think that it was important. We appreciate that it will not be simple and straightforward—we will have to change people’s habits—but we can see the benefits.
I say to the noble Baroness, Lady Meacher, that the letting agent carries the responsibility in the case of a proper arrangement made between the letting agent and the landlord. The letting agent takes that responsibility on.
I think that I have dealt with the point made by the noble Lord, Lord Watson of Invergowrie. Employers discriminating will be a breach of the code, as I have already said. I reassure the noble Lord, Lord Hylton, regarding the code against discrimination. I realise that he takes this matter very seriously.
I conclude by referring to the amendment proposed by the noble and learned Lord, Lord Hope of Craighead. I apologise for leaving it until last, but it seemed the most appropriate place to consider it. We want to provide reassurance that the Secretary of State would consider any representation from the Scottish Human Rights Commission on the code of practice relating to the avoidance of discrimination. However, the Equality and Human Rights Commission is the national equality body for Great Britain, which is to say, mainland UK, which is why it appears expressly, and the Scottish Human Rights Commission does not. In practice, of course, any information that is provided by an authoritative body on the matter is of concern to the Home Office, and the Secretary of State will take proper note of it.
The Equality and Human Rights Commission has a statutory duty to monitor compliance with equality and human rights legislation, and may advise the Government on the likely effect of a proposed change in the law and, in our view, it is the appropriate body to be consulted on this matter.
This is a complex issue. I have spoken at some length, but a lot of points have been raised. I have rather taken a leaf out of the book of the noble Baroness, Lady Smith, in that I want to see the clauses in this part of the Bill dealt with to some degree by the way in which we have been able to debate this issue. I thank noble Lords for their contributions.
I am grateful to all those who have spoken in this debate. The Minister has indeed spoken at some length, and I would like to read Hansard and reflect on some of the comments that he has made.
I have a couple of observations. I think that the Minister said previously, in relation to Clauses 32 and 33 regarding the health surcharges, that, and I paraphrase, he did not want to make nurses and doctors into immigration agents, yet that is what the Government are doing to landlords in this clause. I must admit that he has not reassured me on the effectiveness of the measures in tackling the problems of illegal immigration, which is the process, but neither has he reassured me that it does not place disproportionate and unnecessary restraints and obligations on British citizens and overseas visitors who have a right to be here. I am not convinced that the balance is right or that this measure achieves its objectives.
I think that there is widespread support for a pilot. I will read what the Minister has said, and I know that he has tried to reassure noble Lords that his phased rollouts are the same as or better than a pilot, but they are still a commitment to proceed. The thing about a pilot is that it has to come back to your Lordships’ House to be re-evaluated and looked at. He says that decisions on a phased rollout will be taken in the next Parliament but in fact decisions will be taken in the Bill. As I understood it, he said that a decision would be taken in the next Parliament if there were concerns. I am not convinced that I am satisfied that that fully addresses the point that I was raising about a step-by-step process to see if this works and, if it does not, whether to proceed. The point made by noble Lords around the House today is that they are not convinced about the workability—which is a word—of these measures, and that they would want to be reassured before the measures went ahead. An individual pilot would do that. I shall look at exactly what he said and reflect on it.
The Minister has made clear the Government’s view on the issue of unlawful discrimination, but whether the measures proposed fully address it has yet to be proved. I think that the Government are right to reflect on the detail of the higher education further exemptions and look at bringing forward a better amendment.
I return to the issue that was not really addressed to my satisfaction: victims of domestic violence who may not have the appropriate documents. The Minister skated over that. We are talking about people who may have left their home in a hurry and do not have the available documents but are legal citizens and have the right to be here. I still think that they are placed in the most difficult positions if they are not able to rent.
My noble friend Lady Lister made a point about lodgers. She gave the example of the bedroom tax, where the Government have advised people to take lodgers. Those people will be subject to the provisions of this Bill and could find themselves facing a fine because they have not complied with it, even though they were told by the Government to take in lodgers and now much more onerous conditions have been put on that.
I ask the Minister to reflect on the conditions here. I notice that item 10f in list A of acceptable documents in the draft code of practice for landlords is simply a full stop. I am sure that that is not a document that the Government require. Obviously the documentation has some work to be done.
I am not entirely satisfied. I appreciate that the Minister has made an effort and taken a great deal of time to try to address all the points. I will read what he said in
Hansard and reflect on the comments that he has made. For now, though, I beg leave to withdraw the amendment.
Amendment 50 withdrawn.
Moved by Baroness Hamwee
50A: Clause 15, page 15, line 17, at end insert “but does not include an agreement or arrangement under which an exclusive right of occupation is not granted”
My Lords, I shall speak also to Amendments 50B, 51B, 51C, 51D and 54ZA. This group of amendments takes us to the type of accommodation. Amendment 50A deals with a point that has been referred to already—that is, where there is no exclusive right of occupation.
The Minister has referred a number of times to the known unknowns, or the unknown knowns. I think there may be a lot of unknown unknowns in this, and my amendment asks whether the Government are confident that arrangements can work where what comes within the definition of a tenancy is, as we have heard, not what one normally understands to be a tenancy, such as lodgers and all sorts of licences which are not exclusive licences. A lot people live in premises on an informal basis, which is hardly the ideal home, but they may be the only residents, and that is what brings the accommodation into the Bill. Noble Lords have already referred to whether a landlord will go through the checks, whether discrimination will be fed and whether an underground black market will be created. Amendments 55B and 55D, tabled by the noble Lord, Lord Best, address similar points.
The Minister told us not that long ago that there would be a range of penalties. He talked about £80 perhaps going up to £500 for multiple offences and £1,000 going up to £3,000. I am not sure whether I got his words quite correctly, but he referred to something like a proper mechanism for evaluating the level of the fine. I do not know whether he is in a position to say a little more about what the mechanisms for evaluating the level will be. It is clear that the Government have given this some thought. Indeed, it was referred to in the evidence session of the Public Bill Committee by the representative of one of the landlords organisations. She said,
“we do not agree with the proposed disparity in penalties””.—[ Official Report , Commons, Immigration Bill Committee 29/10/13; col. 56.]
That is not my point. I just want to get some clarity as soon as we can on this.
Amendment 50B would preclude the Secretary of State reducing the types of excluded—which I find quite a difficult term in this context—premises which do not come within the scheme.
Amendments 51B, 51C and 51D relate to the way in which refuges are defined in Schedule 3. I am delighted that refuges are now within the schedule. My amendments would be refinements. The schedule does not at the moment take account of the fact that costs may be provided by a voluntary organisation or charity. The term is simply “operated”. The Bill states,
“its costs of operation are provided wholly or in part by a government department or agency, or by a local authority … it is managed by a voluntary organisation”.
There are a variety of models. A hostel may be owned by a voluntary organisation and the provisions seem to stand being reread and made as extensive as they are in practice.
Amendment 51D would extend the group of those who might benefit from the provision from being simply those who have been subject to an incident or pattern of incidents of the behaviour spelt out to those who are threatened with or avoiding such behaviour or who might be subject to it. It is looking ahead to prevention, as it were.
I accept that it would be unusual for somebody to flee without actually having been subject to some of the behaviour that is listed here, but I want to ensure that we are as inclusive as possible. No one seeks a place in a refuge. Nor, indeed, would a refuge, the places in which are in short supply, provide a place lightly. We should not add to the difficulties of someone seeking refuge, nor to those of the refuge operator. I should perhaps declare an interest as having been chair of Refuge for some years. I would be concerned if the operators of refuges had to interrogate their prospective clients in the way that this clause might suggest.
Finally, Amendment 54ZA would add holiday and short-term business lettings to the excluded premises. I am probing here because of the amount of administration required; the Minister may disagree with that, given his earlier comments. However, I think that most noble Lords see the Bill as requiring a lot of administration. I hesitated before tabling this amendment, because I would not like to think that it might mean taking the use of accommodation as a home out of the ordinary private rented sector. I mention that in order to try to avoid the criticism, but also to probe the point that holiday and short-term business lettings may be excluded by Clause 15(4), which refers to,
“their only or main residence”.
Perhaps the Minister can help me on that one. I beg to move.
My Lords, I shall jump in quickly on this. I hope we can move this debate on because I think I can satisfy my noble friend Lady Hamwee on the points that she has raised.
Amendments 50A and 50B would exclude temporary living arrangements from the scheme and prevent the Secretary of State from removing living arrangements from the excluded list once added. In relation to the first point, I draw attention to Clause 15(4), which sets out that the restriction on letting will apply only to agreements which allow a person to occupy the premises as their only or main residence. Further, Clause 27 provides for the Secretary of State to set out in a code of practice the factors she considers when determining whether someone is occupying premises on this basis, and provide guidance relating to holiday lettings or lettings connected with business travel in particular. In relation to Amendment 54ZA, the Government have no intention of requiring a status check where these circumstances pertain.
Further, while other temporary living arrangements such as hostels and refuges are expressly excluded from the scheme by Schedule 3, excluding other instances of multiple occupations will simply undermine the scheme. I am looking carefully at Amendment 50B. This would restrict the Secretary of State’s power to amend the provisions in Schedule 3 in the future, so that she could not remove a description from the list. It may assist my noble friend if I clarify that the intention of this provision is not to allow the Secretary of State to reduce the scope of the exemptions from the scheme in the future: exemptions have been provided for arrangements which ensure important services can be provided to the vulnerable, and where the restriction would impose a double or disproportionate regulatory burden.
Careful consideration has been given to the drafting of the exclusions, and consultation has taken place with stakeholders. However, once the scheme is in operation the exclusions may need to be amended to ensure that they are and remain appropriately targeted. I am afraid that our experience is that circumstances may change over time and that many illegal immigrants will seek to exploit what they see as loopholes in the law. It is surely appropriate, particularly as the initial phase of rollout is to be evaluated, to allow the Secretary of State to address abuse where it may arise, sometimes of course through displacement.
On Amendments 51B and 51C, accommodation provided by charities or voluntary organisations in the form of refuges and hostels is already excluded. Similarly, Amendment 51D will achieve no more than the draft paragraph already provides in relation to excluding refuge accommodation provided to those suffering from or threatened with abusive behaviour. The Government have taken a great deal of care here and have discussed this paragraph in some depth with two leading organisations that provide such accommodation.
I hope that in light of those points I have been able to satisfy my noble friend. If not, I hope that she will come back to me after Committee so that we have the chance to talk about it. I hope that she will withdraw her amendments.
My Lords, on Amendment 50B, if the objective is to allow refinement rather than wholesale change, I hope that we may look at refining the provision so that that is quite clear in the Bill. Yes, I would welcome a further word on Amendments 51B and 51C. On Amendment 50A, sadly, some lodgers and some sofa surfers are using friends’ or—I do not know what the term is—lodging-providers’ premises as their only or main residence. That is an outcome of homelessness. Therefore I hear what the noble Lord says about the intention, but I am not sure that it quite meets the point that I am making. However, obviously at this time I beg leave to withdraw the amendment.
Amendment 50A withdrawn.
Amendment 50B not moved.
Clause 15 agreed.
Amendments 51 and 51A not moved.
Schedule 3: Excluded residential tenancy agreements
Amendments 51B to 51D not moved.
I must tell your Lordships that if Amendment 52 is agreed I cannot call Amendments 52A to 54ZZA for reasons of pre-emption.
Moved by Lord Clement-Jones
52: Schedule 3, page 61, line 31, leave out from “occupation” to end of line 12 on page 62 and insert “in residential premises between—
(a) landlord, as defined in subsection (3) of section 15; and
(b) an applicant for a Tier 4 visa holding a Certificate of Acceptance of Studies issued by a body listed in the schedule to the Education (Recognised Bodies) (England) Order 2013 (S.I. 2013/2992)”
My Lords, in moving Amendment 52 I will speak also to Amendments 52A, 53 and 54. At this time of day I feel as though I am trying to hit a moving target to some degree with these amendments. I heard what the Minister had to say about the concessions he has given as regards rejigging the exemption for residential property occupied by students, where it is owned, managed or arranged directly by a higher education institution so that there will be no need for further checks. Like the noble Baroness, Lady Smith, I, too, look forward to reading Hansard tomorrow to clarify what the Minister has given by way of an assurance on that. However, I am pretty sure that these amendments—subject to reading Hansard—go rather wider than the concessions that the Minister has given. They derive from the concerns that I, my noble friend Lady Hamwee and many noble Lords expressed at Second Reading and continue to do so about the requirement for landlords to check a prospective overseas student’s immigration status prior to renting accommodation to them.
Universities UK and many student bodies have expressed their concerns extremely cogently. Universities UK says that, while acknowledging that some student accommodation will be exempt, it is deeply concerned, as are we, that these measures will discourage landlords from letting accommodation to international students and staff or those who appear to be from outside the UK, particularly at peak times when they are under pressure to make decisions quickly. Secondly, Universities UK says that the measures may leave international students and staff unable to secure accommodation before their arrival in the UK. Given that many international students are young and living away from home for the first time, this could cause considerable anxiety, and could add to the perception that the UK is unwelcoming. The noble Baroness, Lady Warwick, made that point in the previous debate. I note the Minister’s assurance in his subsequent correspondence that this can be done on a conditional basis, but this will not be attractive to landlords who will have to take the risk that the relevant visa or residence permit will eventually be produced. The lack of certainty is the next issue posed by Universities UK, which says that the lack of certainty provided by a residential tenancy may also prove a significant barrier to non-EU staff looking to move to the UK to work in our universities. This uncertainty could be a particular disincentive to those with children. Finally, Universities UK says that exemptions for halls of residence are welcome, but it is not clear that they will cover the wide variety of arrangements between universities and privately owned student accommodation. Of course, that is the objection that I believe my noble friend has addressed in his last statement. We will examine that carefully. That is only one of the four arguments that Universities UK puts that the Minister has addressed.
Amendments 52 and 52A provide alternative ways in which to ensure that prospective tenants holding tier 4 visas who could demonstrate that they hold a certificate of acceptance of studies from a university will be exempt from further checks of their immigration status. Amendments 53 and 54 would broaden the scope of the exemption for halls of residence, which will not be subject to the residential tenancy measures.
International students already face difficulties in securing accommodation and are often made to pay large advance payments of rent. Bookings of accommodation for students often have to be made well in advance at a time when overseas students cannot prove their immigration status. Landlords will be discouraged from letting accommodation to international students and staff and they will be relegated to the back of the queue in the search for accommodation. How can causing this kind of barrier and concern to young people coming here for the first time be the right way to welcome them? How will this lack of certainty encourage overseas academic staff to come and work in our universities?
The fear of the student bodies that have briefed Members of this House is that this will lead to more discrimination against black and ethnic minority students when looking for housing. Liberty believes so too, citing the National Landlords Association and the UK Association of Letting Agents, which both expressed concerns to the Public Bill Committee that the Bill could impact on ethnic minorities. Indeed, as Liberty also says, the very inclusion of Clause 28, which requires the Home Secretary to produce a code of practice on how landlords should avoid contravening the Equality Act 2010, is tacit acceptance that the policy will encourage unlawful discrimination.
Why are additional provisions required for students? International students are already subject to extensive checks prior to arrival in the UK and require a certificate of acceptance of studies from a higher education institution. Surely being vouched for by their university when the accommodation is occupied should be enough. After all, the risk of losing highly trusted sponsor status, as the NUS has said, means that higher education institutions are now scrupulous in their monitoring of overseas students. The Residential Landlords Association and the British Property Federation have pointed out the problems with the latter, in particular stating that the proposals constitute a disproportionate burden on the landlord and tenant compared to their likely outcome for immigration control. In the NUS survey this month,
40% of international students believe that these landlord checks will negatively impact on their decision to study in the UK—and more in the case of PhD students concerned about spouse and children.
I believe that overseas students should be specifically exempt from these provisions. I beg to move.
My Lords, I think that most of us have spent all day trying to catch up and find out where we were. The day started off with a considerable readjustment of groupings, which has meant that sometimes matters which were going to be discussed at one point were discussed at another. I apologise if that has sometimes meant that our debates may have appeared a little disjointed.
I am sure that, in moving this amendment, my noble friend Lord Clement-Jones, had not anticipated that I would be in a position to make an announcement. Although he says that it does not meet all the points that Universities UK has suggested, I think that it goes a very long way towards it. At bottom, it succeeds in making it plain that, where the university itself is responsible for arranging a student’s accommodation, be that a student coming to this country for the first time and making accommodation arrangements ahead of time, or a student already at the university who needs accommodation, they will be excluded from any further checks. I believe that this is a considerable step forward. I am pleased that I have had an opportunity to make the point again because throughout these debates we have said that we welcome the brightest and the best students. There is no limit on numbers and we are very pleased to see overseas students coming to study at our higher education institutions.
Lawful students should not be deterred by the provisions in the Bill. We need to make sure that those do not get in the way of them coming to this country. They are not designed adversely to affect students during their stay here. I understand the reasoning behind the amendments tabled by my noble friend Lady Hamwee and spoken to by my noble friend Lord Clement-Jones. We do not want to have to check the immigration status of any person more than once. Educational institutions already conduct checks of students as part of their obligations as sponsors of non-EEA migrants. They have taken a position of responsibility in respect of their students which we would like to reinforce by the amendments that we will bring forward on Report to extend their responsibilities in this regard. If accommodation is controlled by a registered educational institution, we agree that the tenancy should be exempt from any further checking requirement. The Government intend to bring forward an amendment on Report to broaden this exemption to cover a wider range of circumstances where student accommodation is arranged by the university or college.
I know that noble Lords are concerned about other matters and want to talk about other impacts of the Bill on students in general. When we had the previous debate on the amendment of the noble Lord, Lord Hannay, I indicated that I thought it would be good to have a further discussion with him. I want to make sure that we get these matters right, and it is most important that by Report we will have made every effort to do so as a result of contributions made by noble Lords. I hope that my noble friend will be prepared to withdraw his amendment.
My Lords, perhaps I may raise one issue for the Minister to consider before Report. Before I do so, I should say that I very much welcome the Government revisiting this issue but, as my noble friend Lord Clement-Jones said, it does not sound as if it is going to go as far as we would like.
One of the areas in which we would go further is on whether the premises are within the control of the university or college. We are looking at this matter from the student’s point of view. My noble friend Lady Manzoor, who will jump because I have mentioned her, said to me the other day that she thinks that a landlord needs to see evidence that the tenant is a student for council tax purposes. If that were so, it would go a long way towards dealing with any potential abuse. Can I leave that with the Minister to consider? Perhaps a bit of lateral thinking there might help to reassure the Government as regards the rather more extensive amendments that we are proposing.
It may be late but it is not too late to hear an idea that is worth considering, and I am grateful for that suggestion.
My Lords, I thank the Minister for his reply and I can understand that it must be slightly frustrating to have to keep re-replying and repeating assurances, but that is the way in which the groupings have worked today.
I appreciate the concession that the Government have made and no doubt will be bringing back but we will obviously need to see the small print. My noble friend Lady Hamwee is correct: I suspect that the concession will not go as far as we would want because not all accommodation for overseas students is arranged, owned or managed by universities. However, we will no doubt take advice from UUK as to whether the concession really does move us a long way forward or whether a substantial amount of accommodation for overseas students would not be covered by it.
I took heart from the Minister’s statement that the Government did not want a situation whereby the immigration status of students, having been checked by the educational institutions, was then checked by landlords. If that is the general principle, it sounds as if we are making real progress in this part of the Bill. I look forward to seeing the text of the amendment that the Minister brings forward on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment 52 withdrawn.
Amendments 52A to 54 not moved.