Draft Immigration Act 2014 (Residential Accommodation) (Maximum Penalty) Order 2023 Draft Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2023

Alison Thewliss Excerpts

Monday 15th January 2024 General Committees

[Alison Thewliss (Glasgow Central) (SNP)]

It is a pleasure to see you in the Chair, Mr Dowd. It is nice to see the Minister in his place, substituting as he is for the other Minister. We have the Minister for Legal Migration and the Minister for Illegal Migration, the Tweedledee and Tweedledum of the topsy-turvy world of the Home Office—I always forget which one is which, but it is nice to see this Minister here today.

I am a little confused by the provisions relating to the residential accommodation maximum penalty order. The statutory instrument states:

“This Order extends to England and Wales, Scotland and Northern Ireland”,

whereas the explanatory memorandum is clear that

“the Right to Rent Scheme is not in force in Scotland, Wales and Northern Ireland.”

If the Minister explained why the territorial extent is being extended in a statutory instrument, that would be quite welcome. Is it a further overstretch by this Parliament into the legislative competence of the devolved Governments? I would not be surprised.

Paragraph 6.7 of the explanatory memorandum states:

“However, this Order will only produce a practical effect in England, until the remaining provisions giving the Scheme operative effect are fully brought into force in respect of premises located in other areas of the UK.”

I am not aware of it being the intention of any of the devolved Governments to bring this into force, so I am not sure why this is in the explanatory memorandum and what the Minister is intending to happen here. If it is his intention for that to happen, that is quite a worry. I want his reassurance that such a scheme, which has been proven to be discriminatory and to have a chilling effect on the ability of non-UK nationals and UK nationals who do not have a passport—perhaps they cannot afford a passport—to rent accommodation in England, will not be extended to the rest of the UK against our will.

I am also concerned by the scale of the increases in penalty notices; these are really significant increases and I have not heard terribly much from the Minister to justify that. He has talked about the amount that his Government cannot and do not even collect at the moment; they are not doing a competent job of collecting those fines, so it seems ridiculous that they have been given the chance to collect yet more money from people when they are not collecting what they should at the moment.

I also want to speak to the second statutory instrument. In the Minister’s world, it seems to be very simple: people are either legal or not legal, able to work or not able to work. But he may be interested in the case of a gentleman who came to see me at my surgery just last Friday. That gentleman has been here for 10 years and he has always had the right to work, but when he went to check his digital status on the Home Office website when his biometric residence permit was renewed nine months ago, he was told that he did not have the right to work any more. Since finding out that suddenly he did not have the right to work any more, he has been trying to get this fixed: he has a family to feed and rent to pay; and he is indebted to his friends now as well, because he has been trying to gather the money to do these things and to keep going.

This gentleman has been to a lawyer, the lawyer has been to the Home Office, and they are going round and round in circles. He has been told that it is some kind of technical glitch in the system. Well, that is not good enough. This man has the right to work—he has all the paperwork as far as anybody can figure—but the Home Office is saying that there is a technical glitch. If he were to work, he would be caught by this order and his employer would be fined. If he was renting in England, he would also be caught by it, because he cannot prove that he has the right to work due to the Home Office’s incompetence and their system’s technical glitch. I would be happy to pass on this gentleman’s details, because he is not illegal, so his case does not fall to the other Minister. He is not in the UK illegally, and he should be getting on with his life and beginning to work. He should be providing for his family, as he wants to, but the Home Office’s system says no.

Will the Minister tell us whether people who end up in circumstances such as those of my constituent will lose their jobs, homes and everything else because the Home Office’s computer says no? Given the digital checks, the system is supposed to work better than that, but it has not done so in the case of my constituent. He has been trying his best—waiting and emailing constantly—but he is getting absolutely nowhere. How many other people in England might end up in similar circumstances, only to find that they lose their homes? I am glad that in Scotland this gentleman would not face losing his home in these circumstances.

I have worked with employers in the past. As the Home Office’s systems have not properly notified them that a visa is expiring—or that they need to renew their licence because the paperwork has gone to another address or somewhere the person did not expect, there has been a change of personnel or the wrong email address has been used—people have inadvertently ended up on the wrong side of the Home Office’s rules. They can be fined up to £60,000, which could finish some businesses all together. We know from the many cases of things that the Home Office has got wrong over the years—from the TOEIC scandal to the highly skilled migrants scandal and the Windrush scandal—that so many people have ended up on the wrong end of the Home Office’s rules and not even received an apology, never mind recompense for the loss of earnings. In many cases, they have felt outright embarrassment within their community about ending up on the wrong side of those rules.

Will the Minister tell us what leeway people have to appeal when they have inadvertently ended up breaching the orders through some administrative error? It goes from being quite a significant fine for that error to being an absolutely devastating fine for the person, the business and everybody involved. I know the Home Office will exercise a degree of discretion should something like this occur, but I have not found it to be a particularly forgiving Department when such things happen. After all, it is the Department of “deport first and ask questions later”.

I will conclude my remarks there. I will vote against the draft orders, because I believe that they are far too heavy a burden on individuals and businesses. The Minister has not justified the increase that he is providing today, and I seek reassurances on the issues I have raised.

--- Later in debate ---

[Tom Pursglove]

The hon. Gentleman sort of pre-empts what I was going to say in my remarks; I was just trying to deal with each contribution in turn to ensure that the points are dealt with thoroughly. However, I can tell him that the Home Office is allowed to keep £19 million of the civil penalty regime income, and that is put into the consolidated fund, underpinned through the Immigration Act 2014.

The hon. Member for Glasgow Central rightly also asked about some of the safeguards around debt recovery and appeals against the civil penalties. People can appeal a civil penalty decision if, following an objection to the Home Office, that decision has been upheld. An appeal must be made on the same grounds as the objection, and the employer, landlord or letting agent must do so within 28 days, registering the appeal at a county court or sheriff court. The three grounds are as follows: the person is not liable to pay the penalty, which could mean they are not the employer, landlord or letting agent of the illegal migrant identified; they have a statutory excuse, which means they carried out checks as required; and the level of the penalty is too high. She specifically asked whether there is sensible discretion within the system, and the answer is yes: officials have discretion in order to deal with such matters appropriately.

[Alison Thewliss]

The Minister says that somebody has 28 days to appeal, which is quite a short period of time. How long does the Home Office take to conclude these cases?

[Tom Pursglove]

My understanding is that we try to deal with the matter as quickly as possible following an appeal being lodged and that we work to a similar 28-day timescale.

I understand why the hon. Lady asked about the devolved Administrations. They were not consulted on these measures, which are reserved policies, but the Government wrote to them to advise on the increase to the civil penalties when the draft orders were laid in November 2023. On whether the civil penalty increase applies across the UK, the right-to-work scheme has UK-wide application, as the hon. Lady knows, and the right-to-rent scheme is in force in England only. The longer-term intention is to explore rolling the scheme out to the rest of the UK.

The hon. Member for Bermondsey and Old Southwark asked an important question about how we ensure that the penalties are paid. The Home Office works closely with debt recovery providers and other Departments to do as much as we can to ensure that they are. Where a penalty is unpaid, it will be registered with the civil court and enforcement action commenced. Where companies take action to dissolve and be struck off the companies register, we may lodge an objection against the application when a penalty has not been paid. Where an employer remains non-compliant or becomes liquidated or bankrupt, details are shared with the Insolvency Service, which considers action under the Company Directors Disqualification Act 1986. Successful action to disqualify an employer as a director can tackle the practice of carrying on the same business successively through a series of companies each of which becomes insolvent. As I mentioned earlier, we look carefully at what more we can do to ensure that the fines are paid as expeditiously as possible.

Let me turn to how the increase was calculated. Civil penalties for non-compliance have remained the same since 2014, despite periods of high inflation, and the approach to the increase in the civil penalties was based on evidence and research on international comparisons and other civil penalty schemes operated in the UK. Where illegal working is identified, the increased penalty level for the right-to-work scheme aligns the UK at the higher range of sanctions applied across international comparators, including France, Germany, Spain, Belgium and Australia.

An employer, landlord or letting agent may request permission from the Home Office to pay a civil penalty in instalments over an agreed period, which is usually up to 24 months. In such cases, they should provide the full reasons for their inability to pay the full penalty amount in one payment. I reiterate that the Home Office has discretion to handle such matters sensibly and appropriately, which I think addresses the points raised by the SNP spokesperson, the hon. Member for Glasgow Central.

The shadow Minister, the hon. Member for Aberavon, had an interesting approach, in that he alluded to things being a little bit illegal or more illegal. The fact is that the activities and behaviours that we are seeing are illegal and unacceptable, and it is right that we have a firm and robust approach to them. We welcome the shadow Minister’s and Opposition Members’ support for the changes to the level of the penalty. The Home Office has delivered an extensive, wide-reaching engagement programme to employers, landlords and lettings agents. Extensive communication strategies, including online guidance, webinars and engagement events, are in place to help ensure that employers, landlords and letting agents understand their obligations.

Between the announcement of the proposals to increase the civil penalties in August 2023 and 20 January, Home Office officials have supported more than 30 engagement events, reaching more than 11,000 stakeholders across the relevant sectors. The Home Office continues to work with members of the Home Office employers consultative group and landlord consultative panel, which cover all major employment and rental sectors. It meets them quarterly to seek their input and to inform our future guidance and communication products in respect of the operation of the right-to-work and right-to-rent schemes. As the shadow Minister will appreciate, the employers that we engage with are those that behave in a compliant manner; the individuals and businesses that we interact with through the penalties often have a very different posture. There was no duty to consult at the outset, but we have had extensive engagement.

A very valid question was asked about discrimination. Of course, all of us in this House and in Government want to ensure that we get this right. The Home Office has published codes of practice for employers, landlords and letting agents on how to avoid unlawful discrimination when undertaking checks. The codes of practice clearly stipulate that employers, landlords and letting agents are advised to provide individuals with every opportunity to demonstrate their right to work or rent. They should not discriminate on the basis of nationality or any of the other protected characteristics. We are clear that those who discriminate are breaking the law.

The evaluation has found that the right-to-rent scheme is not discriminatory, although that does not rule out discriminatory behaviour from individual landlords and letting agents. It is often easier for landlords, letting agents and employers to carry out checks digitally, with no requirement for them to understand the types of documents that renters and employers have. In some cases, it is actually easier to bring a migrant into employment or a residential tenancy agreement than a British citizen.

My hon. Friend the Member for Amber Valley and the hon. Member for Aberavon raised a point about immigration enforcement. That of course fits within the portfolio of the Minister for Countering Illegal Migration, my hon. and learned Friend the Member for Mid Dorset and North Poole, but I can say that we are very much scaling up immigration enforcement work in tandem with the changes. The Home Office immigration enforcement teams are surging the number of enforcement operations being conducted to bring those violating our laws to justice.

Over the first three quarters of 2023, 10,509 enforcement visits took place, of which 4,721 were illegal working enforcement visits, which is a rise of more than 40% compared with the same period in 2022. Between January and November 2023, over 1,400 right-to-work civil penalties were issued, which is an increase of 40% compared with the same period in 2022; the value of right-to-work civil penalties issued was over £26 million, which is over 45% more than in the same period in 2022, and demonstrates that those efforts are being stepped up and are delivering results; 140 right-to-rent civil penalties were issued, which is an increase of over 75% compared with the same period in 2022; and the value of right-to-rent civil penalties issued was over £136,000, which is an increase by over 80% compared with the same period in 2022.