Oral Answers to Questions
James Brokenshire Excerpts(8 years, 5 months ago)
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Greg Mulholland (Leeds North West) (LD)
2. What assessment she has made of the adequacy of complaint procedures in respect of rejected passport applications.
The Minister for Immigration (James Brokenshire)
Her Majesty’s Passport Office takes complaints seriously and has a robust process to examine customer concerns. Ultimately, complaints can be referred to the independent Parliamentary and Health Service Ombudsman for adjudication.
Greg Mulholland
I thank the Minister for that answer. May I bring to his attention the case of Muhammad Ifran Ayub, who is seriously ill awaiting a heart transplant and has been trying for two years to get a visa for his two-year-old son, who is currently in Pakistan away from both parents? There have been a series of failures in dealing with this case. Will the Minister meet me and the family to discuss it?
James Brokenshire
I will always consider representations made by right hon. and hon. Members. It is difficult for me to comment in detail on the Floor of the House on the individual circumstances of the case, but HM Passport Office has to examine documentation very carefully and, sadly, fraud and other criminality can at times be involved. It needs to consider cases dispassionately and, when there are compelling circumstances, reflect them in the decisions it takes. I will look at the facts that the hon. Gentleman has raised.
Stuart Andrew (Pudsey) (Con)
3. What assessment she has made of the performance of the police in tackling hate crime.
Helen Whately (Faversham and Mid Kent) (Con)
T2. More than 1,000 unaccompanied asylum-seeking minors have arrived in Kent this year, putting immense pressure on local services. Kent welcomes the Government’s commitment to increased funding, but foster homes are full so we need to find homes for those young people around the country. What steps are the Department taking to create a dispersal system for unaccompanied asylum seekers?
The Minister for Immigration (James Brokenshire)
I commend Kent County Council on the work it has done in dealing with the pressures of unaccompanied asylum-seeking children. We continue to work with Kent, the Department for Education and the Local Government Association to ensure a more equitable dispersal of unaccompanied asylum-seeking children, and we hope to come to the House shortly with further details on such schemes.
Margaret Ferrier (Rutherglen and Hamilton West) (SNP)
T6. Despite the fact that we have the Regulation of Investigatory Powers Act 2000, the Data Retention and Investigatory Powers Act 2014 and the Counter-Terrorism and Security Act 2015, the Government are pushing through yet another Investigatory Powers Bill. Will the Home Secretary let us know whether commercial virtual private network providers will be classed as telecommunications operators under the Bill?
Rob Marris (Wolverhampton South West) (Lab)
About a fortnight ago, with the competence for which it is renowned, G4S placed dozens of asylum seekers in two unsuitable hotels in my constituency, with no prior liaison with the council. Will the Minister assure me that in future, not only in Wolverhampton but around the country, there will be liaison by agencies such as G4S before asylum seekers are placed?
James Brokenshire
I will certainly look into the facts the hon. Gentleman has brought to the House’s attention. Sadly, when there are pressures, asylum seekers sometimes have to be placed in temporary accommodation, such as hotels, but we are absolutely clear that it should be for the shortest time possible, and liaison with local authorities is clearly an important part of that.
Luke Hall (Thornbury and Yate) (Con)
T10. Following the pause in developing a new funding formula, will my right hon. Friend assure me that the Department will work with PCCs and chief constables to find a formula that works for my constituents in Avon and Somerset?
Alison Thewliss (Glasgow Central) (SNP)
The Foreign and Commonwealth Office advises against all travel to Yemen and says that anyone in Yemen should leave immediately. Why, then, does the Home Office think it appropriate to deport my constituent there?
James Brokenshire
We keep our country guidance up to date, and it is reviewed in the light of circumstances, but, ultimately, decisions on whether people should be removed to particular countries are determined by the courts.
Kevin Hollinrake (Thirsk and Malton) (Con)
It is now quite clear that the hundreds of thousands of migrants who have entered Europe over the last few months have not undergone basic security checks. Is now the right time for the EU to reconsider the principles of free movement of people and labour?
James Brokenshire
It is clear that significant lessons need to be applied and examined. We are clear, from our perspective, about the checks we put in place at our borders, and in the light of the weekend’s events, Border Force has strengthened its activities at the channel ports, which is the right thing to do.
Immigration Bill (Thirteenth sitting)
James Brokenshire Excerpts(8 years, 5 months ago)
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The Minister for Immigration (James Brokenshire)
We have already had a wide-ranging debate on schedule 6, so I do not intend to return to some of the “in principle” issues of which we have had significant discussion. The two amendments in the group, however, touch on the narrow issue of further submissions and concern how we propose to deal with failed asylum seekers who submit further submissions such that their removal would breach the UK’s obligations under the convention on refugees or under article 3 of the European convention on human rights.
A procedure is set out in paragraph 353 of the immigration rules for dealing with such cases, which broadly results in three possible outcomes for the submissions: outright rejection; rejection, but there is a fresh right of appeal against the decision; or acceptance, and the person is granted leave to remain in the UK. Only about 15% of cases are granted leave to remain. Most are found to be without merit and often merely repeat matters already considered and rejected by the immigration judge who dealt with the asylum appeal.
Under existing arrangements, section 4(2) of the Immigration and Asylum Act 1999 is used to support persons who have made further submissions and who require support if they would otherwise be destitute while the submissions are under consideration. Section 4 is to be repealed by the Bill, but we consider it appropriate to retain a mechanism to support those who have lodged submissions, and the Bill does so by amending section 95 of the 1999 Act in order to provide an avenue of support under that measure, subject to the conditions that I will describe.
The system would be wholly unmanageable if a failed asylum seeker were immediately able to access support solely by lodging further submissions and, if the submissions were to be rejected, to continue to receive that support for a “grace period”—21 days for a single person—before that support is stopped. That would be the impact of the amendments.
To illustrate my point, on day one, the failed asylum seeker might lodge the further submissions and be eligible for support. Then, even if the submissions were rejected on day two, they would be entitled to support for at least another 21 days—longer if children were in the household, up to 28 days—during which time they would be able to lodge fresh submissions and so continue the cycle. Therefore, under schedule 6 to the Bill, the arrangements will not work in that way.
Instead, the person will be eligible for support only if the submissions have remained outstanding for a period set out in regulations. We have not made a final decision on how long that period will be, but we expect it to be five working days in most cases, although there may be issues of vulnerability. The shadow Minister, the hon. and learned Member for Holborn and St Pancras, has set out some of the policy framework that will inform that. In effect, the position will remain largely unchanged from current arrangements.
Once submissions are lodged, the person may seek support under section 4(2) of the 1999 Act, but that is normally provided only if a decision on the further submissions and accompanying support application is not made within five working days. Special consideration will continue to be given to cases in which the person is clearly in a vulnerable position, for example because of a disability or in the case of a pregnant woman. In such cases, support is usually granted if a decision on the further submissions is not made within two working days. We expect to continue those special provisions under the new arrangements and will reflect them in the regulations.
Gavin Newlands
Absolutely. I agree with the hon. Gentleman. I think I referenced Lord Green’s evidence on children in an earlier sitting.
If the clause is left unamended, it will see us punishing children for their parents’ actions. If pursuing the goal of removing all forms of support is intended to cut the costs to the Government, the clause also fails on that account. We have received countless pieces of evidence suggesting that removing all support will see us simply pass the costs from central to local government. That was articulated during an evidence session by Stephen Gabriel, who said:
“if the Home Office stops supporting those families, that will potentially have a negative impact on the local authority. That could be a challenge for the local authority.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 71, Q162.]
Liberty has further made the point that, despite assurances from the Government, it seems inevitable that
“some costs will be transferred to local authorities because the…removal of accommodation and support, from children in particular, risks violations of the Article 3 prohibition on inhuman and degrading treatment.”
Given all that, and given the strength of feeling evidenced in a number of contributions to the debate, I hope Government Members will give the amendment serious consideration.
James Brokenshire
We have obviously had a wide-ranging debate on the amendments. In many respects, it has repeated some of the in-principle issues Opposition Members highlighted in respect of schedule 6. I therefore do not intend to spend a huge amount of time repeating the arguments we debated last week.
Amendment 226 seeks, in essence, to maintain the pre-existing arrangements. Under the current provisions in the Immigration and Asylum Act 1999, failed asylum seeker families continue to receive Home Office support as though their asylum claim and any appeal had not failed, with the onus on the Home Office to demonstrate non-compliance with return arrangements before support can be ceased. The amendment would maintain that position. We believe that is wrong in principle and would send entirely the wrong message to those who do not require our protection. It would also continue to undermine public confidence in the asylum system.
The current position needs to change. Failed asylum seekers are illegal migrants. Our focus should be on supporting those who have not yet had a decision on their asylum claim and who may need our protection, rather than on those who the courts have agreed do not need our protection and should leave the UK. Instead of indefinitely supporting failed asylum seekers because they have children, we need a better basis of incentives and possible sanctions. We, together with local authorities, can then work with these families in a process that secures their departure from the UK, and schedule 6 to the Bill will deliver that.
Home Office support will, of course, remain available if there is a genuine obstacle to the family leaving the UK. Opposition Members sought again to highlight the 2005 pilot, but I have already indicated the differences between these arrangements and the pre-existing arrangements. We have reflected carefully on those experiences and taken account of them, in order to provide a different approach. If failed asylum seekers decide to remain here unlawfully rather than leaving voluntarily, they should not automatically continue to receive Home Office support simply because they have made a failed asylum claim. We need a better basis of incentives, and we believe the Bill will deliver that.
Paul Blomfield
I am listening carefully to the Minister’s response to points made by Opposition Members. Does he accept there is a real risk that this measure will leave some families in destitution and therefore open to the sort of exploitation that part 1 of the Bill seeks to avoid?
James Brokenshire
That is why the arrangements have been framed as part of a continuing process in respect of those whose asylum claims have not been upheld by the courts, in terms of the notification periods and further safeguards that exist.
The hon. Member for South Shields has highlighted on a number of occasions the position of local authorities and whether this measure will transfer costs and obligations to them. I have responded to that previously. We propose that Home Office support will continue to be available to a failed asylum seeker with a dependent child or children while there remains a legal obstacle to their departure from the UK—for example, outstanding further submissions, documentation not being available or practical obstacles such as medical reasons. Human rights issues should not be engaged by the cessation of Home Office support, as any risk of destitution could be avoided by the family’s departure from the UK with assistance with the required travel costs or by their compliance with the conditions of Home Office support—for example, in applying for any travel documents required to facilitate their departure. The package of measures will be subject to the new burdens assessment process in the usual way. I say to the hon. Lady that a system has been put in place to ensure that issues related to the transfer of burdens are properly factored in and addressed.
Schedule 3 to the Nationality, Immigration and Asylum Act 2002 provides for a process whereby local authorities assess human rights-related issues such as destitution. That will continue to apply. Equally, our duties in respect of children under section 55 of the Borders, Citizenship and Immigration Act 2009 will still apply. We are discussing with local authorities the practical implementation of streamlining some of the processes in schedule 6 to those in schedule 3 to the 2002 Act, to ensure that they operate efficiently and effectively. That feeds into the concept of family returns, which I spoke about previously, and the considered fashion in which we are approaching this. This is not come automatic cliff-edge point, as the provisions will apply to those who have a negative asylum decision subsequent to the Bill being in place. Therefore, it forms part of the overall removal strategy that I have previously explained.
Anne McLaughlin
I cannot remember his exact words, but the Minister seemed to say that families are choosing, and refusing, to go back to where they came from, and therefore they cannot get support. Without going into the arguments of whether they can go back, do the children of those parents have any choice? Can the children choose to go back to where their parents came from, or are they at the mercy of decisions made by the adults around them? If the answer is that they are at the mercy of those adult decisions, do we owe them anything?
James Brokenshire
I understand how the hon. Lady seeks to argue her points and I know how strongly she feels on these issues. If one follows the line of what she has just said, it would be impossible to deport any families who are here illegally. She indicated that because someone had a child, it is not the child’s fault that the family are about to be deported; therefore the family cannot be deported. I respect her position in articulating that, but I cannot agree with it.
Anne McLaughlin
On a point of clarification, I was not saying anything of the sort. I said that while they are here and those children have no input into the decision making, should we support them or punish them as well, because of the decisions of their parents?
James Brokenshire
The hon. Lady says that if parents who are deliberately trying to frustrate the system have children, the state should automatically continue to support them. The point of the measures is that, on the basis of remaining obstacles, support will continue for all of the family in that situation.
That is why we have the family returns process. We have assisted return, where families are actively encouraged and assisted to leave while we put the family returns process in place, which has the humane nature of supporting people to see that they return. Obviously, where there are barriers to removal, support will remain, as I have already indicated.
Simon Hoare (North Dorset) (Con)
We have heard the hon. Member for Glasgow North East, but she has a topsy-turvy way of looking at the issue. Surely, parents have the primary duty of care for their children. The hon. Lady and the amendment seem to suggest that parents can abdicate that responsibility but expect the state to step in to have a greater level of care and concern for their children. That is loco parentis gone bonkers.
James Brokenshire
My hon. Friend makes a clear point on where support should be provided. We do have duties in respect of section 55 of the Borders, Citizenship and Immigration Act 2009. Under section 55, child welfare does not require—if a failed asylum-seeker family decides to remain here unlawfully when they could and should leave the UK—that they should automatically and indefinitely continue to receive support simply because they have made a failed asylum claim. That is the nub of the argument. I appreciate that there is a fundamental difference in the Committee. I note that hon. Members are seeking to catch my eye to give way. That is the nub of the argument and it seems there is a difference on that principle.
Anne McLaughlin
The Minister is talking about people who have barriers to returning being exception, but regardless of the arguments about whether the adult is able to make that decision, the barrier to the child returning may be the parent’s decision. In that case the child will have barriers, but will not be an exception because the parents are not seen to have barriers.
On abdicating responsibility, I thought that if a parent was deemed to do that—I am not arguing that asylum-seeking parents are doing that—the state was supposed to take over. I thought that was what the legislation that the hon. Member for South Shields mentioned was about. Is there a duty on the state to take over if responsibility has been abdicated?
James Brokenshire
I think the hon. Lady is confusing certain issues. As I have already indicated, certain obligations exist under schedule 3 and also under section 17 of the Children Act 1989. We are discussing in detail with local authorities the interrelationship between such backstop support powers and how the different regimes fit together. That needs to be done in the joined-up fashion of understanding that if families are here unlawfully, they could and should leave and there needs to be encouragement through the returns process to ensure that they do. It is in that considered way that we propose the provisions, although hon. Members may disagree with our approach. That is, however, the stance that we seek to take, given the factors I identified and the interrelationship with local authorities I indicated.
Let me turn to amendment 227, which seeks to set the level of the cash allowances given to asylum seekers at 60% of the income support rate for people aged over 25. That would raise the amount provided from £36.95 to £43.86 a week.
The cash allowance is only one element of the support package provided to ensure that asylum seekers are not left destitute. That package needs to be seen as a whole. Accommodation is provided free and comes fully furnished and equipped with bed linen, towels and kitchen utensils. Utilities such as gas, electricity and water are also provided free. Recipients receive free healthcare and schooling for their children. The cost of travel to appointments to pursue an asylum claim—to attend asylum interviews, appeal hearings and meet legal advisers, for example—is also provided separately.
Keir Starmer
Will the Minister confirm to members of the Committee who seek comfort from the fact that we have just discussed provisions that apply to asylum seekers who have exhausted their process, that we are now discussing something that applies to all asylum seekers, including, for example, a Syrian who has got to this country in the last few months by whatever means? I take into account what he said about accommodation, but in relation to the comments of the hon. Member for Glasgow North East, the rates in the package are £1.23 a week for toiletries and 69p for healthcare. Given the particular examples that she gave, which made people feel uncomfortable, perhaps Members would like to go to Boots this afternoon and see what they could get for that.
James Brokenshire
The hon. and learned Gentleman wrapped up two points. He said that the package would apply to Syrians applying for resettlement here, but that is a separate regime. [Interruption.] He used the pejorative term of Syrians, so it is important to understand the support provided through resettlement when refugee status is accepted, because then there would be entitlement to mainstream benefits. We are talking about the mechanism for those of all nationalities who have claimed asylum in the country but whose claims have not yet been determined.
Keir Starmer
The Minister will know that I deliberately did not give that example. I said a Syrian who had arrived in this country from Europe or somewhere—not on the package. Any Syrian who is now in Europe and arrives in this country not under the resettlement regime will come on to this regime. That is the example I was giving.
James Brokenshire
I am grateful to the hon. and learned Gentleman for that clarification, because he had not given that clarity initially and it is important to understand the different regimes that operate for those with refugee status and for someone who has come here and claimed asylum. It is helpful that he explained his intent. That is why I said what I did about how asylum support rates are intended to operate for all nationalities of people claiming asylum in this country.
I come on to the second point about the amount of cash, having already indicated to the Committee all the other support mechanisms provided to those seeking asylum fairly and appropriately. The cash amount is provided with reference to a specific legal test set out in section 95 of the Immigration and Asylum Act 1999. The allowance is there to cover what is described as “essential living needs”.
The Home Office reviews the level of the cash allowance each year but the way that review is conducted changed in 2014. Following a judicial review, the Home Office put in place a new assessment methodology designed to give full effect to the findings of and the valuable guidance given by the court. It is important to understand how the rates are set in the context of what the court said and the guidance that it provided. First, a careful assessment is made to identify all needs that are essential and not covered through some other part of the package.
The needs identified in this way are: sufficient food to eat healthily, adequate clothing, provision to cover toiletries, household cleaning items and non-prescription medicines, sufficient provision for travel and communications for everyday purposes and to maintain interpersonal relationships and a minimum level of participation in social, cultural and interpersonal relationships. That is a term of art and an essential need identified by the court. Having identified all these particular needs, an assessment is made of how much money is required to meet each of them. This is done through a mixture of market research into the cost of the particular items and analysis of Office for National Statistics data about expenditure on the items by people in the lowest 10% income group of the UK population. This approach resulted in the allowance for a single asylum seeker being set at £36.62 per week in 2014, rising to £36.95 per week from April 2015. In 2015 we also decided that providing £36.95 for every person in the household—in other words for the asylum seeker and each dependant—would be sufficient to cover the essential living needs of all family groups. This is because of the economies of scale available to large households and is an approach taken by other European countries as well.
I recognise that many organisations representing asylum seekers and children disagree with the changes, but none of these groups has provided detailed evidence to show that the findings of the review are wrong.
Paul Blomfield
The Minister referred to ONS data in his justification for the formula that the Home Office uses. He will acknowledge that the Home Office deliberately reduces the sum calculated as essential by the ONS in several key respects, for example for clothing. How does he justify that?
James Brokenshire
I am looking at a letter sent out in July at the time of the consideration of the review and there are some adjustments. I am looking at an adjustment in relation to food and non-alcoholic drinks which was set under ONS expenditure data in 2013 but was increased after reasonable adjustment. So there is no mindset of trying to adjust down, but of seeking a fair and appropriate approach in respect of the attributable costs.
Paul Blomfield
The Minister’s point about food is of course right. Clothing goes in the other direction. If we look at all the essential living needs, the ONS data would suggest that a level of £40.47 was appropriate, which the Home Office has downgraded to £36.95. Is that not the case?
James Brokenshire
The hon. Gentleman was seeking to impute that there was a preordained mindset to adjust everything down. I have already given him an example where there has been an adjustment up. It is that fair assessment, subject to reasonable adjustment, based on the twin tests of ONS data and market research data on costs, which produces the figure. I say to him again that concerns have been expressed by various groups representing asylum seekers and children, but none has provided detailed evidence to show that the findings of the review are wrong. We will continue to assess, we will hold a further review of the allowance levels for 2016 and we would welcome detailed evidence and submissions about the level of the allowance. That is the right forum to address any perception that the allowances are not adequate.
We also do not consider that seeking to apply this to a level under income support is appropriate. It is not referencing the essential living needs test. This was debated by the other place on 27 October, when a motion to annul the regulations that implemented the findings of the most recent review was rejected. I recognise that there are differences of view on this but, on this detailed analysis, on some of these specific items, I would welcome further submissions to show whether the evidence that has been presented to us needs further reflection. Obviously we would consider that in setting the levels for 2016, but I urge that the amendment be withdrawn.
Keir Starmer
The two amendments go to the heart of one of the most important provisions. On the withdrawal of support from certain categories, I will not rehearse the powerful argument showing that all the evidence says that this will not achieve the desired objective and in all likelihood will push people into destitution and exploitation. That is why it is such a fundamental issue.
A lot has been said already about the daily rates. It is true that the food and non-alcoholic drink rate is up from the ONS data to £24.96. That is just over £3.50 per day for the very many weeks and months that it takes for a decision to be made about someone who is seeking asylum and may have come from any number of countries, fleeing persecution. All the other rates that have been adjusted, have been adjusted down.
Keir Starmer
All the others that have been adjusted have been adjusted down. Some have not been adjusted. I will happily take an intervention if I am wrong about that. Clothing and footwear has gone down from £4.62 to £2.51, and travel from £3.62 to £3. That is 45p or so a day for travel. I do not know in which city people are expected to live for these weeks or months, but travelling for 45p a day is not an easy task. There are not many bus fares that can be bought for that even in one direction. On those adjustments down, the question that my hon. Friend the Member for Sheffield Central put was not whether this was a preordained decision but whether that downward trend could be justified. That question was not answered.
The amendments go to the heart of this part of the Bill and I will press them to a vote.
Question put, That the amendment be made.
Sarah Champion
I would like to build on my hon. and learned Friend’s well made argument. I thank the Regional Asylum Activism Project for Yorkshire and Humberside for their help.
Despite often arriving in the UK with a host of skills and experiences gained in their country of origin, hardly any asylum seekers are allowed to work while their claim is being assessed by the Home Office. Only asylum seekers who have waited over 12 months for an initial decision on their case are eligible to apply for permission to work, but even those granted permission to work are not allowed to work in a self-employed capacity, set up a business, or take up a job that is not included on the highly specialised shortage occupation list. The current restrictions on accessing employment for people seeking refugee protection stops many highly skilled, experienced and educated individuals from contributing to the UK’s economy and society. For example, refugees started Marks & Spencer and brought us fish and chips and the Mini. People seeking refugee protection today will include, among many others, entrepreneurs, doctors, nurses, engineers, teachers, scientists and solicitors. Fundamentally, allowing asylum seekers to work will make economic, social and political sense.
First, on economics, if asylum seekers were granted permission to work, they would be able to contribute to the UK economy immediately through income tax, adding directly to the UK’s coffers. Equally, amounts spent on asylum support would decline, resulting in a net benefit to the economy. That has been recognised by the European Commission, which states:
“Mandatory unemployment… imposes costs on the State through the payment of additional social welfare payments.”
Government research has also recognised that delayed entry to the labour market, loss of skills and confidence, and difficulty getting qualifications recognised in this country can cause problems even when status is granted, leading to high levels of unemployment and underemployment. Allowing people to work while waiting for their asylum claim decision will not only allow them to start rebuilding their lives free from persecution, but allow them to start the journey towards meaningful employment as soon as possible.
Secondly, the indirect costs of enforced poverty are significant. Without the right to work, people in the asylum system are forced to rely on Government support to survive, but with asylum support rates set at £5.28 a day—barely 50% of the income support equivalent—many in the asylum system are forced into institutionalised poverty. As I and other hon. Members have said, extended periods living in poverty have huge impacts on physical and mental health and self-esteem. For some, a reliance on Government support is considered shameful, as they are unable to support themselves and their families; that concern has been raised by the cross-party parliamentary inquiry into asylum support for children and young people. Research from the University of Leeds and the University of Salford found that the experience of poverty was a key factor in pushing many individuals in the asylum process into exploitative and precarious working conditions. I suggest that providing those in the asylum process with the legal permission to work is in line with the Government’s commitment to ending modern day slavery.
Thirdly, the rationale for the current policy does not hold up. The reasons for restricting permission to work for asylum seekers hinge on the idea that it will act as pull factor, but it is important to remember the conclusions of research the Home Office commissioned in 2002:
“There was very little evidence that the sample respondents had a detailed knowledge of: UK immigration or asylum procedures; entitlements to benefits in the UK; or the availability of work in the UK.”
That was confirmed by a review of the 19 main recipient countries for asylum applications in the OECD in 2011, which concluded that policies that relate to the welfare of asylum seekers did not impact on the number of applications made in destination countries. All but one of the countries that granted permission to work to people seeking asylum received fewer asylum applications than the UK in 2012 and 2013.
A change of policy to allow asylum seekers the permission to work is long overdue. In 2007, the Joint Committee on Human Rights described the denial of the right to work for asylum seekers as part of a “deliberate policy of destitution”, which was breaching human rights. In 2013, the cross-party parliamentary inquiry into asylum support for children and young people called for parents and young people to be given permission to work while their claims were being decided. Thirteen local authorities have passed motions condemning the destitution of people seeking asylum. To date, 71 current Members of this House, of all political persuasions, have signed Still Human Still Here’s declaration on permission to work. They join the Trades Union Congress and a broad coalition of organisations, from Refugee Council to Crisis, Doctors of the World to The Children’s Society, in their call for people seeking refugee protection to be allowed to live in dignity, not destitution.
Allowing asylum seekers permission to work will enable many to support themselves through the asylum process. We should grant permission to work to all asylum seekers if they have been waiting more than six months for an initial decision, up until their protection needs are recognised or a safe route back to their country of origin has been negotiated. For this reason, I urge the Minister to support the amendment.
James Brokenshire
This is clearly a debate that has been going on for some time. I know there are differences of opinion on the time period that should or should not operate for those who have claimed asylum in this country. The amendment would radically change existing permission to work arrangements for asylum seekers, allowing permission to work where an asylum claim is still outstanding after six months instead of 12 months, removing the caveat that any delay must not be of the asylum seeker’s own making and lifting all restrictions on the type of employment available. Those are the three elements that have been advanced by Opposition Members.
The amendment would enable persons to take any employment of their choice, rather than be restricted to those on the shortage occupation list published by the Home office. The arguments made were initially about compliance with some of our EU obligations and what other EU partners are doing—I will come on to that—and then, separately, what those who are working could contribute. Also, some evidence was adduced on whether permission to work is a pull factor. Let me deal with each in turn.
On the issue of the EU, our current position is consistent with our obligations under the EU reception conditions directive, which sets out the minimum benefits and entitlements afforded to asylum seekers while they await a decision on their claim. That is reflected in part 11B of the immigration rules, but we decided not to opt in to the recast reception conditions directive requiring member states to grant automatic access to the labour market for asylum seekers after nine months, regardless of a decision at first instance being taken, because we considered the Commission’s proposal could undermine our asylum system by encouraging unfounded claims from those seeking to use the asylum system as a cover for economic migration.
It is important to understand that asylum claims cover a range of different circumstances and scenarios. Someone might have claimed asylum at their point of arrival, or been smuggled into this country and then claimed asylum. Someone may already be in the UK, having come via a lawful route, and circumstances change in their home country, so they might claim asylum, or they simply seek to stay here and they use an asylum claim as a means of extending their stay in this country. Sadly, that is the reality of some of the asylum claims that we seek to respond to within the system.
The amendment poses a challenge. Should we be taking steps that are more consistent with our EU partners? I think that in the UK it is right that we should form our own decisions, based on our assessment of our asylum system and what we judge is in the best interests of this country, while supporting the processing and the proud tradition that we have had in this country of granting asylum in this country.
On the labour market issues, an argument was advanced in the context of the asylum support budget, but that argument does not take into account the potential to open up the resident labour market in a way that could blur the distinction between economic migration and asylum. I genuinely worry about measures that blur that distinction. People could apply for asylum but not engage with the process, with the deliberate intent of delaying the process so that they can then be granted the benefit of being able to work after the end of the six-month period. We are concerned that this may lead to an increase in asylum applications that would divert valuable resources away from ensuring that those genuinely in need of protection are recognised quickly, enabling them to integrate and begin rebuilding their lives. That is the approach that we have taken in seeking to ensure that the processing of asylum claims is much better than it was when this Government came in.
Paul Blomfield
If that is the case, presumably the amendment presents no risk or significant worry to the Government. Does the Minister accept that the longer somebody is out of the labour market, the more difficult it is for them to integrate—to get back into the labour market, to contribute to society and so on? Is there not an assumption of failure or refusal underlying the Government’s position, when in fact a very large number of asylum applicants are successful and we all share the objective of seeing them successfully integrate into the labour market?
James Brokenshire
The hon. Gentleman makes the point that I was underlining about the need to see that asylum claims are processed as efficiently and effectively as possible. However, I do think that the amendment would blur the lines and might well lead to spurious or inappropriate asylum claims being made, perhaps by people already in this country coming to the end of their stay, whether they came as visitors, students or via other routes. That is a real challenge. The amendment would undermine the integrity of what we all believe in: providing protection to those who are fleeing persecution, ensuring that we have a system that is efficient, effective and focused on making those decisions and seeing that people receive support as recognised refugees at the earliest opportunity. It risks more claims, of whatever character, being made.
We also have to bear in mind the resident labour market. It is argued that if you give an asylum seeker the right to work, you are, in essence, denying a job to someone who is already living in this country lawfully. Because of the implications of that we judge that it is right to have a system that recognises that if there is delay—we judge that 12 months is the right period—people can work, but they should not be seeking to frustrate or delay the system; that test has to be captured as well. It is about shortage skills, those that are needed. That is why the focus is there, otherwise we get into a blurring of issues in relation to economic migration. We must do our utmost to ensure that people in this country who have the skills and the ability are able to access the job market.
Sarah Champion
I hear the Minister’s argument. Does he know—if he does not, perhaps he will write to us—the average length of time that an asylum claim takes? From the casework that I get, it seems to be considerably more than 12 months normally, so does his argument stack up? What is the difference between six months and 12 months if the average is 18 months?
James Brokenshire
I can tell the hon. Lady that 85% of cases are straightforward and we have a service standard of dealing with those within six months. We dealt with a big backlog earlier this year—that is why I make the point about the effort that has gone in. Many people in the asylum processing system will say that asylum processing is probably in as good a place now as it has been in for many years, but of course I look for further improvements; we do not sit back. Equally, it depends on some of the pressures in terms of changes or increases in the numbers of those who are claiming asylum. We are very vigilant in monitoring how we are dealing with this. I can say to the hon. Lady that 85% of cases are straightforward and that our service standard is to deal with those within six months. Obviously, it is difficult to know what proportion of the people in her constituency may be in the situation she describes; it is difficult to draw that parallel. However, I hope that it is helpful at least to set out the approach that we are taking and that balance in terms of how asylum claims are dealt with.
We judge that the current policy strikes the right balance. Asylum seekers are provided with support and accommodation, but if their asylum claims are undetermined for 12 months for reasons outside their control, they can apply for permission to work. We believe that that is a fair and reasonable policy that we should keep. For the reasons that I have outlined, we ask that the amendment be withdrawn.
Keir Starmer
The Minister puts forward a number of good reasons for the decisions to be made within six months and prays in aid the service standard, which is to be supported, but the real question is: how many cases are actually decided within the service standard? We all have examples of where they are not. We know that the number is roughly 3,600. I am sure that the Minister did not welcome the ombudsman’s report published this morning, or at least reported on this morning, about the very high level of complaints upheld by the ombudsman, particularly in relation to immigration decision making. That does not mean that things are not moving in the right direction, but it does mean that very many cases are not decided within the six-month period.
James Brokenshire
The point that I was making about the service standard for dealing with the 85% of cases that are straightforward was that that has been met. I do not know whether that is helpful to the hon. and learned Gentleman in relation to his point.
Keir Starmer
I am grateful to the Minister for that, but it still leaves outstanding the 3,600 cases in which people have not had their decision made within the six-month period. The Minister says that there is a concern that if there is a change in the current regime to a six-month regime, that may lead to adverse consequences, but as I understand it, that is simply unevidenced. Whatever research has been carried out in this area, it is unevidenced. It is a fear, but it is an unevidenced fear. The reason why I cited the EU provisions was not so much to argue that we should necessarily align ourselves with the EU position and should not take our own position as it was to say that it is much more difficult to make the argument that a six-month regime would operate as a pull factor if other countries are operating that regime at the moment.
James Brokenshire
Will the hon. and learned Gentleman accept that the evidence that has been cited is from prior to the current migration crisis and that many EU countries are reflecting on their support and other mechanisms for providing asylum, precisely because of a number of these factors?
Keir Starmer
I do accept that, although I think that anyone in this Committee would be hard-pressed to say that the migration crisis of this summer was linked in any way, shape or form to whether someone could work after six months or after 12 months.
James Brokenshire
The reason why I intervened on the hon. and learned Gentleman was that his hon. Friend the Member for Rotherham, I think, had alluded to the timing of the reports. The point that I was trying to get across—I will make it briefly in this intervention—was that, sadly, we do see people traffickers, through social media and other means, seeking to set out the position of certain member states and what people are entitled to and, in a very deliberate way, encouraging people to try to come to other European countries.
James Brokenshire
I beg to move amendment 105, in schedule 8, page 107, line 34, leave out sub-paragraphs (ii) and (iii).
This amendment makes minor drafting changes by omitting the unnecessary alterations to the conjunctions in section 25B(3) Immigration Act 1971.
James Brokenshire
Amendments 105 to 112 are technical corrections to the drafting of the Bill. I will provide a brief explanation.
The lead amendment makes minor drafting changes by omitting the unnecessary alterations to the conjunctions in section 25B(3) of the Immigration Act 1971. Amendment 106 makes a minor amendment to correct the reference to which paragraph requires amending. Amendment 107 ensures that immigration officers must seek authorisation from the Secretary of State before exercising the maritime powers in relation to a foreign ship, or a ship registered under the law of a relevant territory, within UK territorial waters adjacent to Northern Ireland. That aligns the provision with the equivalent provisions applicable to UK territorial waters adjacent to England, Wales and Scotland. Amendment 108 removes the superfluous definition of “home state” and has no substantive effect. Amendments 109, 110, 111 and 112 are all minor drafting changes to ensure consistency of language throughout the schedule.
Amendment 105 agreed to.
Amendments made: 106, in schedule 8, page 108, line 9, leave out “28A” and insert “28A(3)”.
This minor amendment substitutes “28A” for “28A(3)” to correct the reference to which paragraph requires amending.
Amendment 107, in schedule 8, page 109, line 26, after “before” insert “an immigration officer,”.—(James Brokenshire.)
This amendment ensures that immigration officers must seek authorisation from the Secretary of State prior to exercising the maritime powers in relation to a foreign ship or a ship registered under the law of a relevant territory, within UK territorial waters adjacent to Northern Ireland. This aligns the provision with the equivalent provisions applicable to UK territorial waters adjacent to England, Wales and Scotland.
Keir Starmer
I beg to move amendment 229, page 109, line 35, in schedule 8, at beginning insert—
‘( ) Hot pursuit can only be commenced when a ship is in United Kingdom waters.”
Probing amendment to provide the Minister with an opportunity to confirm that hot pursuit will only start when the ship is in territorial waters, as required by Article 111 of the UN Convention on the Law of the Sea.
The amendment is a probing one and, following our debate, we might not have to press it to a Division. There are provisions on hot pursuit in article 111 of the UN convention on the law of the sea. We tabled the amendment to seek assurance that the schedule, which is on maritime enforcement, is aligned with that international obligation, providing the Minister with the opportunity to confirm that hot pursuit will start only when a ship is in UK territorial waters. If that is the case, the provisions in the schedule will align with article 111 of the UN convention and the amendment is unnecessary.
James Brokenshire
The right of hot pursuit from territorial waters into international waters has long formed part of UK common law and reflects the provisions in article 111 of the UN convention. The Bill preserves the common law position by virtue of new section 28P(10) of the Immigration Act 1971, inserted by schedule 8. I can therefore confirm that under the maritime powers in the Bill, hot pursuit will commence only when a ship is in territorial or internal waters, as permitted by article 111 of the UN convention. In the light of that assurance, I hope the hon. and learned Gentleman is minded to withdraw the amendment.
Keir Starmer
I am, and beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: 108, in schedule 8, page 111, leave out lines 21 to 24.—(James Brokenshire.)
This amendment removes the superfluous definition of “home state” and has no substantive effect.
Keir Starmer
I will deal with the amendments in the group together, as amendments 237 and 238 would simply apply the provisions of amendment 236 to Scotland and to Northern Ireland. Again, it may be that the Minister’s remarks mean that there is no need to press the amendment.
Our concern is that the powers in the schedule for immigration officers to detain or search those found on boats in UK territorial waters should not be used to push back asylum seekers arriving by boat. As things stand, claims for asylum can be made in UK territorial waters, and if made are dealt with in accordance with the appropriate procedures. There is a wealth of support for that remaining the position. The amendment is probing, and if the Committee is given an assurance on the issue I have raised, I may not need to cite that great wealth of support.
James Brokenshire
I will give a brief response to the hon. and learned Gentleman’s probing amendment. The powers in the Bill do not permit officers to turn vessels back. Under the power, vessels may be diverted only to a port in the UK. Upon arrival in the UK an individual wishing to claim asylum may do so and will be processed in the ordinary way. As is the case for all persons arriving in the UK, they will be subject to an immigration examination under the Immigration Act once they have arrived on land, and may also be detained under relevant provisions pending an immigration decision. If they are assessed as being an illegal entrant or attempted illegal entrant, they will be processed under paragraph 9 of schedule 2 to the 1971 Act, and removed accordingly.
Keir Starmer
I am grateful to the Minister for that assurance. What he has just said will appear on the record of the proceedings in Committee. In those circumstances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Immigration Bill (Twelfth sitting)
James Brokenshire Excerpts(8 years, 6 months ago)
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The Solicitor General
I hope I can deal with clause 33 as expeditiously as possible. As I mentioned earlier, the 2014 Act reformed rights of appeal and refocused the appellate system on appeals against decisions that affect protection and human rights claims. Before the changes made by the 2014 Act, there was a right of appeal where leave to enter the United Kingdom had been refused. Paragraph 2A(9) of schedule 2 to the 1971 Act provided a right of appeal where a person who had been granted entry clearance prior to their arrival had had that clearance cancelled on arrival at the UK border. It did that by providing that such cancellation decisions equated to refusals of leave to enter—in other words, it brought them within the definition of section 3D of the 1971 Act.
The changes made to appeal rights by the 2014 Act mean that there is no longer a right of appeal against the decision to refuse leave to enter, so paragraph 2A(9) no longer serves any purpose. For the same reasons I outlined earlier, it is right to remove it from the statute book to avoid unnecessary confusion. There is a saving provision in place to preserve the appeal rights of persons with a pending appeal against the cancellation of entry clearance under the previous appeals regime. Transitional provisions are in place so that there is no undue prejudice to individuals whose cases are currently in the system. For those reasons, I commend the clause to the Committee.
Question put and agreed to.
Clause 33 accordingly ordered to stand part of the Bill.
Clause 34
Support for certain categories of migrant
Question proposed, That the clause stand part of the Bill.
The Minister for Immigration (James Brokenshire)
We now move to a new part of the Bill, part 5, which deals with support for certain categories of migrant. Some detailed amendments have been tabled to schedule 6, and clause 34 is almost like a bookmarker to insert schedule 6 into the Bill’s substantive provisions. It might help the Committee in its consideration of those amendments when we debate schedule 6 if I set out the Government’s overall intentions in introducing the measures and explain how they are intended to operate.
The starting point should be the basic policy that we are seeking to advance. We say that it is not appropriate for public money to be used to support illegal migrants, including those whose asylum claims have been found to be without merit, who can leave the UK and should do so. That is the starting point for understanding how schedule 6 will apply. It will restrict the availability of such support, consistent with our international and human rights obligations, and will remove incentives for migrants to remain in the UK when they have no lawful basis for doing so—I stress the latter point. In doing so, the Bill addresses long-standing issues with the system of asylum support.
James Brokenshire
If I may, I will finish this point and then give way.
The system that Parliament legislated for in the Immigration and Asylum Act 1999 to discharge our international obligations towards those seeking asylum in the UK is too often used to support those whose asylum claim has failed and who have no lawful basis to remain in the UK. On 31 March this year, we were providing support to an estimated 15,000 failed asylum seekers, their dependants and others. In 2014-15, such support cost an estimated £73 million.
Paul Blomfield
The Minister said a moment ago that the Government’s intention for this measure is to remove the incentives for people to stay in the UK. Does he acknowledge that the Home Office’s pilot, among a wealth of other evidence, demonstrated that there is no indication that this measure will succeed in helping the Government to achieve that policy objective?
James Brokenshire
The hon. Gentleman, in his normal, sage way, has pre-empted me. I intend to address the 2005 pilot directly. I will explain to the Committee why we judge that the arrangements in schedule 6 are different and why they are appropriate. In some ways, we have learned from the provisions that applied under the previous Labour Government.
Let me return to my principal point about providing support for those whose appeal has been analysed by the court and who have, as the lawyers would say, exhausted their appeal rights in relation to asylum and article 8 and have not made further submissions—we will discuss a detailed amendment to schedule 6 that pertains to further submissions. We believe it is wrong in principle to provide support in those cases, because it sends the wrong message to people who do not require our protection and seek to exploit the system. It also undermines public confidence in our asylum system.
Under the current system, failed asylum-seeking families continue to receive Home Office support as though their asylum claim and any appeal had not failed. The onus is on the Home Office to demonstrate non-compliance with return arrangements for support to be ceased. We believe we need a better basis on which to engage with those families, with local authorities and others, and a process that secures more returns. Our judgment is that schedule 6 will support that aim. We should focus on supporting those who have not yet had a decision on their asylum claim and who may need our protection, not on those who the courts have agreed do not need our protection and should leave the UK, subject to certain caveats in relation to proposed new section 95A of the Immigration and Asylum Act 1999, which we will debate in detail.
Schedule 6 makes two key changes to the existing support framework. First, those who have children with them when their asylum claim and any appeal is rejected will no longer be treated as though they are still asylum seekers. They will cease to be eligible for support under section 95 of the 1999 Act. Secondly, section 4 of the 1999 Act will be repealed, and support will be provided to failed asylum seekers and any dependent children only if there is a genuine obstacle that prevents them from leaving the UK. I appreciate that those changes raise important issues, as our public consultation highlighted. We have provided members of the Committee with a copies of our response to the consultation and the policy equality statement on these measures. I look forward to discussing many of those issues when the Committee debates the amendments to schedule 6.
Keir Starmer
The Minister dealt with the issue of cost and said that money ought to be spent on other cases, and he has now moved on to children. A concern was expressed in evidence about the duties under the Children Act 1989. Has there been an assessment of the likely cost overall—not to the Home Office budget but to public funds—of bringing these provisions into effect? In other words, has there been an assessment of how many are likely to go to local authorities and what the cost will be?
James Brokenshire
The hon. and learned Gentleman will have, in his detailed way, seen the impact assessment, which gives the macro impact on cost savings. I would make the point—which I will underline in further comments—about the new burdens analysis that we will conduct with local authorities. I have been clear in all my discussions with local government and other partners that this is not about trying to move a cost from one budget to another.
We will come to the detailed provisions of the separate support under schedule 3 to the Nationality, Immigration and Asylum Act 2002 which local authorities may have a duty to fulfil under their human rights obligations. There is a separate mechanism that can apply and can fall on local authorities in those circumstances. It is precisely the work we are doing with local authorities to ensure an effective join-up between this arrangement and the separate schedule 3 arrangements which would apply to local authorities. I will come back to some of these points when discussing later amendments, because I know that some of the cost issues and minimum support requirements are further explored by them.
We have reflected carefully on what the consultation responses said about the experience of the 2005 pilot of the cessation of support for failed asylum seeker families under schedule 3 to the 2002 Act. We have taken account of that experience in providing, under this Immigration Bill, what we judge is a different approach.
First, under schedule 3 to the 2002 Act, the onus is on the Home Office to show that a family is not co-operating with arrangements for return. To qualify for support under new section 95A of the 1999 Act, as provided for by this Bill, the onus will be on the family to show that there is a genuine obstacle to their departure.
Secondly, the 2005 pilot involved a largely correspondence-based process for terminating support in family cases that had exhausted their rights of appeal in the 11 months prior to the commencement of the pilot, so some of the cases in the study were actually quite old. By contrast, the new approach will involve a managed process of engagement with the family, in tandem with the local authority, following the end of the appeal process, to discuss their situation and the consequences of not leaving the UK in circumstances where they can do so. Rather than this being a sudden change, it is part of a continuing process and dialogue with those families who will be affected.
Hon. Members will no doubt have noted that the transition provisions make it clear that this is about new cases, thus underlining that sense of a transition from appeal rights being exhausted and the cessation of potential support. No doubt we will get into the cooling-off period in moving from that arrangement to the cessation of support. That is something we are still reflecting on, on the basis of the submissions we received during the consultation. It is important to see this in that way: Home Office support will remain available if there is a genuine obstacle to the family leaving the UK.
Thirdly, we think circumstances have changed. It is now generally recognised that the taxpayer should not have to support illegal migrants who could leave the UK. We intend to work closely with partners in local government and elsewhere to achieve that outcome, because this is not simply about changing the law; rather, it is about some of the practical join-ups for local authorities. As I have reflected, some of the other regimes equally apply to local government.
We continue to consult with local government colleagues, in particular on the details of the new arrangements. I am grateful to the Local Government Association, the Association of Directors of Children’s Services, the No Recourse to Public Funds network and other colleagues for their continued engagement with the Home Office on these issues. All are clear that we want to reduce overall costs to the public purse and encourage and enable more migrants, without any lawful basis to remain here, to leave the UK in circumstances when they can do so.
James Brokenshire
My hon. Friend’s point relates to my earlier point about confidence in the asylum system and ensuring that we are using public funds effectively and appropriately. The Committee may differ on that principal point, but I respect that and we will no doubt come to discuss it.
I return to the point that, for those who have had an asylum claim assessed and considered invalid by the court and who have not made further submissions, then unless there are obstacles that mean that they should not return, we say that, as a matter of policy, public funds should not remedy that. The remedy is that those people leave.
Keir Starmer
Will it not cost more if families disappear, as they did under the 2005 pilot, when 16 families dropped off the radar? I do not know whether they were ever picked up again. Does the idea that money can be saved and slipped into the Syrian refugee budget take families disappearing into account?
James Brokenshire
I was certainly not saying that money would transfer in that direct sense. As the hon. and learned Gentleman will know, we seek to provide support through the official development assistance that applies in the first year. That was why I was making a point about overall confidence in the asylum and immigration systems and in the rules being upheld. That is the broader issue.
I underline that we are continuing, with local government colleagues, to look at whether further provisions would assist in reducing costs, perhaps in respect of schedule 3 to the 2002 Act, which controls access to local authority social care for migrants without immigration status. We are listening carefully to what local authorities are telling us about the scope for simplifying and strengthening some provisions. Some of the processes are quite clunky and complicated, such as the separate human rights assessments that local authorities must undertake, so we are having discussions with local government about implementing a clear, streamlined process that still recognises existing human rights obligations. We need to understand that properly and appreciate how the asylum and immigration systems sit alongside each other so that safety nets operate effectively.
On the hon. and learned Gentleman’s point about people disappearing, this process is part of a continuum and is not a sudden arrangement. We will reflect further on the cooling-off period from indications being made and families being reminded of what will happen, which is currently 28 days. Discussions on such issues continue. We want families to be in no doubt. Clarity in the immigration system, in particular around assisted return, as we have debated previously, is really important to help people to make decisions.
Keir Starmer
I am grateful to the Minister for his generosity in giving way. I understand his point about the policy objective and the rules on removal being complied with, but in circumstances when the desired objective is not achieved and when the family does not go and there are children, will the cost to the taxpayer go up or down as a result of the change?
James Brokenshire
The hon. and learned Gentleman is clearly thinking about some of the hypotheticals and the relationship with local government. Our regulatory impact assessment has given us the best assessment based on our analysis of the operation of the scheme in terms of the potential savings. It has therefore taken into account some of those detailed thoughts on whether this represents a transfer of a burden from one place to another. We continue to discuss that with local government, because it concerns the new burdens analysis. I believe that is the point the hon. and learned Gentleman is trying to make: what the new burden on local government might be as a consequence of these changes and how local government might see some issues arising. It is precisely on that detail that we are continuing our engagement with local government, in order to understand that as clearly as possible and to reassure local authorities that this is not about a budgetary transfer.
Keir Starmer
I am grateful to the Minister for allowing me to explore the matter in this iterative way. In order to make that assessment of cost, there must be some analysis of how many families will not leave as a result but will, in fact, stay. It is not possible to work out the cost to local authorities, however streamlined and whatever the discussions, without having in mind an assessment of how many families will not leave and will have to be provided for. What is that number and percentage?
James Brokenshire
Obviously we are looking at schedule 6 provisions and the changes under the new section 95A support mechanism within schedule 6. The regulatory impact assessment sets out our best analysis of the overall savings to the public purse, and it would be invidious for me to try to provide percentage assumption rates.
This is about departures and encouraging people to leave. It is also about section 95A support where there are barriers to removal. That is likely to be where there is no documentation or difficulty in obtaining it to facilitate departure, or medical issues. Let us not forget that, in conducting its duties, the Home Office will have obligations under section 55 of the Borders, Citizenship and Immigration Act 2009 which it will need to factor in when taking decisions.
Mrs Emma Lewell-Buck (South Shields) (Lab)
When referring to the impact assessment, the Minister said the cost was around £32 million. Is that not a drastic underestimation? I do not believe that takes into account the local authorities’ statutory duties under homelessness legislation, the Children Act 1989 or the principles of the Care Act 2014. Will the Minister please clarify?
James Brokenshire
I think the hon. Lady is alluding to some of the points I discussed concerning schedule 3 of the 2002 Act: the Human Rights Act assessments that local authorities need to undertake. We seek to continue our engagement with local authorities about the new burdens assessment.
The published impact assessment will be revisited and republished, if required, in relation to further analysis of the new burdens work. Although we have published our regulatory impact assessment based on the evidence provided at the date of the Bill’s publication, it will continue to be reviewed in the light of further discussions with local authorities.
It is not that our minds are closed on that. Rather, having given the best assessment of the savings that the hon. Lady has identified, we will keep this matter under examination. If the measures led to, or risked leading to, migrants being supported by local authorities when they would previously have been supported by the Home Office, we have made it clear through the consultation that we would wish to discuss and address those impacts and their financial implications with local authorities and the devolved Administrations in accordance with the new burdens doctrine.
Mrs Lewell-Buck
I think what the Minister is saying is that the £32 million is an underestimate.
Mrs Lewell-Buck
I am struggling with this. The Minister says that conversations are going on with local authorities, but should those conversations not have happened before the legislation was put in place? It seems a bit back to front to me.
James Brokenshire
No. As always with legislation, we have to have it in place and, as a result, that sometimes provokes further discussion. We have been running a consultation, which we published earlier this week, and the hon. Lady will find in it the response and the feedback, as well as some of the points that we have said we will reflect on further. That is the right and appropriate way in which to deal with the matter. We judge the provisions to be appropriate to the policy intent that I have outlined, so the clause should stand part of the Bill.
Keir Starmer
The Minister rightly makes the point that if there are rules, they should be complied with, and that there is a public interest in ensuring that rules are complied with. I concur with that. He said that another objective behind the measure is to facilitate removal, according to the rules. That is the objective, but one of the concerns about the clause is that all the evidence suggests that that objective will not be fulfilled.
I will turn first to the 2005 pilot and then address the Minister’s points about what is in the Bill being different. The pilot, under the existing scheme, involved 116 families, and there were two reports or evaluations, one published in 2006 and the other in 2007. It is worth running through some of the numbers, because they show a lot of the causes of concern.
The 2006 evaluation, published by the Refugee Council and Refugee Action, found that of the 116 families, only one left the country as a result of the pilot under section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, while three signed up for voluntary return and another 12 took steps to obtain travel documents. By contrast, 32 families—I think I said 16 earlier—went underground, without support, housing or access to health or welfare services. That was the impact. Nine families were also removed from the pilot because their cases were reviewed as part of the process and it was found that their claims should not have been refused. Many of the families had serious health and mental health problems. The 2006 review therefore found the approach in the pilot to be wholly counterproductive, even for the Government’s own objective.
The Home Office review was published a year or so later, in 2007, and concluded:
“In the form piloted section 9 did not significantly influence behaviour in favour of cooperating with removal—although there was some increase in the number of applications made for travel documents. This suggests that the section 9 provision should not be seen as a universal tool to encourage departure in every case.”
The scheme has been rarely if ever used since, because it was considered a policy failure, but now that failure is to become the norm under the provisions of the Bill. The Minister said that in the Government’s judgment there was such a difference between the new scheme and the one piloted in 2005 that the results of the pilot were unlikely to be repeated. He gave three reasons. First, the onus is now on the applicant and not on the Home Office to prove or disprove, as the case may be, the obstacle to return. I will hear whatever the Minister has to say on that, but I am not sure that that is a reason. It is a difference between the two schemes, but why that difference makes it more likely that people will leave, rather than not leave, as in 2005, he will have to enlighten me about.
Secondly, the old scheme was correspondence-based, but the new one is a managed process involving contemporary decisions. I can see that that makes a difference and it might have some impact, but the results of the pilot were so profoundly claimed by pretty well everyone to be a complete failure that it is hard to see that that difference will be the silver bullet.
James Brokenshire
Let me respond to the points raised in the debate. I want to underline the change in the nature of administration in the immigration system which has taken place. We scrapped the UK Border Agency and we have now established separate commands: UK Visas and Immigration, which processes asylum and other visa claims, Immigration Enforcement, and Border Force.
The proposals I have outlined are about embedding the work with local authorities. We are working more closely with local authority colleagues, drawing on their experience and ours of effective family engagement. In particular, that work will build on our existing family returns process, in which a dedicated family engagement manager works directly with the family. From 1 April to 2 October, the process achieved the return of 377 families. The point I therefore make to the hon. and learned Gentleman—perhaps this is why he did not grasp my third point, on the public policy objective—is about the alignment between activity in local and central Government, with that shared endeavour.
In many ways, that takes us back to the point made by the hon. Member for South Shields about these measures simply passing the cost of supporting destitute failed asylum seekers and their families on to local authorities. The proposals have been carefully framed to avoid that. The Home Office has consulted local authorities on the proposals and will continue to do so. There is no general obligation on local authorities to accommodate illegal migrants who intentionally make themselves destitute by refusing to leave the UK when it is clear that they can. None the less, we are considering whether it might be necessary or helpful to clarify that, perhaps in schedule 3 to the Nationality, Immigration and Asylum Act 2002.
Schedule 3 to the 2002 Act provides that, across the UK, a range of local authority-administered welfare provisions are generally unavailable to failed asylum seekers and their families who remain in the UK unlawfully. It enables such support to be provided where necessary to avoid a breach of a person’s human rights, but such a breach will not generally arise if the person or family can leave the UK. We are working with local government on precisely that interface and whether further clarification may be helpful.
Let me provide further amplification of what I have said about the impact assessment. It currently assumes that 10% to 20% of individuals who lose Home Office support under schedule 6 may move on to local authority support, pending the outcome of a further non-asylum, article 8-based application to the Home Office. We have factored in a figure in relation to that. The figure will be reviewed as part of the “no new burdens” analysis, but as I have said, the legislation has been framed to avoid that. We have considered that as part of the impact assessment. Although the hon. Lady suggested the figure may be an underestimate, our judgment is that we have undertaken the best assessment and have carefully factored in some of those issues.
Keir Starmer
I think the Minister may be moving on from the question of what impacts on the minds of individuals and their families. In the end, whether the Government have aligned or realigned with local authorities or are working well with them is not the central question. The central question is: what operates on the minds of these individuals that improves the chances they will leave in circumstances where, in the past, they have not?
As I understand it, the 2005 pilot was a failure. The family returns policy, by contrast, is thought to have been successful, but that scheme runs under the current support regime. Rather than introducing an element that has failed in the past, would it not be far better to simply put the focus on improving the family returns process—in other words, to focus on what persuades people to go? We have a scheme that seems to be working pretty well, so we should focus on that and make it work even better. How does taking away support help to improve the scheme running at the moment?
James Brokenshire
I have two points for the hon. and learned Gentleman. The first comes back to my point about administration and public policy and aligning local and central Government to give families a consistent and clear message about the likely outcomes. This scheme will start before the cessation of support, and we have underlined that. A clear message is important in order to ensure that families understand what is likely to happen to them, and consistency is being provided by both the Home Office and local government.
Secondly, the hon. and learned Gentleman rightly touched on issues with assisted voluntary return and on family returns. This is about both elements combined. Assisted voluntary return for families is a scheme for families comprising a maximum of two adult parents and at least one child. Families who leave the UK under that scheme qualify for support in the form of advice and financial assistance both pre and post-departure, help with travel arrangements, medical assistance and support following arrival in the country of return.
From January, the assisted voluntary return programme will be administered directly by the Home Office, which we judge will enable us to work closely with local authorities and other partners to deploy the scheme more flexibly. In particular, we will be able to ensure that the scheme is targeted at and promoted effectively for newly appeal rights-exhausted families as part of a focused engagement with them about the available options and the consequences of not accepting the help and advice available. Those factors, together, respond to the hon. and learned Gentleman’s point about what is likely to change behaviour, and we judge that they are the right way forward to meet the underlying policy objective.
Question put, That the clause stand part of the Bill.
Mrs Lewell-Buck
As always, it is a pleasure to serve under your chairmanship, Mr Owen. I will speak briefly to amendment 222, which would grant a right of appeal to those who are refused support by the Home Office, or whose support is discontinued. The right to appeal is important both for the individual concerned and because of the difficulties that the withdrawal of support for failed asylum seekers will create for local authorities, about which hon. Friends and I have already spoken.
It is necessary to set out the effect of clause 34 and schedule 6, to underline exactly why it is vital to have a right of appeal. The schedule as it stands will inflict destitution on families with children. Whereas in the past the Secretary of State could provide accommodation and support to help families survive, the new mechanism will impose a burden of proof on asylum seekers. They will need to show that they are destitute and that there is a genuine obstacle preventing them from leaving the country.
James Brokenshire
The hon. Lady has just said that the schedule will have an impact on asylum seekers; it will not. The mechanism in it relates to those whose asylum applications have been determined and have been found to have no grounds. I make that distinction because I want to underline that support is there for those who are having their asylum claims assessed.
Mrs Lewell-Buck
I thank the Minister and apologise for my semantics.
We do not know what the “genuine obstacle” that must be preventing people from leaving the country means, because it has yet to be defined in regulations. We are potentially talking about denying support to extremely vulnerable families, so the House should be able to discuss and vote on that in primary legislation. My hon. Friend the Member for Rotherham made that point well in our evidence sessions. That definition will effectively define the scope of support given to people, and it could leave families homeless and destitute. We should be debating that definition now. It is not something to be nodded through the House at the whim of the Secretary of State.
James Brokenshire
I will respond to each of the points made by Labour Members. The points made by the hon. Member for Sheffield Central undermine the appropriateness of the various measures in the Bill to confront illegal working, including the extension of the right to rent scheme to ensure against abuses. We are joining up enforcement against rogue landlords and those who are abusing their position in that way.
Furthermore, the immigration system in operation in 2008 was in a poor condition under the previous Labour Government. It was in need of significant change and reform to get it to do the job in hand. That is why I emphasised the coalition Government proceeding to scrap the old UK Border Agency and putting in a different form of administration, which we judge to be improving the system, rather than making it worse.
I will also respond to some of the statistics proffered in support of change, because that might paint a slightly different characterisation from the one we have heard thus far.
James Brokenshire
First, I will give way to the hon. Gentleman, who was trying to catch my eye.
Paul Blomfield
Indeed I was trying to catch the Minister’s eye. I think he would recognise—as I hope he will now—that the comments made by the now Secretary of State for Work and Pensions were not related to the particular forms of administration or organisation at the time. They were made about the principle of pushing people into destitution in order to create an environment that might encourage them to leave, which was one of the objectives that the Minister present said were behind his policy.
James Brokenshire
What I have said is behind the policy is a question of a firm and clear approach on the options and on the process that I outlined in the preceding debate.
I am sorry if the hon. Member for South Shields thought that I was trying to be pedantic in some way; I was not. There is an important distinction between those who are claiming asylum but have not had their rights assessed—it is appropriate to support them, but I am sure we will come on to those issues generally—and those who have had their claim assessed by the courts and determined to be not valid, or not grounded. In that context, therefore, if those families and people decide to remain here unlawfully, rather than leaving voluntarily, they should not automatically continue to receive Home Office support simply because they have made a failed asylum claim.
That is the principle. It is not about being “nasty”, as the hon. Member for Sheffield Central pejoratively sought to characterise things. It is about fairness, confidence and clarity in the system. That is the approach that we are setting out in the Bill and, as I hope he will understand, the approach that I have sought to annunciate in the manner in which I have put forward the proposals.
Paul Blomfield
Specifically on the point about fairness in the system—which we would all agree with—why is fairness assisted by removing the right to appeal?
James Brokenshire
I will come to that. The issue is equally one of fairness to those who play by the rules—those who put in applications, are here lawfully, and have not sought to overstay their visa or put in an asylum claim to try to drag it out in a further attempt to remain in the country. It is fair to those people who have done the right thing that people who do not have that right should leave. We need a better basis of incentives and possible sanctions and, together with local authorities, we need to engage with families in the process to secure more returns and to underline those clear messages.
Sarah Champion
I genuinely do not think that any of my colleagues are disagreeing that we want a strong, robust system. We are trying to argue that, looking at the number of appeals decisions that are overturned, the system is not strong and robust. We want a fair system too, but there are people falling through the net, who then get a fair outcome on appeal. To lose that right of appeal does not seem to provide that justice that the Minister seeks.
James Brokenshire
Obviously we have existing arrangements under sections 95 and 4 of the Immigration and Asylum Act 1999. We are moving towards a different arrangement under proposed new section 95A, which will apply where there is a genuine obstacle to departure. To be clear, that will be defined in regulations. We expect that obstacle to be either the lack of necessary documentation or a medical reason. Of course, the person will need to show that they are making reasonable steps to obtain the relevant documentation. The Bill does not provide a right of appeal against the decision that no such obstacles exist because that should be a straightforward matter of fact for which a statutory right of appeal is not needed.
James Brokenshire
Before I give way to the hon. and learned Gentleman, I want to return to the issue of standards and Home Office decision making. I think the hon. Member for Rotherham said that her figures were from 2011. I point to the report of the previous independent chief inspector of borders and immigration, John Vine. I do not think anyone on the Committee would be backwards in coming forwards to identify weaknesses in the system and to expose matters of concern to him. It is worth highlighting his report of July 2014—a later period than that of some of the statistics that have been cited. He conducted an investigation of the whole system of asylum support. It is a long report, but the “positive findings” section of the executive summary noted:
“We found that the decision to grant or refuse asylum support was reasonable in most of the cases we sampled (193 cases out of the 215 cases—90%). We saw many examples of good practice, including staff taking extra steps to ensure that they made the right decision first time.”
He continued:
“In cases where applicants were refused support, we found that in 92 of 103 cases (89%) the decisions made by Home Office staff were reasonable. This was a good performance. Additionally, we found that of 12 cases where an appeal was lodged, only two (17%) were allowed by the First-Tier Tribunal. This is lower than the overall allowed appeal rate for asylum support refusals or terminations.”
The system has been characterised as not operating well and, in fairness to the Committee, it is important that I put that report on the record.
We always look for improvement, which is why we changed the system. We have separate directorates looking at different aspects so that we can hold to account and have better clarity of focus and attention. I will always challenge the relevant directors general to achieve that sense of continued improvement, but it is important to contextualise.
Keir Starmer
I want to take the Minister back to the question that my hon. Friend the Member for Sheffield Central asked about the fairness of removing the right of appeal. The Minister’s response was that, equally, we have to be fair to those who play by the rules and make their applications properly. What about the failed asylum seeker who establishes a genuine obstacle and takes on the onus? What happens if that is accepted but the assessment of whether he or she needs support—whether he or she is destitute—is wrong? He or she has done all they can and accepted the burden, but the assessment of whether they need support is wrong. The Red Cross told us that there are a number of cases where that is precisely the situation. The Red Cross often supplies a report, and it is a dead cert winner on appeal. Why is it fair to that person to remove their right to appeal when they will otherwise be destitute?
James Brokenshire
The issues that we are dealing with are specific matters of fact, and it remains open to the individual concerned to draw their circumstances to the Home Office’s attention. I take the hon. and learned Gentleman back to how we intend to operate these arrangements. We are not doing this by correspondence; it is being worked through as part of an overall process towards the removal of that individual. The judgment has effectively been taken, and contact is therefore being maintained with the individual, so it is more of the joined-up approach on which I have already responded. That is why, in our judgment, it is a question of looking at the simple elements and at what will be the barriers to removal.
Simon Hoare
I do not want to add an unnecessarily acid tone to the debate—[Interruption.] I do not necessarily want to do it, but that does not mean that I will stop myself. I hear what Opposition Members are saying about fairness, but was it fair to those who were making applications and appeals, and so on, who discovered post-2010 that the Home Office had shoved all their paperwork down the lift chutes of abandoned offices? The Home Office had let the whole damned business get so out of control and had become so overwhelmed that it decided that putting the paperwork into the “too hard to deal with” tray was the best option.
James Brokenshire
I know this message might not be appreciated by some members of the Committee, some of whom were not here when we experienced some of those practices after coming into government in 2010. I heard, and continue to hear, some extraordinary stories about some of the practices that existed before some of the arrangements that we have now put in place, which is why it is right to focus on some of the administration issues. That is why I referenced the chief inspector’s report. Yes, there is still work to do, and we have been clear on the change and reform that we seek to make to the effective operation of the immigration system. The situation that we picked up was pretty bad. My hon. Friend makes the point clearly and firmly on why some—
James Brokenshire
I appreciate your direction, Mr Owen, but I think that the history has some relevance to how we administer these rules and requirements and some of the evidence that has been adduced to the Committee. I have tried to bring us into the here and now with what these provisions are intended to do and, through reference to the ICI’s report, to give further clarity on the focus attached to this matter and the decision-making processes. I recognise that this debate is primarily about the rights of appeal. In many ways, we have strayed quite widely, but I appreciate that there are strong feelings on this issue. I respect that, and the House should be able to allow for lively and robust debate where there are differences of opinion. The debate has been helpful, I am sure. Obviously it will be a matter for you, Mr Owen, as to whether we have a subsequent schedule 6 stand part debate, given the wider discussions. I understand that there is a point of difference on some of the principles and I respect that difference. Obviously it will ultimately be for the Committee to determine the decision in relation to the amendment.
Keir Starmer
We should all support the measures to improve the decision making. It is good that decisions are improving, and if the success rate is going up in the way suggested in the latest statement, we should put it on the record that we support that; that is a good thing. But is there a target or expectation for right decisions? In other words, is there a target of 90% right or 95% right? What is the threshold? What is the level that the Home Office considers good enough to remove the right of appeal?
James Brokenshire
I think the hon. and learned Gentleman is seeking to frame this in a slightly different way. The figures that I referred to related to the system as was. Obviously we are contemplating changes. The point I have made to the Committee is about the nature of the decisions—the very fact-based approach that in our judgment should be clear as to whether there are those barriers to removal. It is on that basis that we judge the formal right of appeal. That is not to say that the person would not make representations to the Home Office—or, through the regular contact that we would have, that assessment could be made—but it is on that basis that we have formed that judgment.
Paul Blomfield
I would like the Minister to respond to statistics that have been cited. He made a powerful case and cited a report in favour of the effectiveness of the system, but by doing so sought to invalidate the suggestion of a 62% success rate in the appeal system. He will know, I think, that the Asylum Support Appeals Project receives the statistics from asylum support tribunals and analyses them. Does he recognise that the figure cited of 62% was based on that analysis, between September 2014 and August 2015, where, of the 2,067 applications for appeals against a Home Office refusal of asylum support, 44% were allowed by the tribunal and 18% were remitted—sent back—to the Home Office for it to take the decision afresh or withdrawn by the Home Office as it acknowledged its decision making was flawed? That 62% is therefore robust, is it not?
James Brokenshire
No. As I think my hon. and learned Friend the Solicitor General has highlighted, our judgment is that appeal statistics are not a good indicator of the quality of decision making. That is why I referred to the ICI’s report, in which he does the audits of performance. That obviously gives us oversight. Those figures do not, for example, take into account the fact that many appeals are allowed, as my hon. and learned Friend said, or remitted, because the appellant provides the necessary evidence of their eligibility to receive support only at a later stage. It is therefore important to contextualise this properly.
I recognise that there is a fundamental difference of opinion. We can continue the debate in the same manner, but our judgment is that, on the basis of the measure—ultimately, we are debating this particular amendment on appeals—and on the basis of my characterisation of how the system is intended to operate and how the administrative arrangements will function, the amendment is not needed. I therefore ask the hon. and learned Gentleman to withdraw it.
The Chair
Before I call Keir Starmer, the Minister was being helpful and measured when he talked about having a debate on schedule 6. We have a lot of amendments to go through; we might cover a lot more ground before we get to schedule 6. I will make a judgment at that time, so I ask Members to speak to the amendments before us, whether they be Opposition or Government amendment.
James Brokenshire
I beg to move amendment 96, in schedule 6, page 91, line 2, after “(2)” insert “, (5), (6)”.
This is a minor and technical amendment. It is consequential on the repeal of section 4 of the Immigration and Asylum Act 1999. Section 43(5) and (6) of the Immigration, Asylum and Nationality Act 2006 contain provision about tenancies granted to provide accommodation under section 4 of the 1999 Act.
James Brokenshire
I hope to be brief in explaining this group of amendments. Amendments 96 to 99 are all minor and technical amendment relating to the repeal by schedule 6 of section 4 of the Immigration and Asylum Act 1999. Amendments 96 and 99 relate specifically to the repeal of section 43 of the Immigration, Asylum and Nationality Act 2006, which cross-relates to section 4 and tenancies granted to provide accommodation under section 4 powers. Amendment 98 is also linked to the repeal of section 4 of the 1999 Act. Amendment 97 is also a technical and minor provision. The term “claim for asylum” no longer appears in part 6 of the Immigration and Asylum Act 1999, so the same change is needed in respect of section 141 of the 1999 Act.
Amendment 101 relates to persons supported under section 4 of the Immigration and Asylum Act 1999 when the new arrangements under schedule 6 take effect. Those persons will continue to be supported under section 4 by transitional arrangements. Section 4 support currently consists of accommodation and a weekly non-cash allowance to buy food and other essential items. The allowance is provided through an Azure card that can be used at supermarkets to purchase necessary items. There are no current plans to change those arrangements, but amendment 101 gives the flexibility to do so in future, subject to parliamentary approval of changes in regulation. Such a change might, for example, be appropriate if the numbers supported under section 4 decreased to a point at which the costs of administrating the Azure card outweighed the benefits.
That leaves amendments 100 and 102 to 104, which are minor and technical and relate to those who will remain supported under either section 4 or section 95 of the 1999 Act under transitional arrangements. The amendments will ensure that future and current dependants of those persons may be supported under the provisions. That will mean, for example, that a child born to a person already in receipt of support under section 4 or section 95 of the 1999 Act under the transitional arrangements will also be able to be supported under those arrangements.
Amendment 96 agreed to.
Keir Starmer
I beg to move amendment 223, schedule 6, page 91, line 7, at end insert—
‘(2A) Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (withholding and withdrawal of support) is amended as follows.
(a) in paragraph 6(1), after “person” insert “who entered the United Kingdom as an adult”
(b) in paragraph 7, after “person” insert “who entered the United Kingdom as an adult””
To ensure that all care leavers—including young asylum-seekers and migrants who came to the UK as children—are given the support they need while they are in the UK by amending Schedule 3 of the Nationality, Immigration and Asylum Act 2002 so it does not apply to people who initially came to the UK as children. It will not create an automatic right to support but make sure that a young person is not discriminated against on the basis of his or her immigration status.
I can deal with this amendment shortly. The intention is to ensure that all care leavers, including young asylum seekers and migrants who come to the UK as children, are given the support they need while they are in the UK by amending schedule 3 to the Nationality, Immigration and Asylum Act 2002 so that it would not apply to people who initially came to the UK as children. The amendment would not create a right to support but would ensure that a young person was not treated differently on the basis of his or her immigration status.
I will come to the nub of what sits behind the amendment. For adults, support continues under schedule 3 to the 2002 Act until the individual fails to comply with removal directions, whereas support can be withdrawn for young people if they are found to be unlawfully in the UK but have not been served with removal directions. There has been criticism of the impact of schedule 3 by the Joint Committee on Human Rights and the Office of the Children’s Commissioner. The Refugee Children’s Consortium has also expressed concern about it. This is a narrow but important point.
Anne McLaughlin
I am going to speak very slowly and clearly. For many years, this country and other countries have struggled to support children who are leaving the care system. It has been well documented that those children’s life chances are measurably lower than those who do not go through the care system. Of course, various Governments have taken different measures to address that issue over time. When it comes to asylum seekers, however, we have a situation where children who are even more vulnerable find themselves destitute and without proper legal support when their appeal rights are exhausted, despite growing evidence that approximately 3,000 unaccompanied children come to the UK each year. This is another example of immigration legislation not keeping pace with the legislation protecting the rights of children and young people who are in our communities already but are no longer being supported by the Home Office.
We know that destitution forces young people into grave situations, some of which will be made worse by the Bill. Exploitation in all its forms, homelessness and ill health all follow on from the state turning its back on a desperate and isolated young person who has left care. It is worth highlighting an example given by the Children’s Society of a torture survivor from Iran who came to the UK aged 17. His initial claim was rejected and he went without legal representation for his appeal. Once that, too, was rejected, his support from children’s services was cut off and he was made homeless. He lost the support of the counsellor who had been helping him to deal with the trauma of the torture he had suffered. His health deteriorated further as a consequence of sleeping on the streets. I always find it useful to try to put myself in someone else’s shoes, and I think that sleeping on the streets for one night would be enough to finish most of us off. The good news is that he then received support from a charity and a fresh solicitor. His new claim was successful and he was granted leave to remain. His life was on course to be so much worse than I imagine it is now he has that support.
Amendment 223 is a sensible measure that would provide some protection for asylum seekers who have been in the care system and who are, by their very nature, among the most vulnerable in our society. I feel confident and hopeful that the Minister will support it.
James Brokenshire
I thank the hon. Member for Glasgow North East and the hon. and learned Member for Holborn and St Pancras for their comments, which were brief, clear and to the point.
Immigration Bill (Ninth sitting)
James Brokenshire Excerpts(8 years, 6 months ago)
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The Minister for Immigration (James Brokenshire)
I beg to move amendment 69, in clause 13, page 11, line 29, at end insert—
“( ) The notice may be given—
(a) by delivering it to the tenant or tenants,
(b) by leaving it at the premises,
(c) by sending it by post to the tenant or tenants at the address of the premises, or
(d) in any other prescribed manner.”
This amendment clarifies how a landlord may serve a notice terminating the tenancy on the tenant(s). Provision is made to allow for service by electronic means if prescribed in regulations at a future point.
James Brokenshire
Welcome back to the Chair, Mr Owen. Amendment 69 clarifies how a landlord may serve on tenants a notice terminating a tenancy. It provides that the notice may be delivered to the tenant or tenants directly—in other words, given to them by hand—left at the property, sent through the post to the property or delivered in any other prescribed manner. The clarification puts beyond doubt what constitutes effective service of the notice. I am pleased that in its evidence to the Committee Crisis welcomed the amendment as providing greater clarity. It ensures that, in circumstances where the illegal migrants choose to leave a property of their own accord once a Home Office notice has been issued, the landlord is able to use the powers in the Bill to recover his or her property at the end of the 28-day notice period and re-let it to someone with a legal right to occupy it. I note that the amendment has been welcomed outside the Committee.
Keir Starmer (Holborn and St Pancras) (Lab)
Is it envisaged that the regulations that refer to electronic means will provide for notice to be served by email, for example?
James Brokenshire
The reference to possible future prescription in regulations regarding electronic means covers email. The wording is understood as referring to some means of service of documentation, and we give it that emphasis. I was about to say that the amendment future-proofs the provision—I think that the hon. and learned Gentleman took account of that. It enables the Government to introduce new methods of serving notice on tenants—email, for example—should such arrangements for dealing with tenancy agreements become more commonplace.
Amendment 15 ensures that a landlord can engage the powers of eviction in new section 33D only if they have a Home Office notice in respect of all the occupants. In the absence of such a notice a landlord cannot rely on the provisions in that new section.
Amendment 16 changes the definition of “occupier” of a rented property in respect of action taken to evict. New section 33D(7) provides that occupiers shall be taken to be tenants, named occupants on the tenancy agreement and others who the landlord, through reasonable inquiries, comes to know as living at the property. Illegal immigrant tenants may, however, choose not to co-operate with the landlord’s inquiries about other occupants and, indeed, bring in another occupant who is lawfully in the UK to frustrate eviction. Such occupants may then accuse the landlord of unlawful eviction. The amendment provides that a landlord may pursue eviction on the basis of who they know to be occupying the property, including where that knowledge has been established through inquiries with the tenant or tenants.
Amendment 69 agreed to.
Amendment proposed: 87, in clause 13, page 11, line 33, at end insert—
“(6A) A landlord does not commit an offence under s33A of this Act during the period of 28 days specified in subsection 4.”
To protect a landlord/landlady from prosecution for renting to a person without a right to rent during the period for which they are prohibited from evicting the tenant under subsection 33D(4).—(Keir Starmer.)
Question put, That the amendment be made.
The Chair
The question is that clause 13, as amended, stand part of the Bill. Does the Minister wish to say anything? No?
The Chair
The question is that clause 13, as amended, stand part of the Bill. As many of that opinion say Aye. [Hon. Members: “Aye.”] To the contrary No. [Hon. Members: “No.”] The Ayes have it. Sorry—are you saying No?
Keir Starmer
I am concerned about that provision but, in fairness to the Minister, I think there is a relationship between that and the amendment that he moved earlier this morning. I think that was the effect of the amendment he moved, so would he please clarify that—in other words, that the notice applies to all the occupants? If I am right about that, I hope it does not detract from the other points I am making. I am trying to make them powerfully because this is an important point of principle. The Committee needs to know what it is doing if it votes for such a provision, which is an historic first.
James Brokenshire
I note the hon. and learned Gentleman’s contribution. I will come later to the detailed points he has highlighted about rights of appeal and so on.
It might be helpful to set out the basis and background to the provisions. We recognise that the vast majority of landlords are diligent in their responsibilities regarding housing and immigration legislation. With the planned roll-out of the right to rent scheme, we wanted to help them more easily to evict illegal migrants through the mechanism outlined, the Home Office notice.
The hon. Member for Sheffield Central highlighted the technical point about the notice having to specify all occupiers of the premises, and that has been dealt with, as the hon. and learned Member for Holborn and St Pancras, in fairness to him, indicated in his contribution. I hope that is helpful on that narrow point.
Proposed new section 33D of the Immigration Act 2014 would provide a new power for landlords to terminate a residential tenancy agreement if the Secretary of State has issued one or more notices to the landlord naming all occupiers of the property and identifying all occupiers disqualified from renting as a result of their immigration status. To do that, the landlord must give written notice to all the tenants, specifying the date at which the agreement will end, at least 28 days after the written notice has been given. The notice is to be treated as a notice to quit, where such notice would otherwise be required to end a tenancy and is enforceable as if it were an order of the High Court, as the hon. and learned Gentleman said. That allows a landlord to engage High Court enforcement officers to evict occupiers in the event that they do not leave peacefully of their own accord. The minimum 28-day notice period gives an opportunity for illegal migrants to make arrangements to leave the UK. A landlord does not need to obtain a possession order from the county court in order to seek enforcement of the notice.
New section 33E provides for and signposts court eviction routes, which should be used in the case of a mixed household, where some occupiers are disqualified from renting as a result of their immigration status and others are not. That is the distinction that is drawn between the two new sections. To be fair to the hon. Member for Sheffield Central, if there were no mechanism to provide that, there would be further understandable concerns about people who have the right to rent in those circumstances. That is the intent of new section 33E.
The hon. and learned Member for Holborn and St Pancras highlighted what he considers an inappropriate reversal of the law. I would say to him that this is about people who do not have the right to be in the country. I will come on to what happens next and the manner in which the Home Office would exercise its duties. Ultimately, it is a parallel provision to other measures in the Bill to ensure that residential properties that are let are provided to people who have the lawful right to be in the country, rather than those who do not. The mechanism proposed by clause 13 applies where someone has been identified by the Home Office as not having that right. In other words, the mechanism does not allow someone wantonly to assert that; it has to be grounded by the notice from the Home Office.
James Brokenshire
I was going to come on to the hon. and learned Gentleman’s points about legal challenges, which may be helpful. There are two elements to that. If the Home Office notice is incorrect, it can be challenged by judicial review, but if the conditions for eviction are not satisfied, my clear understanding is that injunctive relief may be available in the county court. I refer to the distinction between whether the notice was lawfully issued and whether a landlord simply made that assertion, not on the basis of the notice, to try to rely on the provisions.
I can see two potential lines of challenge, which I think is what the hon. and learned Gentleman was seeking for me to elucidate. There is a right of challenge and the individuals concerned can also contact the Home Office to challenge the notice directly. There are routes available when an incorrect notice has been served, although I am very happy to give way to the hon. and learned Gentleman on whether I have clarified the questions he posed.
Keir Starmer
I am grateful to the Minister for giving way. On the first point, although I accept that the process is similar to the right to rent, in that it is the Secretary of State who makes the decision and serves a notice, the Minister must recognise that there is a fundamental difference between not letting premises to someone in the first place and turning them out on to the street. There is a fundamental difference between those two actions. Turning people out on to the streets who may have been living in the premises for years with their families is fundamentally different from saying that they cannot rent premises from tomorrow or next week or whenever.
James Brokenshire
The hon. and learned Gentleman is right to make the distinction, which is why the decision on whether a notice should be served has to be triggered by the Secretary of State, with all the duties and responsibilities that the Secretary of State holds. It is important to underline that because the Home Office will not invoke the eviction process or serve notices until a full consideration of family circumstances has been undertaken. Families who have initial application claims for international protection or human rights contentions will not fall subject to these proposals until their cases have been finally determined. That includes the conclusion of any appeal and, in most circumstances, any other outstanding legal challenges. Although the families will be given warnings throughout the eviction process that it may be invoked, they will be encouraged to make a case on why these measures are not appropriate to them.
The Home Office will consider the circumstances of each member of the family. Eviction will generally be inappropriate where there are existing medical conditions or specific care needs evident, and eviction may mean that a local authority is placed under a duty to remedy the loss of accommodation. There will also be cases where invoking eviction is considered inappropriate. These will be cases where the family involved is considered to have recognised barriers to returning home. These instances can include no viable route of return to their home country, difficulties in securing travel documents or in ensuring that their home country will accept the family’s return, and medical or health conditions that make it difficult for a family to return home.
The intent of the issuance of the notice is that the Home Office will have gone through that process. It is only at the end of the process of examination that the Home Office would seek to issue a notice to allow the process contemplated in clause 13 to operate. That is the approach the Government will take in the operation of this provision before getting to the point that the hon. and learned Gentleman elucidated.
Keir Starmer
I understand and recognise the considerations that the Home Office will have to give to any particular case, but it will make mistakes. There will be errors. There will be information that was perhaps not before the decision maker that should have been. Everybody understands that position. In an ordinary, sensible system, there would be a simple right of appeal to correct those errors, which in these sorts of cases can range up to about 30%.
What is the justification and the thinking behind going the long route of judicial review at the High Court rather than a much simpler appeal route? I accept the Minister’s point about injunctive relief, but that is neither here nor there. That is where a landlord does not have a proper notice and is not doing what he or she is entitled to do. That was not the position I was aiming at. Why is it necessary, given that there is an automatic right of possession, to remove the court from the process and to go back to self-help in this small group of cases? What is the necessity for that? The landlord goes through the process and gets possession from the court almost automatically, unless it is challenged. What is the justification for the long route—which will be costly—and for removing the court?
James Brokenshire
I go back to the principle of ensuring that when properties are occupied by tenants who have no lawful right to be in this country, there is a speedy process, as part of the removals process, to ensure that those individuals can be evicted. That mechanism is therefore in place as part of the removal process, in order to assist with that removal. That is the important point to understand: that is the group of people that we are talking about. There is also a process in cases where, for example, someone has left a property and the landlord wishes to bring matters to a formal conclusion as well, and notification has been given from the Home Office. The Bill provides a speedy mechanism to allow that.
In respect of the hon. and learned Gentleman’s key point about how this provision will lead to violence, violent eviction will remain an offence under the Criminal Law Act 1977. It is important to recognise that that would remain in place in this context.
Keir Starmer
I see the Solicitor General nodding his head. Is it his proposition that a landlord will not be allowed to use reasonable force to evict a family who will not physically get out of the door? That is not an offence.
James Brokenshire
The hon. and learned Gentleman has already highlighted the avenue that is available to the landlord in terms of relief that is provided by virtue of the order being from the High Court. That mechanism is therefore available to landlords seeking removal if that cannot be achieved by peaceable means. That is why I made the point that the Criminal Law Act 1977 remains in place.
In that respect there is also the issue of children, and I am aware that what the Secretary of State will do when these duties are undertaken has been of concern. We would not give an undertaking that a family with children will never be evicted under any circumstances. As I have already indicated, a family will not be subject to eviction if there are insuperable barriers to their returning to their home country. Families in private rented accommodation are unlikely to be destitute if they are renting in the first place, but at every stage in the discharge of functions relating to the family returns process and when issuing a notice in respect of a child who would be disqualified from renting, regard will be had to the need to safeguard and promote the welfare of children in accordance with the duty in section 55 of the Borders, Citizenship and Immigration Act 2009.
Again, I underline some of the safeguards which we already have within the family returns process. We have a family returns panel that examines the mechanisms and routes that are used to seek a removal of a family with children from the UK. The panel looks at the removal strategy; in essence, as moves are made towards deportation, the panel can and does comment on the removal approach. Equally, there are mechanisms in the context of section 55 that provide safeguards, as well as the practical operational steps that are embodied in the way in which immigration enforcement conducts its duties when removing family groups which, obviously, involve children.
Sarah Champion
I wonder whether the Minister can provide clarity on what would happen to the person or family’s bond, which can be quite a hefty amount of money. For a bad landlord, there is quite an incentive to get people evicted if they then keep the bond.
James Brokenshire
Again, this is not about rogue landlords and bond arrangements. This is about those who have no lawful right to be in this country and it provides a mechanism to create the eviction process. Obviously, contractual provisions in respect of bond arrangements and returns of deposits would remain in place. We are talking about the eviction process itself. I think the hon. Lady is flagging a more general issue of bad practice by rogue landlords, who do not necessarily return bonds. That is a slightly tangential point, but that is not in any way to undermine its significance or importance. There is a need to ensure that landlords fulfil their contractual duties to repay deposits and other moneys due to the tenant at the end of their tenancy.
The Home Office will work closely with individuals who are subject to the notification to facilitate removal prior to the service of the notice, so this measure should not be seen in isolation. The Home Office will not simply issue a notice; it will be part of an overall removals approach. Tenants will have access to Home Office support should they consider a notice has been served in error; it is not simply a judicial review route. We anticipate the individuals would have a route of direct challenge to the Home Office, although judicial review provides a further mechanism through the courts. As I have already indicated, the landlord would be able to evict only by using peaceful means. Force or violence could not be used. Where a landlord is not able to evict peacefully, they will need to seek the help of High Court enforcement officers to carry out the eviction.
We have considered the clause carefully because of all the issues. I hope that having clarified the process that is intended, the remedies that are available, the nature of the provision and the safeguards that are provided, the Committee will be minded to include the clause in the Bill.
The Chair
We have had a lengthy debate and both Front Benches have taken interventions. I shall now put the Question.
Question put, That the clause, as amended, stand part of the Bill.
James Brokenshire
Clause 14 amends the Housing Act 1988 to create a new mandatory ground for a landlord to obtain possession of a property following receipt of notification from the Secretary of State that an occupant is disqualified from renting as a result of their immigration status. The clause works in parallel with clause 13 and enables landlords to regain possession of their properties where some of the occupants are illegal migrants and some are in the UK lawfully with the right to rent. We have debated clause 13. Clause 14 provides slightly different mechanisms: it inserts a new mandatory ground into the 1988 Act, as I have indicated, and contains some ancillary provisions. Rather than delaying the Committee, I will leave my comments there and allow Members to ask questions and raise further points.
Keir Starmer
We debated the clause when we debated the Government amendments and the amendment to make special provision for children. That has been dealt with, so I will say little more than this: if the clause is agreed, it will provide a mandatory ground for eviction in cases involving children, older people, those with mental health issues and so on.
James Brokenshire
I think all I will do in response is amplify some of the points I raised in the previous debate on notices by the Secretary of State and the factors that he or she would take into consideration as part of the removals process. I indicated that medical issues may be a factor that he or she can take into account when determining whether to issue a notice. The clause is part of that process and builds on the debate we have had.
Question put and agreed to.
Clause 14, as amended, accordingly ordered to stand part of the Bill.
Clause 15
Extension to Wales, Scotland and Northern Ireland
Anne McLaughlin (Glasgow North East) (SNP)
I beg to move amendment 78, in clause 15, page 16, line 6, leave out “Scotland”
This amendment would limit the ‘right to rent’ provisions of this Bill so that they do not apply to Scotland.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
I previously discussed briefly how the Bill affects areas of devolved legislation in Scotland and how it, and clause 15 in particular, fit with the UK Government’s implementation—in full, allegedly—of the Smith commission. There is another debate to be had about whether the Smith commission lives up to the vow that was made to the Scottish people. Members will be aware that a vow was made to represent near federalism or home rule within the UK. They will also be aware that most, if not all, definitions of federalism or home rule suggest that all powers except defence and foreign affairs will be devolved to another local level—the Scottish Parliament, in this case. That debate will be had in another time and place, but we should reflect on the manner in which the Bill affects Smith and the passage of the Scotland Bill.
The Smith commission opened up the possibility that the Scottish Parliament will be allowed to develop and design certain immigration powers to cope with the particular and different demands affecting Scotland. When we combine that with the fact that housing is already devolved to Scotland, the uncomfortable truth for the Minister is that the Government are trying to pull a fast one here. Why else would the Minister refuse to meet the Scottish Government Minister for Housing and Welfare, who requested a meeting on this very issue?
Amendments 78 to 82 provide that the right to rent policy would not apply to Scotland. There are a number of additional reasons over housing being devolved as to why the SNP group believes that these amendments are justified. The powers in the previous Scotland Act have just started to be implemented and we are debating further powers in the latest incarnation of the Scotland Bill, including putting the Sewell convention on a statutory footing. However, we also think that the right to rent policy is simply a bad policy that lacks the appropriate evidence base. If it is rushed through it will not only have a significant impact on tenants but affect landlords and letting agencies.
During the evidence session we heard from a range of bodies that have voiced concern about the right to rent policy. A lot of these experts and agencies have already been quoted at length, so I shall not test the Committee’s patience by repeating them ad nauseam. However, it is not only these important UK-wide organisations voicing concern about this policy; as my hon. Friend the Member for Glasgow North East mentioned, the Law Society of Scotland has deep concerns. It is worth reflecting on its contribution:
“In relation to the proposal to empower the Secretary of State to amend or repeal provisions of Acts of the Scottish Parliament, we are concerned that the potential for unlawful discrimination and for human rights breaches have not been fully considered. We consider that consultation with a view to seeking the legislative consent of the Scottish Parliament should be initiated”.
The Scottish Federation of Housing Associations is also calling for the right to rent policy to be repealed, as the checks that are required to be undertaken are causing
“disproportionate and unnecessary stress upon our members’ resources that are already under pressure due to the financial impacts of supporting tenants through welfare reform, and other financial constraints”.
However, organisations are not only voicing concern about the financial costs that are being levelled against landlords as a result of the right to rent policy; they also do not think it is right that they are being asked to perform the duties of an immigration official. The SFHA’s written evidence questioned whether it was appropriate for landlords to be acting as the UK Government’s very own immigration agents. That is a reasonable question, since our landlords and letting agencies do not have the training or the expertise to be able to ascertain someone’s immigration status. These are fundamental concerns that need to be addressed, and the snapshot, rushed and ill-equipped evaluation that the UK Government have hastily put together on the right to rent policy fails to address the points that have been raised.
The SNP would like to see the right to rent policy being scrapped across the whole of the UK, reducing the discrimination that our international friends face regardless of where they might be staying. Nevertheless, we accept that the UK Government have the mandate to roll out this scheme across England. Equally, however, they must be willing to accept that Scotland should be exempt from the right to rent roll-out. The fact that housing is already devolved, combined with the content of the Smith commission, the views and evidence provided by a range of housing bodies, and the general election results in Scotland, create a strong and justifiable argument that amendments 78 to 82 should be accepted by the Government and the right to rent roll-out should not take place in Scotland.
James Brokenshire
At their essence, I suppose that the arguments advanced by the hon. Members for Glasgow North East and for Paisley and Renfrewshire, as well as by the hon. and learned Member for Holborn and St Pancras, are—on the basis of what I have heard—that the provisions contained not only within this Bill but within the preceding Immigration Act about the right to rent are not reserved matters, and are actually devolved matters; that is if I understand the points that have been set out.
The Immigration Act 2014 provided for the right to rent scheme. That scheme is part of a wider set of reforms to immigration control within the United Kingdom. It restricts the access that illegal migrants have to the private rented sector, stopping them from setting down roots and building ties while they are here unlawfully. The scheme also protects the finite housing stock in the UK for our lawful residents, not least our settled and lawfully staying migrant populations. Yet these amendments seek to prevent the application of the new measures set out in the Bill that assist landlords in evicting illegal migrants and that create new offences for the rogue landlords and agents who deliberately and repeatedly rent premises to those who they know or believe to be illegal migrants. These measures provide new levers for us to hold to account the rogue landlords who exploit illegal migrants.
At its fundamental essence, immigration control is a reserved matter. These amendments would lead to different immigration controls being in place across the United Kingdom. That would mean that immigration control could be less effective and it could serve to draw illegal migrants to one part of the United Kingdom, with the corollary that there would be no meaningful sanctions that could be applied against the minority of landlords who choose to act in this way in that part of the United Kingdom.
Therefore, I say directly to the SNP Members that I recognise the political difference between us—they object to the policy and do not like it. That is their view and, as always, I respect the views of all right hon. and hon. Members. However, that is distinct from an issue of whether a matter is reserved or devolved.
For example, the point has been made that these provisions would not be captured by clause 2 of the Scotland Bill, because this is legislation relating to a reserved matter, in relation to which the UK Government have competence, and therefore consent is not required. The point was made that housing is a devolved matter, which I absolutely acknowledge. However, the measures in this Bill and in the preceding Immigration Act are part of a reform to the immigration system and immigration control. These are immigration measures for an immigration purpose, and so are within the powers reserved to the UK Government.
I have to say that it is striking, notable and in some ways surprising that the official Opposition have tabled new clause 12, because it appears to cede a reserved matter. That is quite a fundamental point that we are debating here—the position that the Opposition have taken.
James Brokenshire
I hesitate to intervene after the last intervention. All that I would say to the hon. Lady is that she is wrong; that is the fundamental thing. There is clearly a difference of view between us, but I am certain of the ground on which we stand and the points that I have elucidated about our belief that this is a reserved matter. She is obviously entitled to her particular view, but I would not want to give her an indication of any irritation with her at all. Far from it; she has made her points in a fair and reasonable way.
Anne McLaughlin
I thank the Minister for allowing me to find some common ground with him at last, because I too think that he is wrong. I think that the Scottish Refugee Council, the Law Society of Scotland and the Scottish Government are right, and that he should reconsider the so-called respect agenda between the two Governments. As my hon. Friend the Member for Paisley and Renfrewshire North said, the Minister refused a meeting with the Scottish Government Minister for Housing and Welfare, who has significant concerns not just at a policy level but at an implementation level. She requested a meeting and was refused with a “My people will talk to your people; I don’t have to talk to you” sort of response, although maybe—definitely—not in those words. If there is respect between the two Governments, why would the Minister not just sit down with the Scottish Government Minister to go through things if he is so convinced that he is right? I do not withdraw the amendment.
Question put, That the amendment be made.
James Brokenshire
Clause 15 permits the Secretary of State to make provision that has a similar effect to the residential tenancy provisions in relation to Wales, Scotland and Northern Ireland, where different housing legislation applies. The intent behind these measures is to restrict the access that illegal migrants have to the private rented sector and, as such, they are not within devolved competence, as per the debate we have just had on the amendments. The intention is to extend the residential tenancy provision UK-wide. The clause specifies that regulations made under it may make provision that has a similar effect to any of the residential tenancy provisions in housing legislation in Wales, Scotland and Northern Ireland. The regulations may amend, repeal or revoke any enactment, including enactments contained in legislation passed by the devolved legislatures. They may confer functions on any person. However, they may not confer functions on Scottish or Welsh Ministers or the Northern Ireland Executive.
New housing legislation has been introduced in both Wales and Scotland that may come into force in advance of these provisions. As the application of these provisions will necessitate an amendment to Welsh, Scottish and Northern Irish legislation, there will need to be further liaison before the provisions can be commenced UK-wide. The intention is for the residential tenancy provisions to be brought into force in England first and in Wales, Scotland and Northern Ireland at a later date.
I assure Opposition Members that discussions with Wales, Scotland and Northern Ireland have already begun. We intend to take into consideration the housing Bills that the Scottish and Welsh Governments are progressing through scrutiny, and therefore continued engagement will take place in respect of the implementation of the regulations and the mechanism as set out in clause 15.
Keir Starmer
I do not want to waste the Committee’s time, but want formally to indicate that I do not intend to press new clause 12.
Question put, That the clause stand part of the Bill.
The Solicitor General
I will certainly endeavour to answer the hon. Lady’s queries, but I will deal first with the substance of the amendment. I understand fully the intention behind it, but I view it as unworkable for two reasons. First, the regulations will set out the circumstances in which a vehicle may be released from detention and make provision for how vehicles should be disposed of where conditions governing the release of a vehicle are not met. Without laying regulations, therefore, we will not have the necessary legal powers to conduct a fully functioning pilot. I hope that the hon. and learned Member for Holborn and St Pancras can accept that.
Secondly, there is a point of principle here that I am sure he will understand straight away. A pilot would require a criminal offence to be enforced in certain parts of the United Kingdom and not in others. Such a piecemeal approach is clearly not desirable from a practical point of view given, for example, that vehicles can be driven across a number of regions. I do not know about you, Mr Owen, but the thought of car chases in 1980s American films is coming to my mind, where people cross a state boundary and offences that might have been committed in one state are not enforceable in another.
The Solicitor General
I am sure that the hon. and learned Member for Holborn and St Pancras would not wish us to go down that particular path—it is axiomatic, but it needs to be said. A pilot could therefore create confusion for migrants and complicate matters for the police when enforcing the offence.
As I have said, the chief superintendent, David Snelling, indicated to the Public Bill Committee in his evidence how the offence could work in practice. He explained that the police would first have cause to stop a vehicle and would then, as appropriate, ascertain the circumstances of the driver. If it is found that the driver is here illegally, the detention provisions can apply. The police are well versed in general processes relating to detaining, releasing and disposing of vehicles, so there are no new processes in the clause that might justify a pilot.
I will attempt to deal with the concerns of the hon. Member for Rotherham. The statistics that I mentioned concerned referrals to the Home Office. There is already a high degree of joint working and information sharing, which is proving an effective means for targeting and appropriately identifying people who are here unlawfully. On resources, for example training, the Home Office has been working with the police on developing the proposals and will continue to examine the potential need for further training with police colleagues. However, as I have said, these are not new types of power, so there is no absolutely overwhelming need for a complete start again on training.
I am assured that immigration resources are already in place and, as I said, this is not about a sudden general expansion in our expectation of how the police are going to behave. This is not an encouragement to the police to start randomly stopping people, which would of course have a huge impact on resources. Intelligence-led policing is not only intelligent, it is efficient. For those reasons, I hope that I have answered the genuine concerns that the hon. Lady raised.
Child Abuse Allegations (Police Resources)
James Brokenshire Excerpts(8 years, 6 months ago)
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The Minister for Immigration (James Brokenshire)
I thank the hon. Member for Dulwich and West Norwood (Helen Hayes) for securing this debate and for raising this important matter. I appreciate the way in which she highlighted the work of the Shirley Oaks Survivors Association, which is clearly doing very good work in her constituency. The hon. Member for Streatham (Mr Umunna) has also taken a close interest in that issue. I pay tribute to them for what they are doing, as well as for highlighting the work of Operation Trinity.
I want to echo some of the basic themes of the hon. Lady’s speech. It is important to acknowledge, first and foremost, that no case of child sexual abuse is historical for the victims and survivors of this abhorrent crime. They must live with the consequences of the abuse they have suffered each and every day of their lives. It is absolutely right that the victims and survivors of abuse, wherever or whenever it took place, should feel able to come forward to report abuse to the police and get the support they need. Let me be clear: tackling child sexual abuse is a priority for the Government. We have stated consistently that when an allegation of child sexual abuse is made, whether it has occurred recently or in the past, it should be thoroughly investigated by the police so that the facts can be established.
As Chief Constable Simon Bailey, the national policing lead for child protection and abuse investigations, has said, we are at a watershed moment in facing up to the scale of child sexual abuse. Victims and survivors of abuse are, more than ever, feeling confident to report their experiences. This is encouraging, but also an immense challenge for the police and other agencies.
Mr Umunna
I completely agree with the Minister about the way in which we describe these things. We may refer to it as historical abuse, but the victims and survivors live with it for ever. Obviously many survivors are watching this debate. He is the Minister for Immigration. In his Department, there is also a Minister for policing, crime and criminal justice and victims and a Minister for preventing abuse and exploitation. If survivors wish to correspond with or contact the Department, which Minister would it be most appropriate for them to deal with? Who has the pen on this issue in the Department?
James Brokenshire
The Under-Secretary of State for the Home Department, my hon. Friend the Member for Staffordshire Moorlands (Karen Bradley), is leading the work on exploitation. She is clearly a key person, but she is working alongside the Minister for Policing, Crime and Criminal Justice because there are policing aspects in which he takes a keen interest. Obviously, the Home Secretary is personally engaged in this issue, has committed her time to it and has given it the priority that it has. She is overseeing all this work and providing leadership within the Department. No doubt we will come on to the Goddard inquiry and the need for engagement with that. Victims and others must feel that they can come forward to the inquiry and share their experiences directly. It is important to underline that.
The central issue that the hon. Member for Dulwich and West Norwood raised related to police resources. There is no question but that the police still have the resources to do their important work. As a recent report by Her Majesty’s inspectorate of constabulary reinforced, forces are successfully meeting the challenge of balancing their books while protecting the frontline, delivering reductions in crime and maintaining public satisfaction with the police.
The Government are determined that forces should do everything they can to bring perpetrators of child sexual abuse to justice. Child sexual abuse now has the status of a national threat in the strategic policing requirement. That means that forces are empowered to maximise specialist skills and expertise to prevent offending and investigate allegations. Police forces, police and crime commissioners and, in London, the Mayor’s office for policing and crime must have in place the capabilities they need to protect children from sexual abuse. However, it is not for Ministers or the Home Office to direct forces on how to deploy their officers and staff to meet that requirement.
As the hon. Lady will be aware, the allocation of resources on day-to-day investigations into cases of abuse, including abuse that took place in the past, is an operational matter for the relevant chief officers and police and crime commissioners, who are much better placed to make local assessments of need and risk. It is then for the PCC or the Mayor’s office for policing and crime, in consultation with the chief officer, to take decisions about deployment. It is absolutely right that those decisions are made by those closest to the situation, rather than by central Government.
Of course, police forces should include in their policing and budget plans reasonable contingencies for unexpected events within their areas. If, as happens from time to time, the police face significant or exceptional events, we stand ready to offer support where we can. There is an established process by which police and crime commissioners can apply for special grant funding to help with those costs.
The Government’s commitment to tackling child sexual abuse extends beyond the work of individual forces. More widely, we have made available £1.7 million to fund Operation Hydrant, which is the national policing response that oversees and co-ordinates the handling of multiple non-recent child sexual abuse investigations. Those investigations specifically concern persons of public prominence or offences that have taken place in institutional settings. Operation Hydrant is overseen by the national policing lead, Simon Bailey, and plays a crucial role in co-ordinating information on police forces’ investigations that fall within the scope of its terms of reference.
That is not all. As I said at the beginning of my speech, it is vital that victims and survivors report the abuse that they have suffered, so that it can be investigated and the truth can be established. The Government are determined that no stone shall be left unturned in pursuit of that aim.
Helen Hayes
Would the Minister not accept that the existence of Operation Hydrant, which co-ordinates the response across all police forces, is recognition of the national scale of the challenge, and that it therefore makes sense to resource the response at national level with a separate line in the comprehensive spending review?
James Brokenshire
I was going to go on to highlight the additional £10 million that has been given to the National Crime Agency for the creation of more specialist teams to tackle this type of abuse. The need for such a response is also why the Home Secretary has established an independent statutory inquiry into child sexual abuse. The inquiry will challenge institutions and individuals without fear or favour, and will get to the truth in determining whether state and non-state institutions in England and Wales, including the police, have taken seriously their duty of care to protect children from sexual abuse. Justice Goddard is leading the inquiry’s important work and grasping this once-in-a-generation opportunity to expose what has gone wrong in the past and learn lessons for the future. The inquiry will, where necessary, refer any specific allegations to the police for consideration for criminal investigation.
The hon. Lady highlighted the important work on training and the response that can be expected of police officers, as did the hon. Member for Streatham. The College of Policing and the national policing lead have set the requirement for all forces to train all new and existing police staff, including call handlers, police community support officers, police officers, detectives and specialist investigators, to respond to child sexual abuse. The College of Policing has developed, and will keep under review, a comprehensive training programme to raise the standard of the police response to this crime, including by addressing police behaviours and attitudes, support for victims and the importance of partnership working and information sharing. In addition, the setting up of a new national centre of expertise will help with the understanding of national data and evidence, which will draw out factors causing and affecting child sexual exploitation and the front-line practice and integrated working models that work best.
We are taking immediate action to ensure that the mistakes of the past are never repeated. All chief constables have committed to a national policing child sexual exploitation action plan, which is aimed at raising standards in tackling this type of crime so that the police provide a consistently strong approach to protecting vulnerable young people.
Forces are being supported by Government to ensure that they deliver on that national plan. The national policing lead, Simon Bailey, has put in place regional co-ordinators and analysts, paid for by £1.5 million of Government funding in 2015-16, to ensure that forces are tackling child sexual exploitation properly. Through those co-ordinators and analysts we will build a picture of the threat of child sexual exploitation in each region and map out the detail of the police response to the threat. That will ensure that forces are improving their response to this type of crime in line with the national policing action plan.
I should also highlight Professor Jay’s report on the abuse in Rotherham, which, like other reports, made it clear that some forces have previously failed in their duty to safeguard children and, perhaps most shockingly, failed in how they treated victims of the most terrible abuse. The Government have been consistently clear that that culture of denial within forces must end. That is why, as I described, the College of Policing and the national policing lead have set the requirement for all forces to train all new and existing policing staff to respond to child sexual abuse. The College of Policing will keep that under review, which is important in terms of support to victims, as well as the importance of partnership working, information sharing, and police behaviour.
In response to increasing demand for the police to investigate online child sexual exploitation, the Prime Minister announced that an additional £10 million would be given to the National Crime Agency for the creation of more specialist teams to tackle such threats. We must not forget those at the heart of all this work, whose plight has instigated our determination to drive this action forward: the victims and survivors. We are providing an additional £7 million for services supporting survivors of sexual violence this and last financial year, and £2.15 million of that has already been provided as an uplift in funding for 84 existing rape support centres.
Mr Umunna
Given the trauma that survivors are dealing with and have lived through, does the Minister agree how extraordinary it is that they are carrying out a lot of the work that we would usually expect the police to do? The Shirley Oaks Survivors Association has a huge unit to investigate and collate evidence about what happened there so that people can get redress, and ultimately justice.
James Brokenshire
I congratulate that association on its work. This is about giving people confidence to come forward and about the manner in which that evidence can be collated, but—as I have indicated—we need to do more work. I think there is growing confidence that people can come forward to the police, and I am sure that other organisations, foundations and charities have a role to play, working alongside the police. It is important that people feel able to come forward with a sense that their complaints will be investigated thoroughly and properly, as I have described this afternoon.
The broad range of activity that I have outlined shows that the Government take all allegations of child sexual abuse extremely seriously, no matter where or when it occurs. Again, I thank the hon. Lady for the way that she brought this matter to the House. Clearly, work is taking place in her borough and constituency to raise awareness, give confidence, and underline the fact that people can come forward and have their allegations properly investigated. We will continue the urgent work of overhauling the way that our police, social services and other agencies work together to protect vulnerable children. I thank the hon. Lady for highlighting this matter, and I assure her of the priority that is given to this issue by the Government. We will continue to keep the House updated.
Question put and agreed to,
Immigration Bill (Seventh sitting)
James Brokenshire Excerpts(8 years, 6 months ago)
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The Chair
With this it will be convenient to discuss new clause 5—“Compensation for an illegal working closure notice where order is cancelled/no compliance order is given—
‘(1) Where an illegal working closure notice is issued and—
(a) is subsequently cancelled in accordance with paragraph 3 of Schedule 3 to this Act, or
(b) no illegal working compliance order is made (whether or not an application is made for such an order)
the Secretary of state shall pay compensation to the persons listed in subsection (2).”
(2) The Secretary of State shall pay compensation under subsection (1) to—
(a) the person to whom the notice was issued or, if he is dead, to his personal representatives;
(b) a person who lives on the premises (whether habitually or not);
(c) any person who has an interest in the premises.
(3) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State before the end of the period of two years beginning with the date on which the notice is issued.
(4) But the Secretary of State may direct that an application for compensation made after the end of that period is to be treated as if it had been made within that period if the Secretary of State considers that there are exceptional circumstances which justify doing so.
(5) The question whether there is a right to compensation under this section shall be determined by the Secretary of State.
(6) If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State.
(7) In assessing so much of any compensation payable as is attributable to suffering, harm to reputation or similar damage, the assessor must have regard in particular to—
(a) the conduct of the person to whom the notice was given;
(b) the conduct of the immigration officer.
(8) If, having had regard to any matters falling within subsection (9)(a) or (b), the assessor considers that there are exceptional circumstances which justify doing so, the assessor may determine that the amount of compensation payable is to be a nominal amount only.
(9) The total amount of compensation payable must not exceed the overall compensation limit. That limit is—
(a) £10,000 in a case in which there is no element for loss of earnings;
(b) £50,000 in any other case.
(10) The Secretary of State may by order made by statutory instrument amend subsection (9) so as to vary overall compensation limit.
(11) No order may be made under subsection (9) unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.”—(Keir Starmer.)
To provide for statutory compensation to the person to whom an illegal working closure notice is issued and anyone living on the premises or with an interest in the premises in the event that the order is cancelled or that no application is subsequently made to a court for a compliance order, or such an application is made but the court refuses to grant it.
Brought up, and read the First time.
The Minister for Immigration (James Brokenshire)
I welcome you to the Chair, Mr Owen, for your first time on our line-by-line analysis of the Bill.
Clause 11 gives effect to schedule 2, which sets out the regime for illegal working closure notices and illegal working compliance orders. The clause and schedule provide new powers to deal with businesses that repeatedly flout the law in this area. Their use would be targeted on the most serious cases where attempts to tackle an employer’s use of illegal workers through the established civil penalty scheme or prosecution have not prevented them from continuing to behave illegally.
When immigration officers conduct an enforcement visit under existing powers to an employer’s premises, any illegal workers identified may be arrested and detained, and the employer may be liable for a civil penalty or prosecution for an offence. Despite this, the employer may continue to use illegal workers who are not apprehended at the time of the visit, or recruited subsequently. Furthermore, some businesses dissolve to evade sanctions, reopen in a new name and continue their non-compliance as before. The intention is to use this provision to break the cycle of business behaviour.
The provisions create a new power for immigration officers to close premises for up to 48 hours in certain cases where the employer has previously faced sanctions for employing illegal workers. Unless the closure notice is cancelled, an application must be made to a court for an illegal working compliance order. The compliance order may extend the closure of the premises or otherwise direct the business to perform certain steps to ensure that illegal workers are not employed or used to provide services on behalf of the business operating from the premises.
The provisions follow a similar approach to the power to close premises associated with nuisance or disorder in part 4 of the Anti-social Behaviour, Crime and Policing Act 2014. New clause 5 has not been spoken to formally as yet, so I look forward to listening to the debate and hearing the points that will be made by the hon. and learned Member for Holborn and St Pancras.
The new clause is intended to make specific provision for compensation to be paid to those affected by an illegal working closure notice served under schedule 2. Specifically, it seeks to address the situation where a closure notice has been imposed but cancelled, or where an application for a compliance order is refused by the court. The new clause seeks to establish maximum limits for compensation payable in certain circumstances, the criteria for assessing compensation claims, and time limits for submitting them.
I presume that the new clause is intended to provide additional safeguards and to encourage immigration officers to exercise caution in serving illegal working closure notices, because of the potential compensation consequences if such notices are then cancelled or compliance orders are not obtained from the courts. However, we judge that the clause is unnecessary, albeit that I stand ready to listen to the arguments that will be proffered, because the existing provisions in the Bill concerning compensation already, in our view, strike the right balance between protecting the interests of legitimate owners and occupiers of affected premises and appropriate expenditure of public finances. Nevertheless, I look forward to hearing the further points that might be raised.
A closure notice may be cancelled only when employers can show that they would be excused from paying a civil penalty. In most cases, that will mean that they can show evidence that valid right to work checks are being conducted in relation to all illegal employees. It is currently operational practice that immigration officers will give the employers an opportunity to provide such evidence before taking enforcement action.
For that reason, and since the Bill expressly prevents a notice from being issued when evidence of right to work checks is provided, the Government expect few closure notices to be cancelled in the short period between issue and consideration by the court. That period is a maximum of 24 hours, except when extended to 48 hours by an immigration inspector. Therefore, it is expected that in the majority of cases premises will be closed for much less than 24 hours, so any financial loss should be kept to a minimum.
In relation to compensation cases—in other words, when cases have gone to court—when compliance orders were not made by the courts, it must be emphasised that, under the Bill, courts have discretion about whether to make such an order. There is a range of reasons why such an order is not made. For example, it may be that premises are about to be sold to an innocent third party. A court’s decision to refuse an application does not necessarily mean that immigration officers were wrong to issue a closure notice. Nor does it mean that the owner or occupier of the premises was compliant with illegal working rules. For those reasons, compensation is not automatically available when an application for a compliance order is refused by the courts.
However, in rare cases in which immigration officers make a mistake and it later turns out that illegal workers were not employed at or in connection with the business operating from the premises, paragraph 15 of schedule 2 does not prevent an affected employer, owner or occupier of the premises from applying for compensation. The Bill places responsibility for determining compensation claims on the courts, not the Secretary of State as proposed in the new clause, and it imposes no limits on the level of compensation payable. To make the Secretary of State the decision maker would lead to lengthy and costly satellite litigation, which the provision seeks to avoid.
Under the Bill, an independent court will determine both the right to and level of compensation, obviating the need for an independent assessor. Lengthy limitation periods such as the two years proposed in the new clause are normally provided when potential applicants would not be aware of the event giving rise to a claim until some time afterwards. As the Bill contains safeguards in relation to the provision of notices, that is not the case.
However, in rare cases in which the fact that the premises have been closed is not immediately apparent to a potential applicant, we regard the three-month limit currently provided in paragraph 15 for making a compensation application to be sufficient. Three months is in line with other limitation periods, such as that for judicial review and the compensation provision for closure orders in section 90 of the Anti-social Behaviour, Crime and Policing Act 2014. When the issue of compensation arises, it is important that the matter is concluded promptly in the interests of all concerned. Immigration officers will be trained to exercise appropriate caution before they use these important new powers to tackle repeat abuse of illegal working legislation.
Schedule 2 incorporates a number of important safeguards that limit the impact of closure notices before a compliance order is obtained from the court. It is important to bear in mind the context in which such orders will be served: on employers who have repeatedly flouted the law by employing illegal workers. It is right that occupiers of premises such as those employers who have failed to take reasonable steps to prevent illegal working from taking place should not be entitled to compensation. The Government have sought to strike the right balance between tackling employers who repeatedly flout illegal working legislation and protecting the interests of legitimate businesses and workers. That is reflecting in the drafting of paragraph 15.
I look forward to the debate on the new clause, but I hope that, on the basis of what I have said and anything I may say after the new clause has been spoken to, hon. Members will feel able not to move it.
Keir Starmer (Holborn and St Pancras) (Lab)
It is a privilege to serve under your chairmanship, Mr Owen. The new clause would provide a statutory compensation scheme to persons to whom an illegal working closure order is issued in circumstances as described by the Minister. The purpose is not so much to urge caution on the part of immigration officers as to recognise that it is unusual to have a closure power vested in the Executive rather than in the judiciary. That power is vested in a member of the Executive with quite a draconian, albeit short, power to close down a premises for 24 or 48 hours. I accept that the chief immigration officer must go through a number of hoops to satisfy himself or herself that it is appropriate to make an order. The new clause drives at the situation in which a notice is issued and subsequently cancelled or no compliance order is made.
The obvious case where the new clause would bite is where there has been an error on the part of the chief immigration officer, and there will be errors. It is impossible for anybody to argue that there will not be errors in the issuing of closure orders. In a case in which an error has been made, a business is closed down when it should not have been. The new clause would provide compensation or a scheme for compensation to the individual who loses out as a result. I think there is no disagreement between the Minister and me that justice would demand, in the event of an error, that if someone has lost business, they ought to be compensated. I think that that is an agreed principle, but the Minister says that paragraph 15 of schedule 2 makes the new clause unnecessary.
The problem is that paragraph 15 of schedule 2 provides a power to apply to courts for compensation within three months. Putting that to one side, paragraph 15(3) sets out the circumstances in which an order may be made. Those circumstances are prescribed in sub-paragraphs (3)(a) to (d). Unless I am mistaken, the fact that the order was simply made in error is not within any of those four sub-paragraphs, which cover circumstances such as,
“not otherwise associated with the use of the premises”
or, if associated, “took reasonable steps.” Another is, “incurred financial loss”.
I accept that anybody who falls within paragraph 15(3)(a) to (d) would perfectly well be compensated. In principle, there is nothing wrong with the court doing that. It would make sense for the court to do it at the same time that it is considering the matter in the round. The Minister will correct me if I am wrong about this. I do not think that paragraph 15(3)(a) to (d) of schedule 2 covers a case in which it is accepted by all sides that a chief immigration officer has simply made a mistake by closing down a premises, and a business incurred financial loss. Unless there is a sweep-up and I have misread it, that is my understanding.
James Brokenshire
Paragraph 15(3)(d) of schedule 2 says
“that having regard to all the circumstances it is appropriate to order payment of compensation in respect of that loss.”
That may address some of the other issues that he highlights. I will let the hon. and learned Gentleman reflect on that.
Keir Starmer
I will do so; that may be helpful. If the record shows that it is understood that that covers the ordinary case of an error, part of the new clause may not be necessary. It leaves a gap when the order is simply cancelled and never comes before a court. Will the Minister reassure me that in the circumstances of an order being cancelled, under schedule 2, the person incurring loss can get before the court for the compensation order? At the moment, I think the scheme is premised on the chief immigration officer applying to the court to have the order confirmed. In other words, even where the chief immigration officer does not apply to the court at all because it is recognised that it was an error—
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
It is a pleasure to serve under your chairmanship, Mr Owen.
As with the previous clause, we seem to be giving immigration officers too much power without the relevant training or proper judicial oversight. When he gave evidence last week, Colin Yeo was asked whether he was concerned about the powers to be given to immigration officers. He said that he was, “Very concerned”, and said of the chief inspector:
“In a couple of reports from March 2014, for example, he found that immigration officers were granted the power to enter business premises without a warrant in two thirds of cases, without justification; he also found unlawful use of power, ineffective management oversight, major variations in local practice and inadequate staff training across all grades—really serious concerns are being raised. Reports on removals and emergency travel documents are, again, very critical of Home Office management of the process and training. The idea that more powers should be given to people who are already exercising them in a very questionable way is somewhat dubious, in my view.”––[Official Report, Immigration Public Bill Committee, 22 October 2015; c. 107, Q224.]
We received the Minister’s letter this morning and are grateful for that, but will he clarify “reasonable grounds” for those in the room who are not lawyers, which is probably quite a few of us? As things stand, the scope of the closure powers are far too wide.
The Bill proposes that an officer has the power to close an employer’s premises if satisfied “on reasonable grounds” that the employer is employing an “illegal worker”, as defined, and if the employer has been required to pay a civil penalty in the past three years, has an outstanding civil penalty or has been convicted of the offence of knowingly employing an illegal worker or a person whom the employer had reasonable cause to believe was not entitled to work. The initial closure may be for up to 48 hours. The immigration officer may then apply to the court for an illegal working compliance order, which can prohibit or restrict access to premises for up to two years.
Why are such measures required when criminal sanctions are available? What will ensure that the measures are not used in an oppressive manner? Yes, we need action against bad employers who flout the rules, but the consequences are potentially terrible if enforcement gets it wrong. There should at least be proper safeguards, such as judicial oversight. What about the effect on innocent workers and their families whose workplaces are shut down? The Government should think again.
James Brokenshire
I am grateful for all the comments. In response to the initial points made by the hon. and learned Member for Holborn and St Pancras, I refer to the provisions contained in paragraph 15 of schedule 2, as I did when he intervened, in particular sub-paragraph (3)(d) about discretion. I also draw his attention to sub-paragraph (1), which states:
“Subject to sub-paragraph (4), a person who claims to have incurred financial loss in consequence of an illegal working closure notice or an illegal working compliance order may apply to the court for compensation.”
I do not read that as someone having to go through to the order stage. In other words, a notice has been issued, but it is open to seek redress through the court under that provision.
It is also relevant to say that for a mistake to have taken place, the grounds specified in paragraphs 3 and 5 to schedule 2 would equally have not been found to have been made out. That implies that a mistake has been made. Therefore, although I pointed to paragraph 15(3)(d) to schedule 2, obviously some of the earlier provisions would be redolent—for example, paragraph 15(3)(b):
“if the applicant is the owner or occupier of the premises, that the applicant took reasonable steps to prevent that use”.
It all ties back.
Keir Starmer
May I clarify something, if possible? My concern—if this is a misreading, then it is a misreading— is that paragraph 15(1) of schedule 2 gives the power to apply for compensation, and that the circumstances in which the court may order it are in paragraph 15(3). Those are the only circumstances in which it may be ordered. I read paragraphs 15(3)(a), (b), (c) and (d) as conditions that must all be satisfied. I say that because paragraph (d) is not free-standing:
“having regard to all the circumstances it is appropriate to order payment of compensation in respect of that loss.”
The word “that” can only refer back to paragraph 15(3)(c). They are not disjunctive; they are conjunctive. That might just be the way that it is drafted, but paragraph 15(3)(d) makes no sense as a free-standing provision. It must relate back to the others.
James Brokenshire
I am happy to consider the narrow point raised by the hon. and learned Gentleman on the normal legal definitional drafting issues surrounding the use of “and” and “or”, which he will understand from all sorts of legal documents that he has undoubtedly read. I am content to look again at the provision and see whether any further clarification is needed. My hon. and learned Friend the Solicitor General, sitting alongside me, is shaking his head, but in fairness to the hon. and learned Gentleman, I am happy to reflect further on the narrow point that he has raised and consider it carefully.
I underline the general point that in those rare cases—it is for a limited period as well, just 24 or 48 hours—where a mistake is made and the issuance of a notice does not proceed to an order, any loss that may crystallise is likely to be small, because the period of closure is short. However, I do not make any judgments on that, given the nature and size of the businesses that might be involved and so on. In those circumstances, if it turns out later that illegal workers were not in fact employed at or in connection with the business operating on the premises, paragraph 15 does not prevent an affected employer, owner or occupier of the premises from applying for compensation. I hope that that is a helpful response.
The hon. and learned Gentleman drew some comparisons involving the time periods, and rightly highlighted the process and steps that must be gone through. The concept is modelled, as I have indicated, on other forms of legislation with which he will be equally familiar; I refer him to the Anti-social Behaviour, Crime and Policing Act 2014. I can think of other circumstances, such as under licensing laws, in which temporary closure notices may be granted to the police or a licensing officer in certain circumstances. The concept of a short-term mechanism is understood.
Equally, that addresses the point made by the hon. Member for Paisley and Renfrewshire North about whether it is appropriate for the Executive to have such a power. Yes, it is, in the constrained way that the power is structured within the schedule. It provides an appropriate system and process, as well as judicial oversight in the fact that the court must assess, confirm and validate the power. As we have just said in the discussion on compensation, if the officer gets it wrong, compensation can be awarded through the courts.
Paul Blomfield (Sheffield Central) (Lab)
In terms of objectives, we are on the same page in seeking to ensure that repeat-offending employers are dealt with robustly. A moment ago, in his response to my hon. and learned Friend the Member for Holborn and St Pancras, the Minister said that the orders would be used in a constrained way. Does he understand the anxiety, given that the schedule does not explain that constrained way, or can he point me to something that I am missing?
James Brokenshire
I can, if the hon. Gentleman looks at the triggers for the use of the power in paragraphs 15(3) and (5), and the reasonable grounds that would need to be satisfied. I would highlight the second condition in paragraph (5):
“the employer, or a connected person in relation to the employer...has been convicted of an offence under section 21...has, during the period of three years ending with the date on which the illegal working closure notice is issued, been required to pay a penalty under section 15 of the 2006 Act, or...has at any time been required to pay such a penalty and failed to pay it.”
In other words, it is not trying to look for first offenders. Because of the two conditions in paragraphs (3) and (5), it is trying to get at some of those businesses and employers who are not doing things properly and who have already had some form of sanction applied to them.
I mentioned phoenix companies in my opening comments. We have dealt with the concept of a connected person in paragraph 8 of schedule 2. It is important. We know of circumstances in which people will seek to try to subvert the law by creating a new company to try to get round the rules and requirements. They might say it is the first time because they are not able to pierce the corporate veil. So we have considered this measure carefully and we judge that it is appropriate to have such safeguards and that it has that element of the court being able to intervene for compensation or for confirmation of any extended period. This is an important tool to support and take action against businesses that are acting inappropriately.
I say to the hon. Member for Paisley and Renfrewshire North that the matter is about the impact and consequences. I do not think that he would tolerate a business that employed people illegally on a serial basis, because people who are in his constituency and in this country lawfully should have the jobs, rather than the people who are not here lawfully and are staying here illegally. We are seeking a balanced approach and we judge that the manner in which this measure is constructed, and on the basis of experience in other spheres, it is appropriate in terms of the operational benefit that it provides as well as the safeguards contained within it. For those reasons, I will oppose new clause 5. I hope that hon. Members will be minded to see that clause 11 stands part of the Bill.
Question put, That the clause stand part of the Bill.
James Brokenshire
I beg to move Government amendment 11, in schedule 2, page 58, line 20, at end insert—
‘( ) Where a person is on immigration bail within the meaning of Part 1 of Schedule 5—
(a) the person is to be treated for the purposes of sub-paragraph (3) as if the person had been granted leave to enter the United Kingdom, but
(b) any condition as to the person’s work in the United Kingdom to which the person’s immigration bail is subject is to be treated for those purposes as a condition of leave.”
This amendment ensures that individuals on immigration bail who are granted permission to work in the United Kingdom are not considered illegal workers for the purposes of illegal working closure notices and compliance orders. The amendment reflects the approach to immigration bail taken elsewhere in the Bill – for example in new section 24B(8) of the Immigration Act 1971 as inserted by clause 8.
The Government amendment rectifies a technical omission in the drafting of paragraph (3) of schedule 2, which defines when illegal working takes place for the purposes of the new regime of closure notices and compliance orders. The change is necessary to ensure consistency between the definition of illegal working in schedule 2 and definitions used elsewhere, such as in the Immigration, Asylum and Nationality Act 2006, which provides for the civil penalty scheme and the offence of knowingly employing an illegal worker.
The definition also appears in the new illegal working offence in clause 8. Schedule 2 does not exclude persons who are granted immigration bail but are exceptionally permitted to work from the definition of an illegal worker. The vast majority of those on immigration bail will not be granted such permission, but that scenario may apply rarely in asylum cases in which the applicant has waited more than 12 months for a decision on their case and the delay is not attributable to them. Such persons may be permitted to engage in specified occupations in which there is a shortage of labour supply. The amendment will ensure that such persons do not constitute illegal workers for the purposes of the closure notice and compliance order scheme.
Amendment 11 agreed to.
Schedule 2, as amended, agreed to.
Clause 12
Offence of leasing premises
Keir Starmer
If it is convenient, I shall make some opening remarks about clause 12 and then take each amendment in turn. Our position is that the right to rent scheme should not be rolled out. When the scheme was first put into legislation in 2014, concerns were expressed across the House and also by landlords. I think that pretty well all the landlords—
James Brokenshire
I am interested in the hon. and learned Gentleman’s opening comments, because previously on the 2014 Act the Opposition said that they agreed with the principle and the approach taken in relation to the right to rent scheme, and there are parallels with the right to work scheme introduced by the last Labour Government. I am interested in why there has been a sudden U-turn in the approach taken by the Opposition.
Keir Starmer
I thank the Minister for that intervention. I think that the position was that the scheme should be subject to a pilot, which would be evaluated in a transparent way before the scheme was rolled out. Assurances were given—I am very happy to provide them to the Committee—by, I think, the then Minister about that evaluation before the scheme was rolled out any further. That assurance was given at the Bill stage, if memory serves me right. Opposition Members may remember that this was an issue when the Committee that considered the 2014 Bill was given an assurance by the Government that the scheme would not be rolled out any further until there was that evaluation. I understood that to be the position that underpinned the 2014 regime. I was therefore interested to read that the Prime Minister announced the roll-out before the pilot had ended. He announced the roll-out across England and Wales on, I think, 25 May.
James Brokenshire
The hon. and learned Gentleman will equally know that it was a commitment in our manifesto to proceed with the extension of the roll-out and that the date for the roll-out and the manner of that was announced only off the back of the evaluation, which was published when I made a formal announcement of this very recently.
Keir Starmer
I accept that, but the original intervention was to ask on what basis there had been a U-turn. My response to that is that the 2014 provisions proceeded on the basis that there would be a pilot and there would be no roll-out until the pilot was evaluated. [Interruption.] I will get to my remarks about the pilot in a minute. We have obviously had the opportunity to take a closer look at the evaluation that we were given, I think, last Tuesday, and I have some observations to make about it.
James Brokenshire
I am grateful to the hon. and learned Gentleman for highlighting the fact that the Home Office science team did not conduct the survey on the basis of a self-selecting sample. Indeed, its shape and framework was informed by the Landlords Panel, of which there were representatives from a broad range of interest groups such as tenants, NGOs and landlords. They were involved in shaping the manner in which the evaluation was conducted. While I note the hon. and learned Gentleman’s comments in questioning the basis of the evaluation, it was actually done with the approach in mind.
Keir Starmer
I obviously accept that proposition, but the Home Office itself makes comments in the evaluation about the statistical significance of the mystery shopping exercise. It says:
“Statistical significance testing was not conducted on the data due to the relatively modest number of individual mystery shops completed at a sub-group level.”
Later, it says:
“Small sample sizes inhibit the ability to draw robust conclusions”.
So the Home Office itself is saying in its evaluation, “We’re not sure about the statistical significance of part of the valuation and the sample sizes are too small to draw any robust conclusions.” In terms of putting the document forward as a comprehensive evaluation of the scheme to deal with the concerns that existed in 2014 and to satisfy a number of concerned communities and individuals that it is safe to proceed, this is a small sample with limitations that the Home Office recognises in the evaluation.
If no one is even close to the statistical significance of part of the evaluation, it is very difficult to say that any conclusions can be drawn from it at all. That goes to the central question of discrimination; it is a very thin evaluation, predominantly of students. [Interruption.] If the Minister would like to correct me, I am very happy to be corrected. When I mentioned 60 of the 67 tenants being students, no one got up to intervene so I assume that I am right. If anybody wants to argue that that is a representative sample of tenancies across England and Wales, I will happily sit down and listen to the intervention. If I am right about it, it simply is not a representative sample.
Keir Starmer
With that, I will speak to amendment 71, which is designed to give landlords facing criminal prosecution a defence if they act to evict the illegal tenant within two months of becoming aware that the tenant is illegal. The scheme has flaws, which I have attempted to outline. It includes provisions that put landlords in an impossible and unacceptable position because they become criminals on a date when they cannot do anything about that criminality. If it is brought to a landlord’s attention that they have someone in their premises who does not have a right to rent, they are duty-bound. It would be entirely appropriate for them to begin eviction proceedings from the moment they find out about the illegal tenant, but the landlord is already criminalised. They have become a criminal; they simply have not been prosecuted and charged. I cannot see any reason or need for that. This defence simply provides for a space when a reasonable landlord, acting reasonably, would take the necessary measures to ensure that the person who did not have the right to rent was removed. It is difficult to think why that amendment should not be accepted. In other words, I cannot see a logical reason or coherent and principled argument that it is necessary to criminalise a landlord when he or she is trying to act properly, according to what he or she has just been told. Amendment 71 would deal with that situation.
It is probably convenient to deal with amendment 87 at the same time, although it is jumping the grouping, because it deals with the same provision. Landlords raised concerns that they would be committing an offence as soon as they knew a tenant was illegal, even if they were in the process of evicting them. No one can assure them that they will not be prosecuted; in any event, there is no good reason for it. Amendment 87 would provide protection during the process of serving an eviction notice. Amendment 71 would give the landlord slightly more leeway by giving them two months to act before they serve the eviction notice. I can think of no sensible reason why the amendments cannot be accepted.
Paul Blomfield
I want to take the opportunity to look at the wider concerns behind the group of amendments and the clause itself. I want to return to the Prime Minister, who always seems a useful reference point. I thought his speech at the Conservative party conference was moving and significant. He said:
“Picture this. You’ve graduated with a good degree. You send out your CV far and wide. But you get rejection after rejection. What’s wrong? It’s not the qualifications or the previous experience. It’s just two words at the top: first name, surname. Do you know that in our country today: even if they have exactly the same qualifications, people with white-sounding names are nearly twice as likely to get call backs for jobs than people with ethnic-sounding names? This is a true story.”
He went on to elaborate one example. I thought that was a telling description of how discrimination operates in the workplace, and a passionate appeal for us to take care not to create those conditions. We should be seeking to mitigate and prevent the occurrences he highlighted.
As in the workplace, so in the relationship between landlords and tenants.
James Brokenshire
The hon. Gentleman is making an important point about discrimination more generally. That concern would be shared across the Committee, in seeking to confront and combat discrimination in all its forms. He and I share the same stance on that. To follow the logic of what he and his hon. and learned Friend have said, does he think that the right to work checks were a mistake by the previous Labour Government? Because that appears to be where his logic is taking him.
Paul Blomfield
That is an interesting intervention from the Minister. He, I and everybody on the Committee surely share the objectives of ensuring discrimination does not take place. We could have a useful and reflective discussion on the lessons we could learn from the previous Labour Government, but I guess the Chair might rule that a diversion. It is more important that we focus on the issue before us today.
Keir Starmer
Thank you, Mr Owen. By the end of this process, I hope to have mastered all the rules as to what happens and when. I am grateful for the advice.
Amendment 89 is intended to provide a court with the discretion as to whether it orders possession of a dwelling house on the grounds that the Secretary of State has issued a notice confirming that a person does not have a right to rent. The amendment would change “must” to “may”, therefore giving the court discretion based on the facts of the particular case before it. At the moment the court does not have discretion, so in a case with children involved, for example, who will lose their home as a result of the order that the court is about to make, the court does not have discretion not to evict the family. As drafted, that will operate as an obvious injustice.
Nearly always in eviction cases, it is sensible to give the court discretion to act in the right way on the facts before it. I can foresee a situation in which a family with children who might then fall to be assessed under the Children Act 1989—the children might even be taken into care—would be of deep concern to a court considering eviction proceedings. If a court knew that an order that it was about to make would lead to a family being split up and the children taken into care, it might well want to exercise discretion not to evict there and then. Amendment 89 would give the courts that discretion.
As drafted, eviction is mandatory—the court must evict, even families with children, whatever the impact on them or, frankly, on the local authority that might well have to pick up the duty and the tab. That is why amendment 89 is fundamentally important in the interests of justice.
James Brokenshire
I will respond to the specifics of the amendments in the group. The hon. and learned Gentleman and others have strayed more widely and I will comment later on some of their more general points, but first the specifics.
Keir Starmer
The Minister says the measures are for repeat rogue landlords, but there is nothing in the Bill that necessarily means that someone commits an offence only if they are a repeat offender; the measures apply equally to a first-time offender. Someone becomes an offender as soon as it is brought to their attention that the right to rent has ceased. That is the trigger. It may be that the enforcement agencies and prosecuting authorities take a particular view, but as I understand them, the measures in the Bill as drafted apply to any landlord who receives notification at any time that someone they are renting to does not have the right to remain.
James Brokenshire
The hon. and learned Gentleman is pointing to the provisions in clause 12, and in particular the two conditions that need to be satisfied as expressed in proposed new section 33A(2) and (3) to the 2014 Act. He is right. That is why I prefaced my comments with remarks about the intent that the offence be for serial offenders and the most egregious rogue landlords. The point of the offence is that there may be very serious situations in which conditions so appalling are discovered that it is judged that an action should be brought, and it is then also discovered that the people in the property do not have the right to be in this country.
It is important to understand, in relation both to the right to rent checks and to the offence, that we seek a firmness of approach and the opportunity for joint working between immigration enforcement and local authorities to tackle the rogue and hardened sector. We judge that that will raise standards within the sector as a whole. It will ensure that property on the rental market is available to British citizens and those with the right to be in this country. Looking at the housing market, the Bill is intended to aid the situation so that British citizens are able to rent available property. The tools and mechanisms under the right to rent and the offence in clause 12 sit alongside joint working by local authorities on inspection, on confronting rogue landlords and on tackling the appalling conditions and standards that some rogue landlords operate under.
The provisions need to be seen in that context. Some of the local authorities in the initial pilot area would point to how the mechanism has aided and assisted their work, through sharing intelligence, for example, so that they are able to confront the rogue sector. One issue is how we raise standards more generally, and we can use this mechanism to do so.
Keir Starmer
The civil regime was put in place a year or so ago. It was then evaluated. Which part of the evaluation does the Minister rely on to make the case that, in addition to a civil approach, criminal sanctions are needed? Where in the evaluation is there anything that says, “This is all very well, but it will not work and we need to go further and have a criminal offence”?
James Brokenshire
It is our judgment on the tools that are necessary for immigrant enforcement. The hon. and learned Gentleman will recall the debate that we had on illegal working and sanctions, and how the escalation of a civil penalty regime for dealing with negligence was appropriate, but how, when someone has knowledge or reasonable cause to believe, a criminal sanction was appropriate to deal with those ingrained circumstances for those who deliberately turn a blind eye. If he looks at the language in new section 33A(3), it states:
“knows or has reasonable cause to believe”,
so this provision reflects the approach that we have previously taken in the Bill, which has been approved as we have gone through the Bill, on the different escalations. That is the basis upon which we judge that a separate criminal sanction alongside the negligence approaches in the civil scheme would operate. Again, this measure is not an attempt to catch out the unwary, but the element needs to be satisfied in the second condition attached to the offence. That is why I framed my response in the way that I did.
I want to come back to what the hon. and learned Gentleman and the hon. Member for Glasgow North East said. I want to emphasise the intent behind the measure. I will reflect carefully on the contributions that they have made, because the intent is not to try to catch out and to act in a deliberate way to seek effectively to say, as a consequence of the issuance of the notice, that someone is committing a criminal offence. In fairness to the hon. and learned Gentleman and the hon. Lady, and to the Committee, I will reflect on what they have said because of the intent that we have in respect of the measure, on which I have just responded. I could say that, as he knows, it is for the CPS to make those sorts of decision, but, in fairness to both Members, I will reflect further on what they have said and my intention and that of the Government as regards whom the measure is aimed at and the manner in which we seek the offence to be advanced. I hope that that is helpful to the Committee.
We judge that amendment 72 is unnecessary. An agent who is a co-tenant would fall liable for prosecution only where they are the party that is responsible for any right to rent checks. This is the approach taken in the right to rent scheme and reflects the incidence of sub-letting found in the private rented sector. In such instances, a landlord may not be aware that another occupant has moved into the rented property and it is inappropriate that they should then fall liable for the offence.
The Immigration Act 2014 does provide for instances where an agent is involved: an agent acting on behalf of a landlord as a normal part of their business. In essence, that is where the responsibility has been transferred. In such instances, the landlord and agent should agree in writing where the responsibility for the right to rent checks should lie. There may be instances where a landlord is happy that a tenant may take in another occupant in a sub-letting arrangement. In such circumstances, the landlord and existing tenant should agree where the responsibility for right to rent checks should lie. So we are looking back to the operation of the original Immigration Act 2014 on where responsibility lies and that transfer of responsibility to the agent, as provided in the Act. I think hon. Members can understand the circumstances in which professional agents act on behalf of landlords, and it is understood, as part of the other checks and validation, that the agent should bear such responsibility.
Paul Blomfield
I want to be absolutely clear, because, as the Minister knows, I represent a constituency with a considerable number of students: more than any other Member in the country. I want to be clear on the position that co-tenants might be in, for example. In the ordinary run of things, if someone drops out of a house, the onus is on the co-tenants to find somebody to fill the vacancy. Does the Bill place any liability on co-tenants that might end up with them facing prosecution?
James Brokenshire
If I understand the hon. Gentleman correctly and if he is referring to what might be regarded as an agency, we are looking more at the formal agency structure under the Immigration Act 2014 that I have referenced. He will know about the exceptions and provisions regarding halls of residence and the formalised arrangements involving universities and other academic institutions regarding property used for student accommodation. I will take his specific point about students, because my understanding is that that should not be the case. Given that the point about co-tenancy is quite technical and narrow, if I am unable to come back to him—we are running over into the luncheon period—during my response to the debate, I will certainly seek to do so separately.
On amendment 85, the offences do not apply retrospectively. The criminal behaviour for which a landlord may be liable to prosecution would be their behaviour in renting to someone disqualified from renting or their failure to notify the Home Office that someone is disqualified from renting after the point when the offence came into force. A landlord can be prosecuted, however, for renting to someone disqualified from renting when the tenancy agreement was entered into before the offence came into force. The burden would be on the prosecution to prove that a landlord knew or had reasonable cause to believe that they were renting to a disqualified person. The amendment would serve to put any rogue landlord who could establish that a tenancy started before the offence came into force beyond the reach of prosecution.
I return to my general point about the intent behind the provisions. It is about that element of knowledge involved here, hence the escalated emphasis behind this and what the prosecution would need to prove. Therefore, if an appalling landlord whose properties were in dreadful condition was renting to someone illegally, it would not necessarily be right to say, “Action should not be taken, because that tenancy did not arise in respect of the original right to rent scheme.” I appreciate that there may be differences of opinion on that, but in such an egregious situation where we might say that the tenancy did not arise until after the scheme was rolled out, I am not sure that hon. Members would feel that we were doing the right thing. Indeed, I do not think that we would necessarily be doing the right thing in such circumstances, which is why the offence is framed in the manner that it is. I understand why the hon. and learned Gentleman tabled the amendment and sought to ally it firmly to the right to rent scheme, but considering such egregious cases is an important part of the approach and is why we have framed our statements about why this is necessary around repeat offenders and rogue landlords.
We have one minute left before we break for lunch, but I will give way to the hon. and learned Gentleman.
Keir Starmer
I was not intending to intervene. I was just manoeuvring in an unusual way.
James Brokenshire
I am glad that the hon. and learned Gentleman made that comment. I would never have claimed that he was manoeuvring in any particular way but I am grateful for that clarification.
Turning to amendment 87, providing protection from prosecution on the face of the Bill in the circumstances set out by the hon. and learned Gentleman is not needed. Any decision to prosecute will involve careful consideration of all the circumstances, including what action, if any, a landlord has taken following receipt of a notice from the Home Office.
Ordered, That the debate be now adjourned.—(Charlie Elphicke.)
Immigration Bill (Eighth sitting)
James Brokenshire Excerpts(8 years, 6 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 72, in clause 12, page 9, line 37, at end insert—
‘(6) The agent does not commit an offence under subsection (2) or (4) if the agent is also a resident of the property in subsection (1).”
This amendment aims to ensure that co-tenants (who would normally be described as house sharers), who also act as agent, cannot be held liable for their landlord’s contravention of Section 22 of the Immigration Act 2014.
Amendment 85, in clause 12, page 10, line 25, leave out paragraphs (4) to (6) and insert—
‘(4) Sections 33A to 33C do not apply in relation to a residential tenancy agreement or a renewed agreement entered into before the coming into force of section 12 of the Immigration Act 2014.”
To ensure that none of the criminal offences are committed in respect of tenancies entered into (or, in the case of renewed tenancies, first entered into) before the offences come into force and thus to ensure that there is no retrospective element to these criminal penalties.
Amendment 87, in clause 13, page 11, line 33, at end insert—
‘(6A) A landlord does not commit an offence under s 33A of this Act during the period of 28 days specified in subsection 4.”
To protect a landlord/landlady from prosecution for renting to a person without a right to rent during the period for which they are prohibited from evicting the tenant under subsection 33D(4).
Amendment 88, in clause 13, page 12, line 1, leave out section 33E.
To remove the provision which implies into any residential tenancy agreement that the landlord or landlady may terminate the tenancy if the premises are occupied by an adult who is disqualified from renting because of their immigration status.
Amendment 89, in clause 14, page 13, line 6, leave out “must” and insert “may”.
To provide a court with a discretion as to whether or not it orders possession of a dwelling house on the grounds that the Secretary of State has issued a notice confirming that a person does not have a right to rent.
The Minister for Immigration (James Brokenshire)
Just before lunch, I was responding to the amendments tabled by the hon. and learned Member for Holborn and St Pancras, and I had reached amendment 88. The hon. Member for Sheffield Central raised a point about co-tenants, and I said that I would reflect over the luncheon period and see whether I could respond to him. Where a landlord takes on a tenant and accepts rent from them, that landlord takes responsibility for carrying out the checks. That is the fundamental starting point. The tenant is responsible for right to rent checks only if they sub-let, unless they agree otherwise with the landlord. Only where an agent is acting in the course of a business under section 25(2)(a) of the Immigration Act 2014 can an offence arise. That was the point I was trying to elucidate, without the agency provisions in the 2014 Act in front of me.
To take the hon. Gentleman’s example of students, in the circumstances that he outlined they would not be acting as an agent in the course of their business, so the provisions would not apply. The provisions could operate only if there was a formal sub-letting arrangement, which is, I believe, different from the arrangement that he was describing. The luncheon adjournment has enabled me to respond to his question, and I hope that that answer is helpful.
I turn to amendment 88. New section 33E was introduced to provide a means by which a landlord could pursue eviction where a tenancy is not an assured shorthold tenancy—in other words, a common-law tenancy—even if that was not set out in a tenancy agreement by making it an implied term. Removing that would create uncertainty for landlords about when they could terminate the tenancy if they discovered that they were renting to an illegal immigrant. The hon. and learned Gentleman’s amendment would create difficulty and uncertainty for landlords and tenants, and we judge it to be unnecessary.
On amendment 89, the clause makes it clear that action could be taken only after the Home Office served a notice or notices on a landlord. Those will be issued only when the Home Office is clear that the occupiers are illegal immigrants, that they do not have the right to rent and that there is no bar to their leaving the United Kingdom. I suspect that we may have further discussion on clause 14 later on, but for now I will say that in conducting its duties, the Home Office would have to consider its responsibilities in relation to children when determining whether a notice should be issued. It is our judgment, therefore, that the system contains that safeguard and check, but I have no doubt that we will discuss that in more detail when we come on to the provisions concerning the operation of the eviction arrangements, because of the way in which the amendments have been grouped.
Mrs Emma Lewell-Buck (South Shields) (Lab)
I wonder whether the Minister can clear up something that I am a bit curious about. My hon. and learned Friend touched on a local authority’s duties under the Children Act 1989. If a family are evicted, will they be entitled to local authority help under homelessness legislation as well?
James Brokenshire
The hon. Lady makes her point, and I have no doubt that we will discuss that further when we reach part 5 and clause 34 on support for certain categories of migrants. There are duties around homelessness, and there will be relevant factors such as whether there are barriers to removal and whether someone is co-operating with their removal. If I may, rather than going into the details now—they are relevant; I do not seek to avoid debating them, but I think that they stray more into later issues—I am looking forward to debating the matter when we reach those points.
Keir Starmer (Holborn and St Pancras) (Lab)
This intervention is simply to make sure that I understand what the Minister has just said. The Home Office is required to take into account children when it makes any of its decisions, and I understand that. However, does it follow from that that it would not serve a notice on a landlord if there were children in the family? The difficulty that amendment 89 is getting at is that once the landlord has the notice, the eviction process follows, so the only way in which the Home Secretary would be able to consider children would be by not serving a notice on the landlord. Is that what he means?
James Brokenshire
That is what I mean. The point is that children may be involved through the family returns process, and therefore, it may be appropriate in those circumstances to serve the notice, but the Home Secretary, or those who would draw up the notices and consider each individual case, would have to weigh up and carefully consider all those issues. Our overriding responsibility is to take into account the interests of children under other legislation. That is the point I am making. The hon. and learned Gentleman is right about the process, but there is that preliminary step and check that the Home Office would have to consider. However, it may be appropriate to serve a notice, for example, as I say, when children are involved in a family return and are viewed in that overall framework.
Many cases will not get to court as the landlord can offer to transfer the tenancy to the remaining legal tenants, or to enter into a new tenancy with them. The measures also contain a discretionary power for the court to transfer the tenancy rather than award possession on the mandatory ground if the judge thinks it is appropriate to do so.
The mandatory ground for possession recognises that the Home Office notice is a clear statement of immigration status; it is not necessary or helpful for a court to enter into its own additional assessment of the reasonableness of making a possession order, which would be the effect of making this a discretionary ground. I look forward, however, to further discussion on the specific eviction provisions when we reach our consideration of the relevant clauses.
I want to take a slight step back to the issue of discrimination, which we touched on before the luncheon period. Sadly, it remains a fact that there is discrimination in this country, in a number of different forms. The hon. Member for Sheffield Central made important points on the manner in which we should seek to confront that and on the fact that it is unacceptable. There is common ground across the Committee on those general points.
The question I posed to the hon. Gentleman—I note that he thought it was not necessarily relevant—was on the logic of where I thought his comments were going. If he says, for example, that a check on the right to work is not acceptable, because of the issues that he was elucidating, he is entitled to hold that view. Equally, I was checking with him whether that was where his logic was taking him. He can obviously speak for himself; I would not wish in any way to impute something or put words into his mouth.
The point I make is that there is a policy objective, as I have indicated, in seeking to ensure that when properties are on the rental market, they should primarily be for people—we would argue that the regulations and process behind right to rent is intended to achieve this—who have the absolute and clear right to be in this country, recognising the shortages of property and the need for prioritisation. Similarly, there are arguments as to how that might either encourage people not to come to this country or to encourage their removal as part of an overall removal framework. So there are different policy objectives in that. The third element is, as I indicated before lunch, how the information that can be garnered through right to rent checks, and collaboration between immigration enforcement and local authorities can have a direct benefit in challenging rogue landlords and raising standards in letting property. We see all those objectives in the concept behind the original right to rent scheme. That is added to with the extra criminal offence in the clause, albeit with the enhanced test that needs to be applied in parallel with and reflecting the points that we discussed previously about illegal working. A suite of mechanisms is in place to raise standards within the property sector, as well as in other sectors.
The sad reality is that discrimination happens in the workplace and when renting a property. Indeed, the Home Office study showed that there was no distinction between the two test areas—the area where the right to rent scheme was in its first phase and the area where the right to rent scheme was not in existence. That for me is what things come down to. Yes, of course we should be confronting discrimination, hence we have specific guidance on the operation of the right to rent scheme to ensure that it is not operated in a discriminatory way. The guidance underlines the sanctions that can be brought against those who are shown to be discriminating. That is right and it is why other legislative measures are in place to underline it.
Given the Home Office study, however, and the blend of evidence—it was not one single thing but a host of elements that led to the comments in the evaluation, whether surveys, mystery shopper exercises, focus groups or direct engagement—our conclusion was that the initial phase of the right to rent scheme had operated effectively and appropriately and that there was no hard evidence that the scheme contributed or added to discrimination. That is our standpoint and the reason why we have made our judgment. I appreciate that I am straying slightly beyond the ambit of the Bill, speaking more to the 2014 Act than to the specifics of the proposed offence that we are debating, but there is some linkage, which is why I thought it appropriate to respond to some of what was said in the initial debate.
Several hon. Members rose—
James Brokenshire
I have provoked a stream of interventions. I will start on that side and work my way around.
Anne McLaughlin (Glasgow North East) (SNP)
Start at the left and move to the right—
James Brokenshire
I would have said “to the right”, but I did not think it was necessarily appropriate.
Anne McLaughlin
The Minister is looking at things very differently from how I see them.
The Minister made a good point about discrimination—it will be harder for landlords, for example, to discriminate, because people will be able to say, “But I have ticked the check list and I have the passport or whatever.” However, it is hard to prove discrimination. If five people are going after one place—it is rarely only five—what would the potential tenants who are discriminated against do? They will not take the landlord to court. They might have evidence in their mind that they have been discriminated against, but what will they do with it? How successful would any case be?
That was not my main point, which is—
The Chair
Order. Interventions have to be shorter than this. Let the Minister deal with the first point, have a breather and then come back to the second one.
James Brokenshire
The hon. Lady makes some important points about discrimination. The Equality and Human Rights Commission has an important role to play and there are remedies potentially available under the Equalities Act 2010, but I suggest that that is part of a broader debate about how we continue to confront discrimination in all its forms by providing appropriate remedies. That is a slightly different debate from the one that we are having in Committee about right to rent checks and the criminal sanction that we are debating in this group of amendments.
I will move across and take an intervention from the hon. Member for Sheffield Central.
Paul Blomfield (Sheffield Central) (Lab)
I thank the Minister for inviting me to intervene, in response to our earlier discussion. Nobody would dispute that we are at one on seeking to avoid direct or indirect discrimination. We therefore need to take care of the consequences of any legislation we put in place.
I want to test the Minister with my earlier remarks again. Is he really satisfied that the evaluation provides us with sufficient comfort that such discrimination will not take place? The Home Office’s own commentary on the evaluation states that
“the tenants survey… should be read as primarily reflecting the views of the student community, rather than being generalisable to the wider tenant group.”
The Home Office has therefore said that we cannot draw lessons from this about the private rented sector as a whole. The Home Office has also said in relation to mystery shopping that
“statistical significance testing was not conducted on the data due to the relatively modest number of individual mystery shops completed at a sub-group level.”
It goes on to say:
“Small sample sizes inhibit the ability to draw robust conclusions”.
Does the Minister accept that there is cause for reflection about whether this provision gives us sufficiently robust assurance that there will not be discriminatory impacts?
James Brokenshire
In response to the hon. Gentleman’s point about the tenant surveys, if we had simply done online surveys, there might be an issue, but there were also 10 separate focus groups that involved landlords, letting agents and tenants. If we were trying to base this on a single source of evidence, he might view it in that way, but the evaluation was based on multiple sources of evidence.
As the analysis highlights, there were multiple research methods, including online surveys, interviews and focus groups, as well as mystery shoppers and other steps. The evaluation did not find evidence of discrimination as a result of the scheme. Because multiple methods were used and in view of the results of the findings, the evaluation does not give me pause for thought. Rather, it indicates to me that the first phase of the scheme has produced the results that we hoped for and expected, and that we can move on to national roll-out.
Mrs Lewell-Buck
I want to explore this a little. Does the Minister not accept the evidence that we heard from David Smith of the Residential Landlords Association? He said that landlords would become risk averse and that, as a result, we would see discrimination against people whom landlords perceive as non-British? Often, there will not be evidence of discrimination, because it is far more subtle than that. People who are discriminated against often do not come forward to say so, and landlords themselves are not going to say, “Yes, we’re being risk averse. We’re discriminating.” Is it worth the risk of introducing this part of the legislation, or is it better not to introduce it at all?
James Brokenshire
In fairness to the hon. Lady, she focuses on an important point that reflects a comment made on Second Reading by the Scottish National party Member—unfortunately, I cannot remember her constituency name off the top of my head.
James Brokenshire
Glasgow North East—how could I forget? The hon. Member for Glasgow North East said that because of her name, property not might be rented to her. A similar point is now being adduced by the hon. Member for South Shields. The point is that, sadly, discrimination would happen anyway if the landlord was not minded to rent for that reason. It is nothing to do with the scheme itself, which is simply about identifying individuals. If we are talking about a name, a racist and discriminatory landlord would, sadly, act that way anyway. That is my point. We have the right to work check and we wish to extend the right to rent check. But I think the hon. Member for Glasgow North East had another point to make.
Anne McLaughlin
The point I wanted to make has been made, but possibly has not been understood by the Minister. Yes, there are people who will discriminate anyway, but the Residential Landlords Association has said that its members were fearful that they would be forced, for fear of committing a criminal offence, to go the other way and behave in what they called a racist way. There are people who already behave in that way; we are referring to people who do not want to do so, but who say that fear of the law or not understanding what is required under the law will make them behave in that way.
James Brokenshire
That is why the offence is framed as it is. It is not about negligence but about conscious or deliberate turning of a blind eye. I take the hon. Lady’s point, but it is not set at that lower level.
Keir Starmer
I want to press the Minister on the point about assurance raised by my hon. Friend the Member for Sheffield Central. The Minister pointed to the focus groups, but we heard evidence from Richard Lambert, the chief executive of the National Landlords Association, who has huge experience in the field. He said:
“We would have said, ideally, a year to 18 months because most tenancies last more than six months. In order to understand how this process works, you have to give it that length of time so you can see tenancies coming to an end, and limited right to remain coming to an end and you can see how that renews. It also took place at what is probably the slowest time of the year so, inevitably, there were not going to be a lot of tenancies turning over.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 63, Q139.]
He went on to mention the point about university students. He was saying that if we want to evaluate the policy we have to do so over a longer period. He absolutely knows what he is talking about. What does the Minister have to say to Richard Lambert, and how comforted is he by the evaluation, with the deficiencies that we say we have identified?
James Brokenshire
I do not accept the point about deficiencies. The evaluation speaks for itself. The evaluation’s overall framing—the terms and the different natures of the multiple methods that we used—was constructed alongside the landlords panel, which has representatives from a number of landlord groups, from charities and voluntary sector organisations, and from the university sector. I recall discussions with all those groups, taking them through the way in which the evaluation was constructed. That construction led to the results we have before us. It reflected points made to us. The evaluation was not deliberately constructed so as to find a favourable response—the rigour of Home Office science would have ensured that that was not the case. That is how I would respond. We judged that there should be a six-month period. We had the input of various different groups to assist us in framing the evaluation’s terms and the manner of its conducting. In my judgment, the evaluation can be relied on so we have decided to extend the right to rent scheme further beyond its first phase.
Paul Blomfield
I thank the Minister for his generosity in taking a number of interventions. This is an important issue that we need to bottom out. I accept his last point about the evaluation. We may have a slightly different view on it, but he feels that we could rely on the conclusions of the evaluation. May I, then, draw attention to the comments on page 24 of the evaluation, which does accept the risk of discrimination? He referred earlier to focus groups, and that risk was identified in those groups. The document refers to
“attitudes towards potential tenants with time-limited leave”
to remain,
“with one apparent instance of a tenancy being refused for this reason”.
It also refers to
“a preference for tenants whose right to rent was seen as easy to check”
and
“a preference for ‘lower risk’ tenants…for whom landlords felt they did not need to carry out a Right to Rent check.”
Those references are from the Minister’s own evaluation, pointing to precisely the risks that we are identifying, so if he is relying on his evaluation, is not the conclusion that the provisions of the legislation will lead to discrimination? That is what the Home Office evaluation says.
James Brokenshire
The hon. Gentleman points to a single comment. I say to him that that underlines to me the further need, as we implement further, to underline the guidance that is there and the different steps that were taken. Equally, I point him to the mystery shopper work, and not just the numbers, because it was a blend of the quantitative and the qualitative. There are two elements to this. That is why, when we look at this in the round, the steps that were taken and the multiple different approaches that were taken in the evaluation were right and important.
On the mystery shopper work, what is interesting is that it says, importantly, that none of the BME mystery shoppers felt discriminated against as a potential renter in the 166 paired encounters that took place during the research project. BME mystery shoppers received a more positive reception to their rental inquiries from agents and landlords than their white counterparts across both phase 1 and comparator locations. BME shoppers were in fact more likely to be offered a property viewing in the phase 1 locations.
It is the mixture of the different evidence that leads to the conclusions set out in the evaluation. But do there remain issues about discrimination? Yes, and I have already said that. That is as relevant in one area as it is in another, sadly, and we need to continue to confront it. I suspect that I have strayed, Mr Bone, into some of the later debates. I know that there is a debate coming up on an amendment that the Opposition tabled. We may have got into a lot of the detail of that debate already, but it underlines to me why our judgment is that we should proceed—why this criminal offence is appropriate.
In the light of my comments, I hope that the hon. and learned Gentleman will withdraw the amendment.
The Chair
Before we hear from Mr Starmer, I just point out that the interventions are quite long. I know that this is a difficult Bill and sometimes they have to be long. I will be understanding on that, but we are on occasion straying slightly wide of what we should be debating, so I hope that, as we move through the Bill, we will be a bit more concise. The courtesy shown by the Minister to the hon. Member for Glasgow North East was very kind, because I can remember an occasion when he was sitting there many years ago and was called the hon. Member for “Brockenshire”.
The Chair
No, there are no more votes yet, because we have not reached the amendments. To explain to new Members—and apparently to some older ones: we discuss amendments grouped together when relevant, but we can vote on them only when we reach them in our consideration of the Bill.
James Brokenshire
I beg to move amendment 12, in clause 12, page 10, line 26, leave out “33C (offences: landlords and agents)” and insert “33E (offences and eviction)”
Transitional measures in the Immigration Act 2014 limited the right to rent scheme to tenancy agreements entered into after the right to rent scheme had been commenced. This amendment clarifies that these transitional measures do not apply to sections 33D and 33E inserted by the Bill.
The Chair
With this it will be convenient to discuss Government amendments 13 and 14, and 17 to 21.
James Brokenshire
As always, Mr Bone, I thank you for the clear guidance you give in chairing the Committee.
Amendment 12 would prevent the transitional provisions in the Immigration Act 2014 from applying to the new clauses on evictions and offences. Amendment 18 would make it clear that the measures on landlords obtaining possession of their properties would apply regardless of when the occupancy or tenancy agreement was entered into. Amendments 13 and 14, and 17 to 20, would provide that any reference to a landlord under the Bill would mean any landlord, where there are joint landlords; and amendment 21 is a minor drafting change, the better to reflect the terminology in the Rent Act 1977. I suspect that the hon. and learned Gentleman may want to make some comments.
Keir Starmer
In relation to amendment 12, the Minister has no doubt seen the letter written to him by the Residential Landlords Association on 23 October, which says:
“The effect of amendment 12 will be that all existing tenancies in the private rented sector will now be covered.”
It then spells out what it sees to be the consequences of that:
“The threat of substantial fines or potential imprisonment will cause a great deal of concern for all law-abiding landlords who constitute the vast majority. They will want to be completely certain that those residing in their rental properties are legally entitled to do so. The only way of doing this, and to avoid accusations of discrimination, will be to check the documentation of all their tenants, whether they are UK nationals or not.”
The Residential Landlords Association is concerned that the likely response to the provision is that all law-abiding landlords will want to carry out checks for themselves on date X, when it comes into force. It then spells out the implications of that. First, the provision will place a huge burden on landlords—particularly those with multiple properties, who will have to contact each and every tenant to carry out the check. Secondly, it is concerned that
“the structures in place to provide support to landlords, unless properly resourced, will not cope.”
It references a response to a written question tabled by the hon. Member for Paisley and Renfrewshire North. It says that the Minister
“indicated that there are just 2 full time equivalent members of staff handling incoming calls to the landlord helpline.”
It then points out the potential for chaos. It cites the 2011 census figures, which show that
“16.5% of tenants in private rented housing do not hold any passport”.
The Residential Landlords Association’s big concern is that if amendment 12 is agreed to, many, if not the vast majority, of landlords will want to carry out checks on the day that the provision comes into force. That is a huge national exercise, way beyond anything that happened in the pilot or anything that would constitute the exercise if only future tenancies were included.
The Residential Landlords Association raises the concern that the provision will lead to some unjustified convictions where documentation is not easily to hand. As it says, 16.5% of those in the rented sector do not have passports. It also points out that many landlords, having done the checks, will feel compelled to report to the Home Office anybody they feel is of concern to them, which could be many thousands of individuals. It asks for two things—first, a simple, readily identifiable document that it can use; and, secondly, for the Government to outline what plans they have to increase the resources available.
There are very big concerns in the relevant sector about how the provision will work. There is a trigger date and, if the Residential Landlords Association’s analysis is right, landlords will not feel comfortable sitting back and waiting until each tenancy comes to an end. They will feel compelled to carry out the necessary checks. As it also points out, if a landlord is served with notice by the Secretary of State in relation to an existing tenant—a tenant whom they were not required to check on at the outset, which knocks out one of the points made in an intervention this morning—they become criminal from that date onwards, notwithstanding the fact that when they took on the tenant they were not required to carry out a check, and until they got the notice from the Secretary of State they would not have known that there was anything wrong with the tenant’s status. If ever there was a glaring example of why the vote on the defence that has just been taken was wrong, this is it. A landlord who has had a tenant for many years and was not obliged to carry out a check, can potentially receive a notice from the Secretary of State, which will be the first the landlord knows that there is anything wrong with the tenant’s status, and immediately become a criminal, with no defence.
The Residential Landlords Association has raised serious concerns that require, at the very least, a high level of reassurance. How does the Minister see things operating in practice? Is he saying to law-abiding landlords that they should sit back and not bother checking? Is the message that, notwithstanding the provisions, they are perfectly entitled not to check? That would give them a level of reassurance. If they feel that they ought to check, will there be adequate resources to enable them to do so properly? They are deeply concerned. Does the Minister see any merit in their concern that once they are notified by the Secretary of State they become criminals? On the face of it, that would be unjust and unfair.
Chloe Smith (Norwich North) (Con)
I want to make an extremely short point in support of the clause. There is a strong argument for having new offences to target rogue landlords and agents who deliberately try to exploit others and who, in doing so, reduce the extent of housing stock for those who do have the legal right to be in this country.
Will the Minister help me on a point of detail? On page 6 of the explanatory notes, paragraph 13 states that the intention is
“to target those rogue landlords and agents who deliberately and repeatedly fail to comply with the right to rent scheme or fail to evict individuals who they know or have reasonable cause to believe are disqualified from renting as a result of their immigration status.”
Will the Minister explain how the nature of a repeated misdemeanour comes through in the Bill? Repeated failure to comply is a strong argument for ensuring that we have adequate legislation to combat such practices.
James Brokenshire
I appreciate the hon. and learned Member for Holborn and St Pancras raising the concerns of the relevant landlord body. A number of things flow from the provisions. I do not accept that the clause will trigger some form of requirement to check retrospectively. As I highlighted in an earlier contribution, the point is that the offence under what would be new section 33A of the Immigration Act 2014 will be triggered on two conditions: first, that the premises are occupied by an adult who is disqualified; and secondly, that the landlord knows or has reasonable cause to believe that the premises are occupied in such a way.
We come back to the previous debate on the distinction between nuisance and the higher standard that will be applied for the new offence. I do not share the Residential Landlords Association’s view and will certainly respond to it in clear terms. I know that the RLA has consistently voiced concerns about the right to rent check scheme and how this matter might present itself in the west midlands. I welcome the contribution it continues to make through its support and input to our landlord panel, but I must underline that its interpretation of the provisions in the Bill extends them in a way that is not intended.
Keir Starmer
I want to clarify this. I accept that there is no requirement to check—that is not in the Bill and I do not suggest that it is. Is the Minister saying that because landlords would have to have knowledge or reasonable cause to believe, they should not ask any questions? In other words, “Don’t ask. Don’t put yourself in a position to know and you’re perfectly safe.” Is that the message to landlords? They are concerned that they should ask so that they are regularised and within the law. I have already made the point about there being no defence if they are served. Is the Minister saying to landlords, “Sit back. Don’t ask. Don’t find out, and you won’t be caught by the knowledge provision”? That is an odd message to send.
James Brokenshire
I take the hon. and learned Gentleman back to the second condition. If a landlord has reasonable cause to believe, it may trigger that requirement. If, in some way, a landlord has turned a deliberate blind eye, or if they have somehow rented property to someone whom they know or suspect to be in the country illegally, it would potentially trigger the offence under proposed new section 33A(3). The two mechanisms will apply. From an enforcement standpoint, it is right that the legislation is framed in that manner. As he accepted earlier, the legislation will also address those egregious situations in which someone is renting out property in an appalling condition to people who are effectively in the country illegally. In essence, such landlords are exploiting them, which is why the offence should apply in those circumstances. That is the intention behind the clause, and it is why it is right for the offence to be framed in this way.
I will write back to the Residential Landlords Association to underline the sense, purpose and nature of this clause and how it will operate in the manner highlighted by my hon. Friend the Member for Norwich North. The right to rent scheme has come in, and there have been serial breaches, which in many ways reflects our earlier debate on the closure notices and on rooting out rogue landlords in some of these serious and egregious cases. The Residential Landlords Association shares that intention, and I will respond to it in that fashion.
Keir Starmer
The Minister’s approach is based on the premise that, historically, landlords would have checked, whereas in truth they did not. I can understand the situation, because there have always been checks. A landlord may have been sailing close to the wind or never have been the sort of landlord to be trapped by this or any other scheme, but their concern is surely that they have never had to go through this process before. They have never asked these questions, so they do not know one way or the other. Is the answer to them, “Stay ignorant and you are safe”?
James Brokenshire
I come back to the two points that I have already raised with the hon. and learned Gentleman. There is no requirement to carry out additional checks. This is an offence that will have to be proved beyond all reasonable doubt in the normal way and satisfy the two conditions. I have highlighted the test that needs to be satisfied on the second condition. That is the standpoint from which I take it, and it is how we continue to judge that this is an appropriate mechanism to combat the rogue issues that I have highlighted.
I spoke about the notice triggering process in our previous debate and in response to other hon. Members. I will reflect on what has been said in this debate and in the previous debate, but I draw parallels with the provisions on illegal working. An employer will potentially be committing an offence once they are fixed with knowledge about their employee’s immigration status, but obviously they can remedy the situation, so there are parallels to be drawn with that regime. I have told hon. Members that I will reflect on those comments, and I will do so.
Paul Blomfield
I am struck by the Minister’s difficulty in answering my hon. and learned Friend’s question, which illustrates the potential grey area for landlords. Given that we are now creating an offence for which landlords could be imprisoned, will he outline in some detail what guidance he intends to give them to ensure that they respond sensibly and appropriately?
James Brokenshire
I will certainly respond to the Residential Landlords Association on the points that it raised. As I indicated, the intent and purpose behind the clause is that the offence is targeted, as the explanatory notes say, against those who are committing serial breaches of the right to rent scheme as well as at some of the egregious cases that I highlighted. Landlords conduct some checks; they might not be focused specifically on a tenant’s rights to be in the country or who they are renting their property to. Many use agents to conduct credit and other checks.
There is a sense that landlords in the rented sector will be vigilant. They have been or will be doing those general checks. The offence is only if they know or have reasonable cause to believe that someone in their rented property does not have the right to be in the country. We are setting a relatively high bar. We will give that clarity to the Residential Landlords Association and more generally to underline that that is the test that is being applied. I hope that, with those comments, the Committee will accept the Government amendments.
Question put, That the amendment be made.
James Brokenshire
Amendment 70 would defer the implementation of the measures in the Bill for two years and amendment 73 would require that the Government lay before Parliament a report of the likely impacts of the new measures. The Government have published both a policy equality statement and an evaluation of the right to rent scheme. Both are available in the public domain. For the reasons that we have debated previously, we judge that there is no good reason to delay implementation of the new measures.
On amendment 86, the Home Office takes seriously its responsibilities towards children, and the new measures take account of the need to be clear about when it is appropriate to serve notice on landlords in respect of illegal immigrant families. Clause 13 applies where all occupiers of the premises are disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement. In some circumstances, as with eviction for other reasons under housing legislation, that will mean that children are evicted along with adults in family groups.
The expectation is that persons who are in the United Kingdom without permission should regularise their position or leave. That applies to family groups as it does to individuals, but where families are involved, they will be offered advice and assistance in returning home and the Home Office will seek to engage the family in the family returns process. Families, as with other illegal migrants, will be given clear warnings that a failure to regularise their stay, to return home or to engage and co-operate with attempts to assist them to return may lead to the Home Office contacting the landlord and advising that the family may be evicted.
The measures make it clear that action can only be taken following service by the Home Office on a landlord of a notice or notices in respect of each occupier; those will only be issued when the Home Office is clear that all of the occupiers are illegal migrants and do not have the right to rent, and there is no bar to them leaving the United Kingdom. In serving a notice in respect of a child, the Home Office will have regard to its duty to safeguard and promote the rights of children. I made that point earlier. The measures also ensure that a landlord must provide at least a 28-day notice period, during which arrangements could be made by persons in the country without permission to leave the UK. Given the protections already in place, the amendment is unnecessary.
In response to the latter points made by the hon. Member for Paisley and Renfrewshire North, I do not accept or recognise a number of the assertions that he made. We remain conscious of the implementation of the right to rent scheme as we extend it out and, indeed, how we can ensure that we give clarity around the documents that might be required, in particular where someone might not have a passport or a driving licence. That is something we remain focused on in the detailed implementation of the scheme. The landlord panel is indeed actively assisting us with that.
Keir Starmer
I ask that we vote on the three amendments.
Question put, That the amendment be made.
Immigration Rules
James Brokenshire Excerpts(8 years, 6 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for Immigration (James Brokenshire)
My right hon. Friend the Home Secretary is today laying before the House a statement of changes in immigration rules.
The rules are being changed to make clear the circumstances in which we can withdraw refugee status and leave. The changes clarify terminology and make clear that refugee status can be withdrawn where evidence emerges that such status was obtained by deception or where it is clear that protection is no longer needed. It can also be withdrawn where someone commits a serious crime or is a considered a danger to our national security such that they do not deserve our protection and all the benefits that come with that status.
Existing provisions on the revocation of refugee status are also being extended to include those who instigate or otherwise participate in acts covered by article 1F of the refugee convention, including those who engage in extremist activities that represent a threat to our national security.
New rules are being introduced to make asylum claims from EU nationals inadmissible unless exceptional circumstances apply. Such claims are currently processed through the asylum system, which includes an interview and detailed written decision. This goes beyond our international obligations and there is provision under EU law to treat claims from EU nationals as inadmissible on the basis that member states are deemed to be safe countries. We need to do all we can to dissuade abusive claims and considering claims from EU nationals uses resources that I believe are better focused on those who genuinely need protection.
There is no right of appeal against a decision to treat a claim from an EU national as inadmissible. Claims that meet the exceptional circumstances criteria will still be considered but the onus will be on the individual to set out the reasons why their case is exceptional. Human rights issues raised through the appropriate application process will still be considered in accordance with our obligations under the Human Rights Act.
I am also implementing the changes to the English language requirements for settlement and citizenship announced in March. These changes will ensure that the same security assurances apply to English language qualifications whenever they are used in the immigration and citizenship system.
The statement also makes changes to the immigration rules on skilled work routes, administrative review and on family and private life.
[HCWS276]
Immigration Bill (Sixth sitting)
James Brokenshire Excerpts(8 years, 6 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 58, in clause 2, page 2, line 12, leave out paragraph (b) and insert—
‘(b) contains a proposal for the year to which the strategy relates setting out—
(i) how the non-compliance outlined in the assessment required by subsection (2)(a) (i) and (ii) is to be addressed,
(ii) how the threats and obstacles identified under subsection (2)(ia) are to be overcome, and
(iii) how the provision of remedies for victims of non-compliance in the labour market identified under subsection 2(a)(ib) is to be improved.’
To ensure that the functions of the Director of Labour Market Enforcement are exercised for the purpose of enforcing all existing labour market standards, rather than prioritising a limited number of areas, and to link the Director’s strategy with his or her assessment of non-compliance with labour market standards.
Amendment 56, in clause 2, page 2, line 24, leave out subsection (3) and insert—
‘(3) The proposal mentioned in subsection (2)(b) must set out the resources required to—
(a) address the non-compliance in the labour market,
(b) overcome the threats and obstacles identified under subsection 2(b)(ia),
(c) improve the provision of remedies for victims of non-compliance in the labour market.’
To oblige the Director of Labour Market Enforcement to provide an assessment of the resources required for effective labour market enforcement and remedies for victims, rather than simply to determine how currently available resources should be allocated.
Amendment 59, in clause 2, page 2, line 26, at end insert—
‘(3A) Nothing in the strategy shall—
(a) restrict, or
(b) reduce the resources allocated to
the labour market enforcement functions as defined in Section 3(2) of this Act.’
To clarify the relationship between the Director of Labour Market Enforcement and the UK’s existing labour inspection agencies, ensuring the current role, remit and resources of labour inspectorates are safeguarded.
Amendment 65, in clause 3, page 3, line 6, at end insert—
‘(da) ny function of the Health and Safety Executive and the Health and Safety Executive for Northern Ireland;
(db) any function of local authorities in relation to the “relevant statutory provisions” as defined in Part 1 of the Health and Safety at Work etc. Act 1973;
(dc) any function of local authorities under the Children and Young Persons Act 1933 and by-laws made under that Act, the Management of Health and Safety at Work Regulations 1999, and the Children (Protection at Work) (Scotland) Regulations 2006.’
To include the remit of the Director of Labour Market Enforcement to cover functions relating to health and safety at work and child labour, functions carried out for the most part by local authorities.
Amendment 66, in clause 3, page 3, line 12, at end insert—
‘(ca) Part 1 and The Health and Safety at Work etc. Act 1973;
(cb) Sections 3 and 4 and Part 2 of the Children and Young Persons Act 1933.’
This a consequential amendment to amendment 65.
Amendment 63, in clause 3, page 3, line 31, before “in this section”, insert “Subject to subsection 6A,”
Amendment 64, in clause 3, page 3, line 33, at end insert—
‘(6A) A person is not prevented from being a worker, or a person seeking work, for the purposes of this section by reason of the fact that he has no right to be, or to work, in the United Kingdom.’
To ensure that labour market offences committed against all workers are included within the scope of the Director of Labour Market Enforcement’s work, irrespective of immigration status (as under subsection 2 of section 26 of the Gangmasters (Licensing) Act 2004).
Amendment 62, in clause 4, page 3, line 42, leave out paragraph (a) and insert—
‘(a) An assessment of the extent to which the strategy developed under section 2 of this Act has—
(i) addressed the non-compliance identified under Section 2 (2)(a)(i),
(ii) improved the provision of remedies for victims of non-compliance in the labour market identified under 2 (2)(a)(ia), and
(iii) overcome the threats and obstacles identified under 2 (2)(a)(ib)”.’
To ensure the Director of Labour Market Enforcement’s Annual Report links with his or her assessments about non-compliance in the labour market (and assessment of the remedies secured by victims and threats and obstacles to effective enforcement).
The Minister for Immigration (James Brokenshire)
When we broke for our short adjournment, we were touching on the use of a particular term: we were looking slightly ahead to the use of the term “worker” in clauses 3 and 9. I want to ensure clarity about where that term is used because that may be informative to the Committee and perhaps help to narrow the debate and argument.
I assure hon. Members that the definition of worker in clause 3(6) applies only in one context, which is in respect of clause 3(4)(e)(i), which relates to sections 2 and 4 of the Modern Slavery Act 2015. The definition of worker in all other Acts in the director’s remit is unaffected. The hon. and learned Member for Holborn and St Pancras may find that and the context in which the definition applies helpful.
The definition of worker in the Employment Agencies Act 1973 is unaffected. The Employment Agency Standards Inspectorate will continue to take action against rogue employment agencies and businesses regardless of whether the worker is here legally or illegally. Similarly, the definition of worker in the Gangmasters (Licensing) Act 2004 is unaffected. The Gangmasters Licensing Authority will continue to take action against rogue gangmasters regardless of whether the worker is here legally or illegally. That matches the concerns raised in contributions this morning.
Furthermore, the definition in the National Minimum Wage Act 1998 is also unaffected. That will continue to apply only to legal workers—that is how it is framed. The provisions are about not extending rights to illegal workers, but bringing strategic oversight together under one person. We do not think it is appropriate to give illegal workers the right to the national minimum wage. Of course, the employer who employs an illegal worker and pays them less than the national minimum wage will still be committing an offence under section 21 of the Immigration, Asylum and Nationality Act 2006, which comes with a higher penalty. The Bill also includes measures to enable us to take a tougher enforcement approach to employers of illegal workers, including increased prison sentences if they employ people whom they know or reasonably suspect are illegal workers.
The definition of worker in clause 3(6) has no effect on section 1 of the Modern Slavery Act 2015. All offences of slavery, servitude and forced or compulsory labour will be within the director of labour market enforcement’s remit, because it would be illogical to exclude those forced to work from the director’s purview. Indeed, all offences of trafficking under sections 2 and 4 of the Modern Slavery Act that involve slavery, servitude and forced or compulsory labour will also be within the director’s remit.
The definition in clause 3(6) also has no effect on the trafficking offences criminalised by sections 2 and 4 of the Modern Slavery Act. The only effect the definition has is on which type of trafficking offences are in the director’s remit. Offences involving sexual exploitation, removal of organs, securing services by force and securing services from children and vulnerable persons will be in the director’s remit only if they relate to workers or work seekers provided for in the definition—legal workers. It will still be an offence to traffic an illegal worker for any of those purposes, but we do not think it appropriate for that to be in the director’s remit. Instead, such offences will be dealt with by the police and the National Crime Agency. All modern slavery offences will be in the Independent Anti-slavery Commissioner’s remit.
As I explained before, the definition is not about granting new rights or curtailing offences. It is simply about creating the right remit for the director of labour market enforcement, which I believe the clause does. We are clear that the remit provides the director with the ability to tackle the broad spectrum of labour exploitation, from non-compliance to the most serious harm against workers.
I recall the comment I made earlier about the relationship between the commissioner and director, where the commissioner will effectively have that oversight role. Therefore, we believe that that will lock things together in a clear fashion.
I appreciate that this has drawn us into something more technical than contemplated at first sight by the amendment. I hope, for the sake of clarity, I have spelled out the context in which the definition is used.
Paul Blomfield (Sheffield Central) (Lab)
I am grateful to the Minister for giving way and for the statement he has just shared with us. I am not absorbing its detail as quickly as I would wish; perhaps we can find a way to reflect on it before we reach a final view.
Notwithstanding the points the Minister has made, the concern remains that we are in danger of including only offences committed against workers as defined in the Employment Rights Act 1996, that is, those with a valid contract of employment, so by definition, regular migration status. Although we are trying to achieve the same objective here, the provision might risk leaving the director powerless to investigate trafficking in the very sector of the labour market—illegal working—that the Bill is designed to target.
As the Minister indicated, this is about not conferring new rights on workers, whether in relation to the national minimum wage or whatever, but ensuring that the director can cover all the listed offences, no matter against whom they are committed. As it stands, the clause is potentially in violation of article 3 of the European convention on action against trafficking in human beings, which guarantees the provisions of that convention, irrespective of national origin.
I take it that the purpose of clause 3(4)(e)(i) is to narrow the remit of the director so that he or she covers human trafficking offences only for labour exploitation, as opposed to sexual exploitation or organ harvesting. In that case, subject to reaching agreement on the position in our amendment, the Minister would have our support. The way the clause is currently drafted seems to exclude human trafficking of illegal workers from the remit. Further confusion is created by including human trafficking offences committed against “a person seeking work” in the director’s remit. We just need a bit of time for reflection on that, if the Minister would agree.
The Chair
Before the Minister answers, these are detailed and complex matters, which is why I am allowing the interventions to be relatively lengthy. I would not normally stand for an intervention that long, but I will because it is on a technicality. Do not think, ladies and gentlemen, that you will get away with it later.
James Brokenshire
I am grateful to you, Mr Bone. It is important on these points of detail where issues have been raised that we try to give clarity in Committee. I entirely understand your ruling; as always, the Chair is entirely sensible.
In response to the hon. Gentleman, when he reads the record of what I said—as I know he will as he is assiduous and focused on getting things right—I hope he will see in the explanation the distinction we are drawing between labour market and what is straying beyond labour market issues, and why we have drawn the provision that way.
I apologise for straying slightly, but clause 3(6) links to the amendment and it is appropriate to comment on the point now. This definition of “worker” is used only once in the context of clause 3(4). I will reflect on the drafting of that, since we are clear on the intent and how it works through. The intention is not to imply or impute any limiting of that definition into the other provisions listed in clause 3(4). That is not the intent and hence my comments. Without any commitment, I will certainly look at the wording of that to satisfy myself that it does not give any wrong impression. As I have said, that is not the intention.
Keir Starmer (Holborn and St Pancras) (Lab)
Thank you, Mr Bone, for your indulgence on this. I want to make sure that we have got the point right, because it may be that the area of dispute is considerably reduced. I am grateful to the Minister and the team that has been behind him over the last hour and a half for this clarification, which really helps. As I understand it, the definition of “worker” in clause 3(6) is limited for the purposes of this measure alone and therefore does not affect anything beyond it.
Keir Starmer
That removes one concern, so I am grateful for that clarification.
As far as clause 3(4)(e) is concerned, what is being said is that the offence itself is unaffected by any definition; it only goes to the remit of the director. Again, that removes a concern. Therefore, the only remaining concern is that the director has a remit only over certain types of worker for the offences in clause 3(4)(e), as I understand it. The Minister put forward a reason for that—just to make sure I have understood that. I am not sure how it works in a Committee such as this, but I wonder whether it is possible to have that in some written form over and above what the Minister has said already, which I know will be on the record. It is critical to the international obligations and how other people will look at this and understand it. I am grateful for the clarification.
James Brokenshire
I am grateful for the way in which the hon. and learned Gentleman has raised the matter. If it helps the Committee, I will be happy to write to him to set out what I have said and give that clarity in context. I get the sense that the issue on these provisions is perhaps narrower than it may have appeared at first sight. It relates to the way the provision operates within the Modern Slavery Act itself and the way in which the term “worker” is used within that. It is perhaps not even as complete as he was suggesting in that context. Given this is quite a narrow, technical, but important point, I think it will probably be helpful if I write to him to set that out in further detail. It would be open to him to reflect on that as we look towards Report.
The Chair
Could you write to the Committee, too, and we will circulate it? Then every Member will have it.
James Brokenshire
Of course. It is important that all Committee members see that, so I am happy to undertake to do that.
Various comments were made about the Gangmasters Licensing Authority and prosecutions and investigations. Over time, the GLA has undertaken a number of more complex investigations that focused more effectively on serious and organised crime. I think that reflects a targeting and risk-based enforcement approach by the GLA. Only one GLA-initiated prosecution has ever failed to return a conviction. This year alone, the GLA has undertaken 92 investigations—already more than the 72 undertaken in 2014 and its highest since 2011. During that time, the GLA also secured four prosecutions of unlicensed gangmasters, with the same number last year. That demonstrates that the GLA continues to be capable of targeting rogue gangmasters effectively. That is why we see it as an important component of the director’s new remit to tackle labour exploitation. We are reflecting further in relation to the GLA as part of the consultation, albeit that that strays wider than the group of amendments we are debating today.
On the labour market consultation, I mentioned this morning that we have announced today that the consultation has been extended. It now closes on 7 December, rather than 9 November. As I said, I hope that that will give further opportunity for interested parties to feed in and ensure that this is understood and well-reflected.
James Brokenshire
As the hon. and learned Gentleman highlighted, the amendment would require the director of labour market enforcement to engage with civil society in developing the enforcement strategy provided for by the clause. I sympathise with the intention behind the amendment, but it is not necessary or, for the reasons highlighted by my hon. Friend the Member for Norwich North, workable in its current form.
The hon. and learned Gentleman rightly highlighted the consultation that we are undertaking, and he read out the relevant part, about our expectations regarding stakeholder engagement. It is right that the director should speak to a range of people—the widest range of sources—to identify the scale and nature of non-compliance in the labour market. That will include securing information from the information hub we will consider when we reach clause 6, but it will rightly also include engaging non-governmental organisations, bodies representing employers and workers, and other organisations to develop the fullest picture.
The consultation published on 13 October contains more information on how we envisage the relationship working. We will flesh that out further in the light of the views received in response to the consultation. I want to see what the responses look like before we reflect on whether anything further needs to be undertaken.
The director will play a leading role publicly in bringing greater co-ordination and coherence to the enforcement of labour market legislation. The strategy they produce will be public, so I have no difficulty in principle with their consulting civil society in developing it, however that may be framed or defined.
Sometimes, when we go into legislation, we can close things off, rather than opening them up. We need to define things in a very legalistic way, and the issue is how we can properly give effect to the desires in the consultation document. I do not want to risk creating unnecessary scope for legal challenges to be brought against the director or, bearing in mind the legalistic approach we have to take, closing things down.
I do have sympathy with what the hon. and learned Gentleman said, and I will obviously review the responses to the consultation. With that reassurance about how we are approaching the issue, however, I hope he will be minded to withdraw the amendment.
Keir Starmer
I am grateful to the Minister for that reassurance, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
James Brokenshire
I intend to speak only briefly because we have had quite a wide-ranging discussion of the priorities for enforcement and the outcomes required from the enforcement bodies, which the director will be looking for in the strategy, as well as a number of other themes relating to the nature of the director’s operations, which we touched on in the group of amendments before last. Crucially, the strategy will be evidence-based. It will contain the director’s assessments of non-compliance in the previous year—points were raised about that in previous debates—and predictions for the next two years, based on information drawn from a range of sources, including the three enforcement bodies, other Government bodies and civil society organisations. That will allow the plan for the coming year to be based on where non-compliance is most likely to occur and to cause harm. It will be subject to more public involvement, and the strategy will be published in the way I have outlined. I trust that the Committee will support the clause.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Non-compliance in the labour market etc: interpretation
Question proposed, That the clause stand part of the Bill.
James Brokenshire
We have had a detailed debate on one aspect of the clause, which I will not go back over.
The clause defines certain aspects of the operation of the director, highlighting the three enforcement bodies that fall within their remit. We want that remit—what they consider in their assessment of non-compliance and their strategy for addressing it—to include the work of the three bodies on non-compliance and the offences they enforce, and to capture the most serious end of the exploitation spectrum. We also want the director to inform his or her strategy by consideration of the rate of instances of slavery, servitude, and forced or compulsory labour as defined by the Modern Slavery Act 2015.
We see the director’s role as focused on labour market offences and therefore distinct from the role of the Independent Anti-slavery Commissioner, upon which we have touched in preceding debates. We have therefore limited the remit to where offences relate to work. As I have said, I will write to the Committee on that particular point.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Annual and other reports
Question proposed, That the clause stand part of the Bill.
James Brokenshire
The clause requires the director to produce an annual report at the end of the year. That complements the director’s strategy by requiring them to set out their assessment of how labour market enforcement functions have been carried out during the year and the impact of that activity. It provides accountability for the director and an independent assessment of the enforcement body’s work.
The clause also allows the director to make reports throughout the year if needed. That is an important point. Ministers may wish to ask the director to report on the causes of a new, evolving challenge in fighting labour market exploitation—for example, if the rate of phoenix companies perpetrating exploitation were to grow—or to consider an issue in greater depth than the annual strategy permits, such as the effectiveness of penalties as a deterrent to employers. The reports will add to our understanding of how to tackle exploitation and, ultimately, will make us better equipped to stop it.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5
Publication of strategy and reports
Question proposed, That the clause stand part of the Bill.
James Brokenshire
The clause requires the Secretary of State to lay before Parliament any strategy or report produced by the director, to provide transparency and accountability for the director’s role and to inform Members of the House. As I have indicated, we want the director to be a visible leading figure. Laying their reports before Parliament in a very public way will inform debate. It will also allow for greater scrutiny and accountability for Ministers on the performance of the three agencies, and on how the director’s function is working and operating, and why it is framed as it is.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clause 6
Information hub
Keir Starmer
I beg to move amendment 61, in clause 6, page 4, line 31, after “market” insert
“to facilitate the labour market enforcement functions as defined in Section 3 of this Act”.
To prompt debate about the information hub proposed in Clause 6 of the Bill.
We have tabled the amendment to prompt a debate exploring how the information hub will work. We welcome the co-ordination and joined-up thinking that the hub will bring about, we hope, for the director of labour market enforcement, as that will lead to better enforcement. We raise the question against the backdrop of concern expressed earlier about the overlap between immigration enforcement and labour market standards enforcement, which brings the information hub into sharp focus. Page 23 of the consultation document states that the information hub
“will gather available data from the labour market enforcement bodies and other sources, such as Immigration Enforcement, the police, NCA, HSE, local authorities and the voluntary sector”,
which is a wide range of information.
James Brokenshire
As the hon. and learned Gentleman has highlighted, the amendment seeks to clarify the role of the proposed information hub. In our ongoing consultation on tackling labour market exploitation, we set out the intention behind our proposal for an information hub, which is to
“inform and support delivery of the Director’s strategic plan”.
The hon. and learned Gentleman highlighted the relevant section in paragraph 71 of the consultation document. We will continue to reflect on that as we receive submissions in response to the consultation.
I stress that there is already close co-operation between the different labour market enforcement bodies, often in tackling abuses. However, that is sometimes impeded by barriers to sharing data and because the bodies cannot share data. The clause therefore gives the new director the responsibility to lead an information hub, which will form a coherent view of the nature and extent of exploitation and of non-compliance in the labour market.
The director will use the hub to formulate the strategy. The information hub will gather available data from the labour market enforcement bodies and other sources, such as immigration enforcement, the police, the National Crime Agency, the Health and Safety Executive, local authorities and the voluntary sector. The hub will analyse information and develop a much richer picture of the nature, extent and impacts of exploitation in the labour market. It will identify where workers are at risk of abuse and use that information to formulate the enforcement strategy. It will also provide tactical intelligence to the enforcement bodies for use in targeting their enforcement activity. The hub is intended to help strategically and tactically. It will be able to assist in the tasking of operations and to see and understand what practice might inform strategy. It will assist in the promulgation of good practice and in employers fulfilling their duties and responsibilities.
The hon. and learned Gentleman highlighted resourcing. Resources will be provided by the Secretary of State and may include officers from the enforcement agencies, their parent Departments and the wider law enforcement community, so there is that sense of people, as well as of how data are provided and linked. We are giving further consideration to how things would work practically and who would be involved, but in fairness we also want to allow the consultation to inform further development. I am highlighting the nature of what we envisage that the hub will provide—a centre for the sharing of intelligence and data to inform the director and to inform, potentially, the tactical response.
Paul Blomfield
I reassure you, Mr Bone, that this is a brief intervention. I thank you for your indulgence earlier; I thought that that was an important point that needed to be resolved.
On the question of funding, the Minister spoke earlier about the integrity of the budgets of the three separate agencies over which the director of labour market enforcement will have strategic overview. He pointed out that the agencies sit within individual Departments. He is obviously right—we agree—that data sharing and better use of data are critical to the effective development of the role, but that will presumably require, apart from people pooling, some additional resource. Is he saying that that resource will not be drawn from any of the three existing budgets and will, therefore, be found by the Secretary of State as an additional support?
James Brokenshire
Matters of resourcing, and indeed the support that the director will require, are under careful consideration by Ministers. They are working on the recruitment of that individual and how that office will operate and be resourced. I would certainly wish to reflect further on the consultation, given its focus on the role and after hearing views in the debate on this Bill. We have not made final decisions about budgets or staffing—those decisions will be taken once there is agreement on the role and following the spending review. Clearly, the operation hub as part of that activity will be part of the overall examination of what is appropriate.
It is right that the consultation seeks views on the need for powers to share data and intelligence across the enforcement bodies and with other organisations. We are consulting a range of partners within and outside Government to understand what information they hold that might be of use to the director in designing the strategy to tackle performance and non-compliance and building the hub itself. We want to reflect further on how the hub is established, given what I have said about resourcing, the nature of the people who might need to be part of it, who would add the most value, and connections with different agencies. We have set the framework for this and I think that I have clearly set out the intent and what we wish to achieve. In implementation, we will certainly reflect on the further submissions received and the comments that have been made.
Sarah Champion (Rotherham) (Lab)
This really is not meant to be a difficult question. The Minister is putting a lot of weight on the consultation, as we are. Is there not the facility to pause proceedings on the Bill so that the findings of the consultation can actually affect the Bill and we achieve the best legislation, which is what we all want?
James Brokenshire
No, the provisions of clause 6 state that the director must gather, store, process, analyse and disseminate information relating to non-compliance in the labour market. It is important that we provide this statutory mechanism. Equally, in terms of further development and implementation, it is not appropriate for us to legislate while constantly taking into account further submissions. I do not think that that cuts across the need for clause 6 or the manner in which the labour market enforcement director would conduct his duties. I do not see them in any respect as being at odds. I hope that in the light of those points the hon. and learned Gentleman will be minded to withdraw his amendment.
Keir Starmer
I am grateful to the Minister. As I said, the aim of the amendment was to enable us to understand better how the hub would work and be resourced. On that basis, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 ordered to stand part of the Bill.
Clause 7
Restriction on exercising functions in relation to individual cases
Question proposed, That the clause stand part of the Bill.
James Brokenshire
Clause 7 prevents the director getting involved in individual cases. This is to allow the enforcement bodies to preserve their operational independence, a theme that was also highlighted in earlier contributions on the Bill. It is not appropriate for the director to have the power to influence decisions about the enforcement action to be taken against individual businesses. However, the clause allows the director to consider individual cases where these provide useful information in relation to general issues and to inform the director’s strategy or other work. Sometimes the individual parable, or the experiences of an individual can be important to understanding the reality of the abuses that take place. It is in that context that the clause has been introduced; we do not seek to encroach on the operational independence of other agencies in pursuing cases against particular employers or in particular circumstances.
Keir Starmer
I have, as it were, a genuine question; perhaps assurance on this will do the trick. At the moment, clause 7(1) would prevent the director making a recommendation after completion of a case, whatever legal proceedings were contemplated. Therefore, it may be over-narrow. In other words, the director may see a completed individual case and want to make a recommendation about whether it was good, bad or indifferent.
I can see the point in a provision that prevents interference in ongoing proceedings or the carrying out of functions by other bodies. A simple assurance or explanation may help, but at the moment the clause may be read as preventing a recommendation after the event about a particularly good way of doing something or a problem that needed to be avoided in future.
James Brokenshire
It will be open to the director, in looking at individual cases, to make broader recommendations on strategy or the manner in which agencies conduct their duties. We have to be careful, which is why we have structured the director role in this way, that there is operational independence for each of the agencies to pursue a case using their expertise and their chosen manner.
The position is more strategic. The director should not be drawn into how an agency should or should not have acted in a specific case. It is still open to the director to look at individual circumstances and cases, hence my earlier comment, and to make recommendations for the future. I do not think that that strays in relation to the language that we have here, into making a recommendation in an individual case; that would be to second guess the operational thinking of the different agencies. That is the intent behind the drafting, and I hope that is helpful.
Question put and agreed to.
Clause 7 accordingly ordered to stand part of the Bill.
Clause 8
Offence of illegal working
Keir Starmer
I beg to move amendment 68, in clause 8, page 5, line 6, after “if”, insert “without reasonable excuse”
To provide for a defence against the offence of illegal working.
We have reached an area in the Bill on which there is greater disagreement. We welcome the provisions that bear down on employers who exploit employees. That is in keeping with our welcoming of the director of labour market enforcement. However, we have considerable difficulty with the notion of creating an offence that can be committed by employees, which is strict and without any defences.
I begin by drawing the Committee’s attention to the baseline evidence from the Migration Advisory Committee 2014 report, which makes a number of comments pertinent to clause 8. It says:
“The combination of non-compliance and insufficient enforcement can lead to instances of severe exploitation, particularly of vulnerable groups such as migrants.”
That same 2014 report records the Committee’s research on labour market exploitation of migrant workers in particular:
“We were struck on our visits around the country by the amount of concern that was expressed by virtually everyone we spoke to about the exploitation of migrants in low-skilled jobs…The TUC told us that migrants, particularly from lower income EU accession countries, are often likely to take up low-skilled work, partly due to the nature of the labour market but also due to the labour market profile of such migrants.”
A little later the report says:
“During our visits to places which had experienced relatively high levels of migrants the point that migrant workers are more likely to be exploited than resident workers as they are not aware of their rights and are afraid they may be sacked/evicted/deported if they complain was raised on a number of occasions.”
The Committee cites its meeting with the Equality and Human Rights Commission, which
“expressed the view that migrant workers, and especially agency workers, were more likely than resident workers to put up with poor working conditions and bad treatment by employers because they were not aware of their rights, they do not know who to complain to and are scared that if they do complain they could lose their job. The EHRC said it is often better for a migrant to be in the UK with a job, albeit a low-paid one, than in their home country without a job.”
James Brokenshire
To understand the hon. and learned Gentleman’s logic and thinking, is he arguing that some offences that already exist for people who have entered the country illegally should be done away with? If I follow his line of argument, he is saying that any criminal offence is problematic and should not be there.
Keir Starmer
I am grateful to the Minister for that intervention. No, I am not going that far. Those offences are on the statute book. They are much wider than offences in the working environment. I am starting from the proposition that this group of people has been recognised as the most vulnerable and exploited in the workplace, and the least likely to be able to come forward and explain what has happened to them.
The Minister raises a different point, which is that it is often thought—I certainly think this—that new criminal offences should not be introduced in legislation unless there is a clear need for them and there is a gap in the current enforcement mechanisms that the new offence is intended to fill. For many years, there was criticism of Governments for simply introducing criminal offences as a response to a non-problem when there was no evidence of the need for the offence. This is an example of that. As we heard in evidence last week, the problem is the low likelihood of intervention, inspection or any enforcement action. There is no evidence that this offence, for employees, is needed. There are existing offences with which they can be charged. In those circumstances, the clause fails the fundamental non-immigration test that we should not be legislating to introduce offences when there is no evidence that the offence is needed because there has never been any evidence of a case where action could not be taken because the offence did not exist.
James Brokenshire
Following what the hon. and learned Gentleman is saying about offences, it seems that his principal point is about those who are vulnerable coming forward. That takes us into broader issues on the national referral mechanism and some of the steps we have taken through the Modern Slavery Act to shine a light. Our focus needs to be on those broader issues—if I have followed the line of his argument—on helping people to come forward. This offence would not have the impact that he is suggesting, because of all the other inhibitions about those who may be enslaving people and putting them in fear. Rather, we need to tackle the broader themes and help people to come forward, which is what the Government and Members across the House have rightly focused on.
Keir Starmer
I am grateful to the Minister. Of course, any measures to give people the confidence to come forward should be pursued. There would be general agreement about that—in particular, in relation to some of the offences we have been discussing. However, adding an offence when there is no evidence that it is needed simply makes a bad situation worse. If the Minister has evidence that anybody at all has ever said, “The problem here is that we haven’t got an offence for the employees”, I have not seen it and it has not been set out in any great detail.
Paul Blomfield
On amendment 68, I welcome the observations the Minister made in his latter comments. The Bill creates an unreasonable anomaly between the caveats it provides for employers and the absence of any for employees. As I understand it, under clause 9, employers are only guilty of the offence of employing an illegal worker if they do so “knowing” or
“having reasonable cause to believe”
that the person is an illegal worker.
We are saying to employers that there is a test of reasonableness before they are criminalised for the act of wrongful employment. The problem with clause 8 is that there is no such test of reasonableness. With the amendment, we seek to bring some equivalence between the way we approach employers and the way we approach employees by enabling them to be able to demonstrate “reasonable excuse” for the predicament in which they find themselves. Although I have reservations about the entire clause, were the Government successful in retaining it, I hope they would look generously on the amendment, which could provide that equivalence.
I have concerns about clause 8 more generally, as it criminalises the act of illegal working. I take the point made by my hon. and learned Friend the shadow Minister that we might disagree on this matter across the House. However, I do not think we need to. A number of us have said that we are at one on the objectives of the Bill, as we were with the Modern Slavery Act. In seeking to ensure that clause 8 does not stand part of the Bill, we are at one with the Government’s policy objectives of achieving effective labour market enforcement and, indeed, of combating modern slavery. Less than two years ago, in November 2013, the Home Secretary made combating modern slavery a priority. I do not have the experience that Conservative Members and, indeed, my hon. Friend the Member for Rotherham have of serving on that Bill Committee but I commend those who were involved on that legislation, just as I commend the Home Secretary on the priority that she placed on combating modern slavery. That aim won wide support, found expression in the Modern Slavery Act, and took us in the right direction. The problem with clause 8 of this Bill is that it risks undoing some of the good of the Modern Slavery Act.
I am sure that the Government do not intend to undermine their own legislation so soon after it has become law so I hope that the Minister will give serious regard to the points that we are raising in suggesting that clause 8 should not stand part of the Bill. I hope he recognises that if it does, slavery is more likely to thrive. I notice that he is shaking his head and I look forward to his response.
I put this to the Minister: what do we know? What is all the evidence clear about? I am happy for him to intervene if he disagrees, but all the evidence is clear on one thing. The more vulnerable workers are, the stronger the hand of the gangmasters or the unscrupulous employers who seek to exploit them. I am sure that the Minister agrees, as I notice he does not wish to intervene. Vulnerability plays into the hands of those who seek to exploit, such as unscrupulous employers. The more vulnerable workers feel, the less likely they are to come forward to report their abusers. Clause 8 increases that vulnerability and strengthens the hands of the gangmasters. I note that the Minister is again shaking his head. I would be happy for him to intervene if he can provide any evidence to suggest that that is not the case. When we took evidence from witnesses, we heard from many experts who said that this was the case; none said that it was not.
The clause, by threatening exploited workers with 12 months in prison if they are deemed to have committed the offence of illegal working, gives another crucial card to the suit of cards that gangmasters can play. It does not only affect those who have committed the offence of illegal working; it changes the psychology and relationship even between the employer and the employees who have not committed an offence. According to the National Crime Agency, in cases that it has taken up, 78% of those who have been exploited for their labour in the UK actually have the right to work here as EEA nationals. Rights awareness among those workers is low and their options are limited, which allows unscrupulous employers to hold the threat of removal over them.
James Brokenshire
I have listened carefully to the hon. Gentleman. In the example he just gave, he said that the individuals concerned had the right to work. How would they be caught under the clause if they would not be working illegally?
Paul Blomfield
I thank the Minister for that intervention because it gives me the opportunity to explain more clearly; I apologise if I did not do so before. The point I am making is that clause 8 affects those who do not have the right to work, because it criminalises them and makes it less likely that they will whistleblow and report their employers. Rights awareness is low, even among those who have the right to work here. We have seen various cases where exploitative practices have been blown apart. Part of the intimidation and the way in which employers were enforcing compliance was by cloaking a series of threats that did not apply in those cases. That is my point.
James Brokenshire
The hon. Gentleman makes an interesting point, but he seems to be articulating some of the broader issues that we know are redolent around slavery and trafficking, on debt bondage, housing, and physical enslavement. It is those threats and issues and the threat of deportation that might be more redolent in the examples that he has given, rather than law enforcement.
Paul Blomfield
I take the Minister’s point, but why give those who exploit yet another card to play? The threat of 12 months’ imprisonment and criminalisation is the card that will be exercised both in relation to those who have no right to be here, or to be working, and in relation to those who do.
Paul Blomfield
My hon. Friend makes exactly the point that I was seeking to make. Even where people have rights to work, the lack of rights awareness and the intimidatory relationship between exploiter and exploited make this another card to play. I see the Minister is still shaking his head. Even if we were to restrict the measure simply to those who did not have the right to work, we are still giving the exploiter another card to intimidate and therefore make it less likely that people would be willing to whistleblow. I am happy for the Minister to intervene on me. Perhaps he could illustrate the evidence that suggests the clause will be of assistance—not the intuition, the belief, the view, but the evidence.
James Brokenshire
The hon. Gentleman is encouraging me to intervene. I will take him through the logic as to why we think the clause is necessary. The interesting and thoughtful way in which he always presents his case identifies broader issues, and I do not see this offence changing the situation in the way that he says. The cases that he has enunciated and the evidence that the hon. Member for Rotherham highlighted show that in the majority of cases people did have rights and are not touched by the offence. The area is complex, and I know that the hon. Gentleman understands this. It is about the broader issues and themes that I touched on earlier.
The Chair
Order. Mr Blomfield, I have used that trick a lot of times, but, given that the Minister is going to speak and that some of the responses will have to be lengthy, the matter is not right for an intervention, so it might be better if the Minister deals with some of the issues in his remarks later.
Paul Blomfield
My hon. Friend will not be surprised to know that I agree. The quotation adds very much to the case that I seek to make; perhaps it makes the point more clearly than I was doing.
I want to move on and talk about international examples. I have challenged the Minister and I am confident that he will come back with examples later. I have challenged him to give comparisons, but let me share one that was shared with me yesterday when I met representatives of the Council of Europe convention on action against trafficking in human beings—GRETA. They shared with me the example of Italy. They had done some work and talked about the amendments made to the Italian Consolidated Immigration Act in 2002, the so-called Bossi Fini law, which was aimed at regulating migrant worker flows by introducing a system of entry quotas, and which was supplemented in 2009 by the criminalisation of irregular entry and stay. Their concern was that the requirements of a formal employment contract in order to obtain a residence permit exposed migrant workers who were already at risk of labour exploitation because of their irregular migration status. They were worried that irregular migrants would be afraid to report cases of exploitation to the authorities because they were concerned about being detained and expelled. The United Nations special rapporteur on trafficking in persons, especially in women and children, reported on the negative consequences of the criminalisation of irregular migration for victims of trafficking.
In response to points made to them by GRETA, the Italian authorities indicated that there were 14 convictions for trafficking in human beings in 2010 and nine in 2011. GRETA was concerned that those conviction rates were very low and urged the Italian authorities to strengthen their efforts to ensure that crimes related to trafficking were proactively investigated and prosecuted promptly and effectively. They asked the Italian authorities to study the implications of their immigration legislation, particularly the offence of illegal entry and stay. As a consequence, in January 2014, the Italian Senate approved Government measures to decriminalise those aspects of illegal immigration. They had recognised that the approach of criminalisation was not only unhelpful and policy-neutral but actively counterproductive.
James Brokenshire
I am interested in what the hon. Gentleman is saying, but does he accept that the approach of immigration enforcement in relation to those who have entered the country illegally and committed an offence is to deport rather than prosecute?
Paul Blomfield
I accept that it is to deport. Clearly, those who are here without rights, having exercised due process to establish whether they have a right to remain, should be deported. There is no disagreement on that, but does the provision of criminalising illegal working in clause 8 assist in that process or not? All the evidence seems to suggest that it will drive people underground, out of sight and make them less likely to whistleblow. That will frustrate the aspirations of the Government, with which we agree, to tackle both illegal working and its exploitation.
James Brokenshire
We have had a wide-ranging debate on clause 8 and the amendment tabled by the hon. and learned Member for Holborn and St Pancras. It is important to take a step back. In all the contributions to date, the focus has been on the victims of trafficking and the effects of it; I will come on to those issues in more detail. There has not been much focus on the impact of illegal working on the rest of the population. For example, an illegal worker in effect takes a job from someone who is here legally—people born in this country, or those who have gone through all the right routes to come to this country.
Sarah Champion
I could have used exactly that point in my argument, because it is the employer who makes the decision whether to employ the legal person or the illegal person. Why are we going after the illegal people when already, under section 24 of the Immigration Act 2014, we have the power to deport them? The Minister has cited other Acts under which we can deport. Why are we not punishing the employer who is wilfully employing illegal workers?
James Brokenshire
The Bill is doing both. It is taking steps in relation to employers and to employees, including with the overall enforcement approach. That is why I put things in that broader context. I will respond later to some of the specific questions on purpose, intent and how things fit in the overall deportation strategy. It is important to contextualise that so that the Committee understands the intent of the Government.
Anne McLaughlin
The argument I was making was not that we should allow people who are not permitted to work in this country to work in this country; my point was that those people are often the most vulnerable. A man who is fit and healthy and in his mid-30s might not appear to be that vulnerable on the face of it, but imprisoning him would not make him less likely to commit the offence—he was left with no choice—nor would it change his situation. My argument was not that it is in some way acceptable for people to lose their jobs because others are working illegally; I was arguing that the imprisonment aspect, the criminalisation, is not necessary and will make no difference.
James Brokenshire
I hear the point that the hon. Lady is making, although I do not want to get into the specifics of the case, as I am not entirely familiar with it, so it would not be appropriate or fair, for her or myself, for me to do so. In many cases, however, there is that choice of leaving the country. She might want to make a broader point about assisted voluntary returns and other means of appropriate removal, but that is the context for my arguments about the purpose of the clause and how it fits with other measures in the Bill to support the approach of discouraging people from coming to this country and to deal with some of the broader impacts of illegal working.
James Brokenshire
I will give way to the hon. and learned Gentleman, but I hope that the Committee will then allow me to articulate some of the broader issues that will help our debate.
Keir Starmer
I am grateful. The Minister talks about illegal wage undercutting. Professor Metcalf rightly said in his evidence that if more rogue employers were brought to task for exploitation, it would reduce illegal wage undercutting and unlock wealth creation by legitimate business by releasing them from unfair competition from exploitative rivals. We need to bring rogue employers to book for all the reasons that the Minister has set out, but our central point is that if we are to achieve that, it will be important that those who are being exploited feel able to come forward.
The evidence to date is that even for documented individuals, there is a huge problem, which I think is generally accepted. The next proposition—it will be interesting to know whether the Minister disagrees with the proposition—is that while we have a bad situation for documented workers, it is likely to be far worse for undocumented workers. What assurance can the Minister give that the accepted bad situation will not be made worse by these provisions and that, in the end, the goal of bringing more rogue employers to book will not be lost?
James Brokenshire
The hon. and learned Gentleman, perhaps understandably, given his perspective, is fastening on to this issue without looking at the broader context that I outlined. We can have a broader discussion about the national referral mechanism—we had such debates during our consideration of the Modern Slavery Act 2015—and elements that inhibit people from coming forward. More direct control is likely, as the hon. Member for Sheffield Central highlighted, because this is a complex arena. A debt bonder may wish to impose a number of different conditions and restrictions may be put in place. That goes to other issues such as confinement and the challenge of removal, rather than the legal issues that we are highlighting today.
I want to develop a point that I started in interventions on the hon. Member for Sheffield Central. Home Office immigration enforcement’s normal response, when it encounters illegal workers with no permission to be here, is to try to remove them from the UK as quickly as possible, which has to be the right approach. Action is also taken against non-compliant employers in the form of civil penalties or prosecution. We will come on to that in the next clause, although a strict liability approach is taken against employers under the civil penalty arrangements, so the prosecution element is added to that. That remains the right approach.
James Brokenshire
If I may, I would like to make a bit of progress.
We are also keen to take action in the Bill to address a genuine gap in the law that currently impedes the Home Office’s ability to address the economic incentives behind illegal work and impairs our clear message that those engaging in such activity should not profit from it. It is already a criminal offence to enter or remain in the UK illegally, as I have highlighted. However, migrants who require permission to be in the UK but do not have it, such as overstayers, may not be committing a separate offence of working illegally if they engage in paid work, including employment and self-employment. That is the gap for overstayers who go on to work. In other words, they have not come into the country illegally, so the courts do not always regard earnings derived from working illegally as the proceeds of crime when considering cash seizure or asset confiscation cases. The new offence tackles for the first time the difficult issue of those in self-employed occupations.
What is important in the context of the Bill is how the offence links to economic incentives and proceeds of crime legislation. As hon. Members will see, there is a specific reference to the Proceeds of Crime Act 2002 in the clause. I would articulate this as focusing on some of the economic benefits that might be derived. We think that there are benefits in how this is framed to assist immigration enforcement officers in their work, because they have identified this specific element in the course of their activities when seeking the removal of people from this country.
Paul Blomfield
It would be helpful if the Minister could tell us how many people fall into the category of those who are working illegally because they are overstayers. I anticipate that the number will be much smaller than the general figures. This is about balancing the impact on one group against the negative impact on another. Will he provide those numbers, both specifically and as a proportion of overall illegal workers?
James Brokenshire
The hon. Gentleman makes an interesting point, but as he will well know, one challenge that we have faced is understanding overstaying, which was why we introduced exit checks at the start of this year to identify more clearly patterns of behaviour, sectors and other elements that are relevant to those who are not overstaying the leave granted to this country. He asks me for information that is not currently held, and it is equally difficult to estimate the size of the population who are working illegally. I am sure that the labour market enforcement director will consider that when he examines the size of the problem in his reports to Ministers, but that does not undercut what immigration enforcement representatives say to me about the gap in the existing legal framework.
We need to ensure that there is an overarching approach on criminal law and, as I have said, there is a criminal aspect of people entering the country illegally. We are creating an additional offence for those who are overstaying, who are not covered by the existing criminal law. That means that they are not subject to proceeds of crime legislation, which is having the negative impact about which we have heard.
I share the concerns of the hon. and learned Member for Holborn and St Pancras about ensuring that an offence is used when circumstances suggest that it is the right approach. However, it is important to remember that individuals with an irregular immigration status will have committed a criminal offence under existing legislation by coming into the UK in the manner that I have described, regardless of whether they are working. Therefore, I do not accept arguments made about how the criminal law, or an extension to it in the form of the offence we are discussing, will make the situation more difficult, as has been suggested. However, there are some important points to which I want to respond, including what the hon. Member for Rotherham said about slavery and existing offences under the Modern Slavery Act 2015. She served on the Modern Slavery Public Bill Committee, so she understands these issues.
James Brokenshire
If I may finish this point, I will be happy to give way to the hon. and learned Gentleman.
The provisions of the Modern Slavery Act aim to encourage victims of modern slavery to come forward and give evidence, and to provide them with the confidence to do so, without fear of being inappropriately prosecuted or convicted. However, section 45 was carefully drawn to avoid inadvertently creating a loophole through which serious criminals could avoid justice, such as if they had been a trafficking victim at one point, but eventually became a member of an organised crime group and, motivated by profit, victimised others. There is always a balance to be struck, as was the case when framing the defence under section 45, and that balance applies to the defences that will operate under the Bill. This issue needs to be seen in that context.
As the hon. Member for Rotherham will understand—I know the hon. and learned Member for Holborn and St Pancras understands this, given his experience—the statutory defence acts as an additional protection on top of guidance from the Director of Public Prosecutions on whether prosecution is in the public interest. It is also in a court’s powers to stop an inappropriate prosecution for abuse of process. Although we need to think about the relevant section of the Modern Slavery Act, it is also important to bear in mind the DPP’s guidance. The normal decisions that the Crown Prosecution Service takes are equally relevant to these issues.
I said that I would give way to the hon. Member for Blackburn, so I will; I apologise for not doing so sooner.
James Brokenshire
As I have said, the primary response will be to seek to remove people from the UK. We judge that the offence will be helpful in particularly serious cases in which there may be aspects of culpability or links to organised crime, so it gives us an important additional mechanism. Given that the hon. Lady wants additional sanctions against and more punishment of employers, I hope she will welcome clause 9(2), which provides for an increase in the punishment for employers.
Keir Starmer
I have two quick points. As I understand it, the Minister is saying that for the vast majority of cases in which other offences have been committed, the policy will remain as deportation rather than prosecution—that is a pretty long-standing position. For that class of individuals, the Bill therefore adds absolutely nothing, except to the unlikelihood of people coming forward. The new offence is in fact designed to tackle a smaller number of individuals—the numbers are unknown—who might not fit within that category of “deport not prosecute”, so as to get to any proceeds. The new offence is being introduced to crack that particular nut. My second point—
The Chair
Order. As we are trying to do this properly through interventions, why not sit down for a minute and then you can intervene again with your second point?
James Brokenshire
To respond to the point on proceeds of crime, the Government are committed to taking robust action to prevent illegal working. In our judgment, the current situation encourages illegal migrants to come to the UK, and those who are already here to overstay their leave and remain in the UK. We are clear that working without permission should be an offence that has consequences for an immigrant’s earnings. It is unfair if firms are undercutting their competitors through exploitation and the use of illegal labour. The Government will have the ability to seize cash sums and, as the hon. and learned Gentleman will know from other provisions of the Bill, that may have implications for bank accounts. The way in which powers could be used operationally in various contexts is a thread that goes through the Bill. Some of the unlawful proceeds that are being derived can be actioned through various mechanisms in the Bill.
It is important that we are closing a gap and sending out a clear message on the implications of illegal working. I underline the core element behind the Government’s focus, which is to deport and remove those with no entitlement to be here.
Keir Starmer
I want to move on to the question of defences and the guidance that the Director of Public Prosecutions may issue. I am not concerned about the defence under the Modern Slavery Act—we had that exchange earlier and I understand the position—but the wider point of when that defence is unavailable. There is no defence of reasonable excuse in the Bill, so the individual in the example I cited earlier, who may not know that their leave to remain has ceased to have effect but therefore becomes a criminal, has no escape route. Does the Minister accept that in such circumstances it is not right to leave it to the DPP’s discretion? In other words, should not the DPP’s discretion be exercised according to the known offence and known defences? If there is a case for a defence, that ought to be in the Bill, rather than left to the discretion of the DPP. That is not to suggest that discretion does not operate in many cases, but if there is a proper case for having a defence, it ought to be for Parliament to write that into the Bill and then for the DPP to exercise discretion as to how it operates in individual cases. The alternative is the DPP effectively introducing a back-door defence, which has not been thought to be an appropriate use of guidelines.
James Brokenshire
First and foremost, I underline the point that, for those who are in the country unlawfully, the priority will be to see that they are removed. That is the first line of approach that immigration enforcement would take. Secondly, the use of the DPP’s guidance makes it clear that it is generally not in the public interest to prosecute an adult victim of slavery or trafficking where the crime they committed was a direct consequence of their slavery or trafficking situation and they were compelled to commit the crime.
A wide debate took place prior to the Modern Slavery Act as to whether that was sufficient in its own right or whether additional provisions were required. There was an extended debate between the non-governmental organisations, the DPP, the Crown Prosecution Service and policing. On balance, it was judged that the further defence provided in section 45 was appropriate. However, guidance can be provided on what is in the best interests of justice in that determination. Clearly, this will be a matter for individual cases, but, as I have already indicated, the primary approach that we want to take in respect of people who are here unlawfully is to see that they are removed.
The offence is to strengthen the message that the Government and the country send. Also, we want a method of dealing with serious or significant cases where an individual may be seeking to absolutely frustrate the system. The offence can be seen as an appropriate and effective tool in the work of immigration and enforcement in conducting their work. I suspect there will be a point of difference between us on that and it may be for the Committee to express its view on the issues, rather than to try to suggest there is not a difference of opinion when there is.
All victims, regardless of their involvement in criminal activity, are entitled to the same level of protection and support through the national referral mechanism and are assessed against exactly the same criteria. Support is tailored to each individual’s need and can include accommodation or outreach support and access to medical, legal and psychological support. As many hon. Members will know, the Government fund the Salvation Army to provide that service through a network of specialist charities across England and Wales.
On the point about whether the measures will strengthen the hands of the exploitative employer, as has been postulated, that is precisely why we are taking tougher action in the rest of the Bill against employers who exploit illegal labour. We are changing the knowledge base required in relation to the subsequent offence, as well as strengthening the approach to enforcement through the creation of the new role of director of labour market enforcement. Where employers repeatedly flout the law, we propose to use new powers to close their business premises and apply special measures as directed by the courts. Again, it is about the broad context.
I know that traffickers and those involved in such criminality are insidious in some of the techniques that they use. They use a wide range of techniques to exploit their victims, including debt bondage, physical force or threats to put victims in fear. There is no way entirely to stop traffickers misleading victims about what will happen if they come forward; they will often use such direct tactics to intimidate. The Government are making identifying and protecting victims of modern slavery, and giving them the confidence to come forward, fundamental to our modern slavery strategy.
That is why the Modern Slavery Act introduced the new statutory defence for victims who commit crimes due to their exploitation. Last year, the Home Office set up a modern slavery helpline and website and ran a national television campaign, with which many people will be familiar, to reach out to victims and encourage the public to report suspected modern slavery. In many cases, it is happening under our noses, in our communities and across our country.
As I have consistently said during my involvement in the initial preparation of the Bill, we must shine a light into those dark places, to see what is there in plain sight but is somehow unseen by us. That is the reason for the practical implementation of the Modern Slavery Act and the work that we are doing through a number of measures through the commissioner. It is about raising awareness and knowledge within law enforcement, so that the signs of slavery can be spotted and victims given the support that they need. That includes setting up specialist teams at the border to identify and protect victims when they enter or leave the UK. We are taking a multi-faceted approach in a way that has not been undertaken before. That is not a partisan view; good work has been done across the House on confronting modern slavery, and I welcome the contribution made to that work by numerous Members over an extended period.
Because of all that complexity and the elements that I have highlighted, I am simply not persuaded that the proposals make the situation worse in the manner postulated. As has been said, it is often those with the right to be in this country who are held here and kept in appalling conditions. We want to shine a light on those dark places from which they cannot escape, often physically, due to the manner in which they have been enslaved. That is precisely the reason for raising understanding in law enforcement and more generally across the population of this country, in order to deal with these issues when they become apparent. I know that I should refer to the contribution that you have made over a number of years, Mr Bone, to get us to a position in which we can have this debate with much greater understanding of the issues concerned. It is significant.
I see the issue in the broader context of what we are seeking to achieve in the Bill in terms of dealing with labour market exploitation, but I do not see that as inconsistent with the important work that we have done and will continue to do to confront slavery, traffickers and exploitation, and to go after those causing human misery in our country. I am proud to be part of a Government who take these issues seriously and are seeking to make a difference in that way.
The Chair
Kate Hollern, would you like to say something now, as I have rather rudely cut you off?
Keir Starmer
I beg to move amendment 67, in clause 9, page 7, line 6, leave out subsection 1 and insert—
“(1) In section 21 of the Immigration, Asylum and Nationality Act 2006 (offence of knowingly employing an illegal worker), delete subsection (1) and substitute—
(1) A person commits an offence if he knowingly or recklessly employs an adult subject to immigration control, where—
(a) this adult has not been granted leave to enter or remain in the United Kingdom, or
(b) this adult’s leave to enter or remain in the United Kingdom—
(i) is invalid,
(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
(iii) is subject to a condition preventing him from accepting the employment.”
To adopt a test of recklessness rather than negligence for the offence of employing an illegal worker, so as to avoid discriminatory employment practices by employers.
I can be relatively brief. The extension of the offence has been advanced on the basis of the need to deal with repeat offenders, but there is nothing in the Bill that requires an offender to have already offended before the new test is applied. Therefore, it is applied more generally. In our submission the right approach is to move to a position of recklessness rather than negligence for fear of the default position of employers, which could be discriminatory in its effect.
James Brokenshire
As the hon. and learned Gentleman says, the amendment seeks to avoid discriminatory practices by employers through adopting a test of recklessness for the offence of employing an illegal worker. The Government’s intention of using the “reasonable cause to believe” test is to make the current test more objective and easier to prove. It is intended to capture those employers who have wilfully turned a blind eye to someone’s immigration status.
It must be emphasised that the test of “reasonable cause to believe” is not the same as negligence, as the hon. and learned Member for Holborn and St Pancras will well understand. The intention is to continue to apply the civil penalty sanction to those employers who are simply negligent; that is to say, those employers who act without reasonable care and skill in terms of not checking a person’s right to work, or not doing so correctly.
We judge that introducing a test of recklessness would not assist in increasing the number of prosecutions of those employers who flout the rules on illegal working. It would remain a subjective test and would require proof that the employer foresaw a risk that the person had no right to work, yet went on to take that risk and employ them. It is precisely the difficulties in establishing the state of mind of the employer that the Government are seeking to address in the Bill, by introducing an objective element to the test. Having “reasonable cause to believe” will capture circumstances in which an employer wilfully turns a blind eye to anything that would give them reasonable grounds to believe that the employee has no right to work.
In addition to being more difficult to prove, a test of recklessness would also potentially go too wide and be more likely to lead to discriminatory behaviour, which the amendment seeks to avoid. In our judgment, the Bill’s test that the cause to believe must be a “reasonable” one strikes the right balance between making the offence easier to prove and guarding against discriminatory behaviour.
I do not believe that the test of “reasonable cause to believe” will encourage further discriminatory behaviour on the part of employers, because they are already required to undertake prescribed right to work checks to establish a statutory excuse in the event of illegal working. That does not change.
The Secretary of State has published a statutory code of practice on avoiding discrimination while preventing illegal working. If an employer is simply negligent, they will be dealt with under the civil penalty scheme. What we are changing is our ability to prosecute those employers who choose not to undertake the necessary checks because they have reasonable grounds to believe that such checks will reveal that the employee has no right to work. That is in addition to our intention to continue to prosecute those we can show actually know that someone has no right to work— which is where we largely sit currently—as we can do now under the current wording of the offence. Obviously, however, it inhibits and limits that sense of having to prove the knowledge of the employer in those circumstances. That is why the change has been brought forward.
Having given that explanation, I hope that the hon. and learned Gentleman will feel able to withdraw his amendment.
Keir Starmer
I am grateful to the Minister for that explanation and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
James Brokenshire
As part of our drive against illegal working in the UK, the Government intend to toughen their approach to employers who deliberately, cynically or systematically use illegal workers. The Immigration, Asylum and Nationality Act 2006 introduced a civil penalty scheme, under which employers of illegal workers may be liable for a civil penalty of up to £20,000 per worker. That remains the principal means of dealing with cases of non-compliance by businesses that negligently employ illegal workers. In 2014-15, 1,974 civil penalties were issued to employers, with a total value of £29.6 million.
The 2006 Act also introduced a criminal offence of knowingly employing an illegal worker, which provides the appropriate response to those employers who deliberately flout the law. The Government believe that we continue to need both the penalty scheme and the facility to prosecute in order to provide a comprehensive and appropriate response to the whole spectrum of employer non-compliance. However, we have concluded that we should take action in this Bill to strengthen the capability to prosecute where employer non-compliance goes beyond negligence or error.
Some employers are deliberately not checking whether their employees have the right to work. They routinely choose not to know, and so cannot be found to be knowingly employing an illegal worker. The new offence will also capture those employers who should have known that the employment was illegal. In addition, some employers are dissolving their businesses and simply creating a new business, in order to evade civil penalties for illegal working. In such circumstances, it is appropriate to hold an individual employer personally to account in their capacity as a company officer, and that can be done by prosecuting the individual for committing a criminal offence. Clause 9 amends the criminal sanction in the 2006 Act to make it easier to bring prosecutions successfully and to increase the maximum custodial sentence that a Crown court may impose.
Anne McLaughlin
Is the Minister not concerned that making it easier to bring about prosecutions and prove negligence will mean that employers are much more fearful of employing someone who, to them, does not sound, look or seem British? My fear is that people who genuinely intend to do the right thing will steer clear of employing anyone who does not appear to be British because they will be frightened of being prosecuted. They will be taking a big risk.
James Brokenshire
That is why I made the point about negligence and how that is dealt with under the civil penalty regime but not the criminal provisions that I explained earlier. That feeds back into the debate we have had in respect of the bar that needs to be set for bringing prosecutions. That is why I made the comments I did in the previous debate about discrimination. The most serious cases involving the exploitation of illegal labour will continue to be dealt with under legislation that prohibits facilitation and trafficking. It is important to make that point in the broader context of the provision.
Subsection (1) amends section 21(1) of the 2006 Act by inserting, after “knowing”,
“or having reasonable cause to believe”.
That is the test. It is not negligence. The effect is to amend what is known as the mens rea, the knowledge or intention needed to make out the offence, in order to make the test more objective and the offence easier to prove, but still with that safeguard.
Kate Hollern
My understanding is that for an employer to take on an employee the latter needs a national insurance number. Would that not automatically say that someone had the right to be here?
James Brokenshire
It is rather that the employer has to show the right-to-work check, which is what the provision relates to. There is certain documentation with which employers should be familiar. We still work on the basis of trying to raise awareness of the issues. We are not trying deliberately to catch out employers. I certainly want employers to know the relatively simple steps they have to take to comply. The obligation was introduced into law in 2006, when the civil penalty scheme was put in place by the Labour Government. That is, therefore, what needs to be shown and it is why the negligence piece sits within the civil penalty regime.
The amendment to the definition of the offence—having reasonable cause to believe—is for those who close their eyes and put their fingers in their ears so that they cannot be liable, trying to get around the existing knowledge requirement of the Act. Those employers are, frankly, trying to play the system, and we are making the changes because of the problems that the pre-existing offence presented for our ability to bring prosecutions. I think that hon. Members would want us to be able to bring prosecutions in such circumstances.
Sarah Champion
Building on what the Minister said in response to my hon. Friend, what would be a reasonable defence for an employer?
James Brokenshire
It will depend on the circumstances. It is about the distinction between negligence and having reasonable cause to believe. The legal tests are slightly different, and I do not want to hasten into issues of law as I am sure that the hon. and learned Member for Holborn and St Pancras will be well enough equipped with his knowledge and expertise in those matters to be able to underline the distinction, as will the Solicitor General. I will not hasten to stray into matters of law with such august representatives in the room.
At the moment, if a document that looks legitimate and real is presented to someone, that is often a defence in relation to the negligence argument. The employer has not been negligent. They have checked. We are not trying to make employers, or landlords—we will come on to them, I am sure, under the right to rent—into some sort of extension of immigration enforcement teams. If it is shown that the basic checks have been conducted in good faith, the civil penalty regime would not apply, even on the test of negligence—let alone the criminal sanction in clause 9. On that basis, the measure is an important step forward and fits within the broader enforcement strategy. I hope the clause will stand part of the Bill.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Clause 10
Licensing Act 2003: amendments relating to illegal working
Question proposed, That the clause stand part of the Bill.
James Brokenshire
With clause 10 and schedule 1, we move on to a slightly different provision. We will come to amendments to schedule 1 in the next group. Clause 10 deals with amendments to the Licensing Act 2003 that relate to illegal working. Home Office immigration enforcement officers frequently encounter illegal migrants in premises involved in the sale of alcohol and late-night refreshments. It is clear, on the basis of intelligence, that this is a high-risk sector for illegal working. Accordingly, we want to adapt the licensing regime to prevent illegal working in the sector.
Clause 10 and schedule 1 will prevent illegal migrants and those whose status does not permit them to work here from holding premises and personal licences. They provide a mechanism for the Home Office to object to the issue of such licences when it considers that necessary to prevent illegal working. Immigration officers are provided with the same power to enter a premises as licensing enforcement officers, for the sole purpose of checking whether immigration offences are being committed in connection with a licensable activity—namely, selling alcohol or providing late-night refreshment.
Clause 10 gives effect to schedule 1, which amends the Licensing Act 2003. The Licensing Act applies to England and Wales. We are consulting Northern Ireland and Scotland with a view to making similar amendments to their legislation in the Bill or, if that is not possible, in regulations, for which provision is made in the clause.
The provision links to schedule 1, on which some technical amendments will be moved. I will sit down at this point and move on to schedule 1 when we discuss the next group of amendments. The provisions are interlinked but I am conscious of the separation between them.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
The clause and schedule pertain to the Licensing Act 2003, which is England and Wales legislation, but clause 10(2) empowers the Secretary of State to implement, by regulation, similar changes to Scotland. That is completely unacceptable and goes against the spirit of devolution and the Sewel convention. I am sure that the Minister will argue that it pertains to immigration, which is reserved, but it obviously has a big impact on a devolved matter.
Powers that ride roughshod over primary legislation—whether that is here in Westminster or at Holyrood in Edinburgh—without proper scrutiny by elected Members should be used very sparingly. The measure should be dealt with in primary legislation subject to debate prior to a legislative consent motion. The Government state that a significant proportion of illegal working happens on licensed premises where there is the sale of alcohol and late-night refreshment or the provision of entertainment. I have previously received an answer from the Minister, which confirms that the UK Government have no evidence that suggests that takeaways and off-licences are far more likely to employ illegal migrants compared to other businesses. That rather highlights the lack of evidence base for this part of the Bill. Surely, the starting point for any legislation is the requirement of evidence. To use hearsay or assertion in supporting this or any other legislation makes for neither good politics nor good law. Even if Members accept the premise of the proposal, the very need for this part of the Bill is called into question by John Miley, the chair of the National Association of Licensing and Enforcement Officers, who stated:
“Generally speaking, licensing authorities do not work in silos. They work in the broader scheme of things, and work with the police and the Security Industry Authority and more generally with immigration. Good work is currently going on in quite a lot of cases.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 32, Q67.]
The most concerning thing about the provision is the new power whereby an immigration officer
who has
“reason to believe that any premises are being used for a licensable activity”
can enter the premises
“with a view to seeing whether an offence under any of the Immigration Acts is being committed in connection with the carrying on of the activity.”
That terminology is a big concern to my colleagues and me. As framed, it gives immigration officers a very wide power to search any licensed premises. Home Office statistics show that an alarming number of offences pertain to small businesses that serve ethnic cuisines and are therefore likely to be run by ethnic minority owners. Is that because they are the gravest offenders or because they are searched most frequently? Will the same be true of licensed premises? The Migrant Rights Network states:
“These are small businesses who will be less able to deal with the additional burden of carrying out and recording frequent and complex immigration checks.”
The Secretary of State is given an additional power, as she can object to the granting of the licence, and that is to be taken into account by the licensing authority. Again, that is a completely devolved area and highlights the need for further reflection by the Government. Unlike other sections of the Bill, the Home Secretary is given leave to appeal against the granting of a licence or refusal to cancel a licence despite her objection. This is additional bureaucracy that most businesses will not welcome and that is surely not in keeping with a long-term economic plan.
Restaurants and bars—especially those serving ethnic cuisines—feature heavily on the list of those given civil penalties for employing illegal workers. Is that because they employ illegal workers more frequently than other employers or because they are targeted more frequently for enforcement activity? If it is the latter, can the Minister tell us why?
In concluding, I should point out to the Committee that if the clause is passed, we will table further amendments on Report to remove the power to extend the provision to Scotland through regulations.
James Brokenshire
As I have indicated, there are ongoing discussions with the Scottish Government about the impact of the clause and the potential for regulations. While the hon. Member for Paisley and Renfrewshire North and I were in agreement this morning, this may be a point on which we are not of the same view.
As the underlying purpose of the clause relates to immigration, our view is that a legislative consent motion is not required. We are in the process of consulting the Scottish Government on any necessary amendments to make provision for Scotland on the face of the Bill, and similarly for Northern Ireland. Management information for 2014-15 highlighted a number of operations from immigration enforcement in Scotland.
The hon. Gentleman asked me for evidence of why we think this is an important area to legislate on by building a mechanism into the licensing provisions—evidence of people with no status in the UK being captured within those sanctions and mechanisms. Of all civil penalties served in the year to June 2015, I am advised that 82% were served on the retail industry or hotel, restaurant and leisure industry, a large proportion of which hold premises or personal alcohol licences. That is why we see this as an issue affecting a particular sector. In building the legislative framework, it seems appropriate to strengthen the mechanisms available and to build the provisions in the Licensing Act and the potential sanctions in this way.
I appreciate the points that the hon. Gentleman makes and the different view he holds, but it is for the purposes I outlined that we view this as a reserved matter and are taking this stance. I assure him that discussions continue with the Scottish Government on how this may be applied within Scotland.
Question put, That the clause stand part of the Bill.
James Brokenshire
I beg to move amendment 1, in schedule 1, page 49, line 38, leave out sub-paragraph (6) and insert—
‘( ) After subsection (5) insert—
(5A) Where an interim authority notice is cancelled under subsection (3)(b)(ii), the licensing authority must also give a copy of the notice under subsection (4) to the Secretary of State.””
This amendment requires a licensing authority to notify the Secretary of State of its decision to cancel an interim authority notice where the Secretary of State has given notice under section 48(2B) of the Licensing Act 2003 that granting the interim authority notice would be prejudicial to the prevention of illegal working.
James Brokenshire
These minor and technical amendments strengthen and clarify the amendments made by schedule 1 of the Bill to the Licensing Act 2003. The amendments to that Act in general build in additional protections against illegal working in the licensing regime governing the sale of alcohol and late-night refreshments. The amendments must be considered within the context of clause 10 and schedule 1 to the Bill.
Amendment 1 requires a licensing authority to notify the Secretary of State—in effect, the Home Secretary—if the licensing authority decides to cancel an interim authority notice where the Secretary of State had notified the licensing authority that failing to cancel the interim authority notice would be prejudicial to the prevention of illegal working.
Amendment 2 ensures that a chief officer of police may take into account whether an immigration civil penalty, for employing an illegal worker or renting a dwelling to an illegal migrant, would undermine the crime prevention objective when considering whether to object to a personal licence application.
Amendment 3 makes a similar provision to amendment 2 where the chief officer of police is notified, after a personal licence has been granted, that the licence holder was required to pay an immigration penalty in the period between the application being made and its being granted.
Amendments 4, 5 and 6 substitute “licence holder” for “applicant”, so that they are consistent with the other amendments to section 124 of the 2003 Act.
Amendment 7 requires a licensing authority to notify the Secretary of State of its decision whether or not to revoke a personal licence where the Secretary of State has served an immigration objection notice under section 124(3B) of the 2003 Act.
Amendment 8 makes consequential amendments to section 10 of the 2003 Act and amendment 9 makes consequential amendments to sections 109 and 111 of the Police Reform and Social Responsibility Act 2011.
Amendment 10 makes transitional provisions, so that the amendments to sections 13, 16, 42, 47 and 120 of the 2003 Act do not apply in relation to applications made, or interim authority notices given, before the commencement of the respective paragraph of schedule 1.
Keir Starmer
On a point of clarification in relation to proposed new section 179(1A) of the Licensing Act 2003, as inserted by paragraph 22(2) of schedule 1, I want to ask the Minister an open question. Why is the test there for an immigration officer to enter premises that they have “reason to believe” the premises are being used, rather than, as I think is the case elsewhere in the Bill, that they have “reasonable grounds” to believe that? It may to be align the Bill with other licensing legislation, but on the face of it, that is a much lower threshold than the usual threshold for entering premises, and it is with a view to seeing whether an offence is being committed. This is a genuine, if probing, question.
James Brokenshire
I think the amendments are being made on the basis of consistency with other legislation. However, in the spirit in which the hon. and learned Gentleman raised that issue, I will have a look at that point of detail in relation to previous legislation and how this is framed in some of the other tests that are being applied. If there is an issue, I will come back to him.
Amendment agreed to.
Amendments made: 2, in schedule 1, page 51, line 27, at end insert—
‘( ) In subsection (5)—
(a) omit the “and” at the end of paragraph (a);
(b) at the end of paragraph (b) insert “and
(c) the applicant having been required to pay any immigration penalty,”.”
This amendment ensures that a chief officer of police may have regard to an applicant being required to pay an immigration penalty when considering whether granting a personal licence would undermine the crime prevention objective.
Amendment 3, in schedule 1, page 53, line 11, leave out sub-paragraph (3) and insert—
‘( ) In subsection (3)—
(a) in paragraph (a)—
(i) for “applicant” substitute “licence holder”;
(ii) for “, and” substitute “which occurred before the end of the application period,”;
(a) in paragraph (b), after “relevant offence” insert “and which occurred before the end of the application period”;
(b) at the end of paragraph (b) insert “and
(c) the licence holder having been required before the end of the application period to pay any immigration penalty,”;
(c) in the words after paragraph (b), omit “which occurred before the end of the application period,”.”
See the explanatory statement for amendment 2.
Amendment 4, in schedule 1, page 53, line 20, leave out “applicant” and insert “licence holder”
This amendment and amendments 5 and 6 substitute “licence holder” for “applicant” to be consistent with the other amendments to section 124 of the Licensing Act 2003.
Amendment 5, in schedule 1, page 53, line 22, leave out “applicant” and insert “licence holder”
See the explanatory statement for amendment 4.
Amendment 6, in schedule 1, page 53, line 26, leave out “applicant” and insert “licence holder”
See the explanatory statement for amendment 4.
Amendment 7, in schedule 1, page 54, line 7, leave out sub-paragraph (6) and insert—
‘( ) After subsection (5) insert—
(5A) Where the authority revokes or decides not to revoke a licence under subsection (4)(b)(ii) it must also notify the Secretary of State of the decision and its reasons for making it.””
This amendment requires a licensing authority to notify the Secretary of State of its decision whether or not to revoke a personal licence where the Secretary of State has served an immigration objection notice under section 124(3B) of the Licensing Act 2003.
Amendment 8, in schedule 1, page 56, line 24, at end insert—
In section 10 of the Licensing Act 2003, (sub-delegation of functions by licensing committee etc), in subsection (4)(a), in sub-paragraphs (v), (vi) and (x), omit “police”.”
This amendment makes consequential amendments to section 10 of the Licensing Act 2003.
Amendment 9, in schedule 1, page 57, line 17, at end insert—
In the Police Reform and Social Responsibility Act 2011, omit sections 109(9) and (10) and 111(3) and (5).”
This amendment makes consequential amendments to sections 109 and 111 of the Police Reform and Social Responsibility Act 2011.
Amendment 10, in schedule 1, page 57, line 19, at end insert—
The amendments of sections 13, 16, 42, 47 and 120 of the Licensing Act 2003 made by paragraphs 3, 4, 6, 9 and 15 respectively of this Schedule do not apply in relation to applications made, or interim authority notices given, before the coming into force of the respective paragraph.” —(James Brokenshire.)
This amendment makes transitional provision to the effect that the amendments to sections 13, 16, 42, 47 and 120 of the Licensing Act 2003 do not apply in relation to applications made, or interim authority notices given, before the coming into force of the respective paragraph of Schedule 1 making the amendment.
Ordered, That further consideration be now adjourned.—(Charlie Elphicke.)
Immigration Bill (Fifth sitting)
James Brokenshire Excerpts(8 years, 6 months ago)
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The Chair
Just before we move on, I want to say that I have allowed the debate to go fairly wide of the mark on trafficking as it does indeed go to the heart of the Bill. If you recall, I did ask for one of the witnesses to define trafficking. I myself was none the wiser after she had finished speaking, unfortunately.
The Minister for Immigration (James Brokenshire)
I welcome you to the Chair, Mr Bone, and other members of the Committee to our consideration of part 1 of the Bill, which deals with labour market enforcement. I look forward to the debates that we will have in the coming sittings to, I hope, improve the Bill and to reflect on significant issues relating to labour market enforcement and immigration more generally. I look forward to debate that I am sure will be wide ranging and well informed and that I hope will be good natured. These Committees are about scrutiny of the detail of the legislation. There will be strong views on certain issues, but the approach that I always take on Bill Committees is to listen and to reflect, and I hope to be able to inform and provide evidence and further background to the Committee during the detailed consideration of this Bill. With those words of introduction, I will move on to clause 1 and the amendment tabled by the hon. and learned Member for Holborn and St Pancras.
The effect of the amendment would be to specify the primary purpose of the director of labour market enforcement in clause 1. Although I appreciate the desire to include a strong statement up front on the director’s remit, I believe, for reasons that I will explain, that the amendment is unnecessary. The director’s role and remit are already clearly set out in clauses 1 to 7. When we look at the provisions in clauses 2 and 3, which we will debate in the course of this morning, and the specific definitions of “labour market enforcement functions” and “labour market legislation”, we see that that provides a clear framework as to the intent behind the creation of the director, but I will explain this a little further.
We are creating the director of labour market enforcement to lead efforts to tackle abuse and non-compliance in the labour market. As we will explain in the debates on later clauses, that will include setting the strategy for the Government’s work to tackle all types of labour market exploitation and creating an information hub to facilitate better sharing of tactical and operational intelligence. I think that that is equally important. On some of the issues of vulnerability that have already been flagged in terms of identification, it is important to be able to share that information and get it to the right agencies so that they are able to act. I think that that goes beyond the remit specifically of the director, but I certainly understand and respect the points that have been made.
Paul Blomfield
I want to push the Minister on that point. As I said, the confusion arises because a director of labour market enforcement is being proposed in the context of an immigration Bill and it is a post that will report to the Home Secretary. Were the director of labour market enforcement sitting in a different Department, reporting perhaps to the Secretary of State for Business, Innovation and Skills, the necessity for this absolute clarity might be diminished. Does the Minister agree that the fact that the labour market enforcement function is within an immigration Bill and the post reports to the Home Secretary means that it would be helpful to have absolute clarity on the purpose, so that this post holder is not distracted by other—quite legitimate but other—considerations of Government?
James Brokenshire
I welcome the hon. Gentleman’s welcome for the creation of the director of labour market enforcement and what he said about the way in which it is framed and the intent behind it. I will go on to respond to his direct point, but let me address the issue about whom the director reports to. It is to the director of business and to the Home Secretary. Let us look at the agencies in relation to which the director has a remit. One of those is the Gangmasters Licensing Authority. That sits within the Home Office and therefore it is appropriate for the director to report to the Home Secretary in respect of the overarching work; the GLA is a Home Office-sponsored and led agency. The hon. Gentleman may want to engage in a broader debate as to whether he thinks that that is appropriate, but it is important that it is structured in that way.
Keir Starmer
Obviously, one of the concerns is where the director reports to. I understand the point about the need to report to the Home Secretary as some of the other agencies do. I am trying to explore where we have common ground. The experience in other countries is that merging labour market enforcement with immigration is counterproductive. There is a concern that this is an immigration Bill and therefore there is the potential for that merger. Other countries have experienced a practical problem in exercising the primary function because it has been merged with immigration control and enforcement. Does the Minister accept that there are real examples in other countries of action which started with a good intention but went wrong because it morphed into what was, in truth, immigration control and enforcement?
James Brokenshire
I would point to the fact that immigration enforcement—the directorate within the Home Office that is responsible for the enforcement of immigration rules—is not one of the structures that the director has responsibility for. I will cover in turn the point about remit because there is an important aspect to this. When hon. Members have heard what I have to say, I hope that they will understand that the hon. and learned Gentleman’s concern about some sort of merger is not what this is about. We intend the director’s remit to cover labour market breaches, not immigration offences. The director and the enforcement bodies will work closely with Home Office immigration enforcement wherever labour market breaches are linked to illegal immigrants or people working in breach of their visa conditions, but that is an adjunct and not the purpose of the director.
I was asked why this measure was in an immigration Bill. There are two reasons. First, immigrant workers can be particularly vulnerable to exploitation by rogue employers, a point that has been flagged by hon. Members already this morning. I am sure that that will be a continuing theme during our consideration of the Bill. Secondly, by ensuring that workers are treated fairly, we are preventing businesses bringing in cheap labour that illegally undercuts the wages of people already in this country. Good labour market enforcement has knock-on effects.
Modern slavery has been a theme of some of the contributions this morning. With the Modern Slavery Act, Britain is once again at the forefront of the fight against the inhuman crimes of slavery and forced labour—the hon. Member for Sheffield Central and others made comments on this—but it is important to understand that exploitation occurs in many forms and can start with abuse of employment law. We must step in to protect not just the vulnerable—I will address the point about vulnerability—but also local workers and responsible businesses affected by those who are prepared to exploit cheap labour. That is why there is the need for this strategic approach and for the director to work with the different organisations that are in place. This is not a merger, as the hon. Member for Sheffield Central highlighted in his contribution, but rather we have an over-arching strategy of looking at ways in which we can promote good practice.
I would direct hon. Members to the consultation published alongside the Bill to set out some of those details. It says that:
“The Director will lead and co-ordinate work to promote compliance by employers and labour providers with labour market legislation, and to encourage and enable people to report infringements and exploitation.”
We are conducting a consultation at the moment around the director. We look forward to receiving feedback and input so that we are able to reflect fairly and appropriately.
Our employment law framework guarantees decent minimum rights for workers, including from next April the national living wage for over-25s, and promotes fair competition between businesses. The majority of employment law is enforced by individuals taking their employer to an employment tribunal to seek redress if they believe they have been wronged. State enforcement bodies step in to enforce legislation where there is a higher risk of exploitation or vulnerability.
As I have indicated, clause 3 already defines the director’s role by reference to the legislation and enforcement functions that will be within his remit. It makes it clear that the three enforcement bodies for which the director will set the strategy are the Employment Agency Standards Inspectorate, HMRC’s national minimum wage team and the Gangmasters Licensing Authority. We want the director to bring co-ordination across the whole spectrum of breaches of employment law—from employers who do not know the rules right through to organised, criminal exploitation of workers. That will be the director’s broad remit. However, I am concerned about some of the pictures we see of organised immigration crime and organised criminality more generally that seeks to exploit labour markets and uses the front of employment. We are dealing with a broad spectrum, which ranges from vulnerability all the way to good practice and compliance. It is right that the director should have that remit—setting up strategy, commenting on the balance of resources across each of the three agencies and reporting to the relevant Secretary of State.
Sarah Champion
Could the Minister give clarity on how the director would work in collaboration with the Independent Commissioner for Modern Day Slavery? Whether it is in guidance or within the Bill, it would help if the two roles could be clarified, because there is a grey area.
James Brokenshire
It is important to stress that they are separate roles. We make that point clearly in the consultation document, where we say that the director will have a role that is distinct from the commissioner’s role. Obviously, the commissioner looks at all types of modern slavery, whereas the focus of the director will be on labour market exploitation and enforcement. The practical roles are equally different:
“The Director will set the strategic plan, priorities for targeted action and overall approach”,
whereas
“the Commissioner has a broad role to look at the effectiveness of all the bodies engaged in the fight against modern slavery, encourage best practice, and make recommendations for improvements. That role will in future include looking at the effectiveness of the new Director and the reformed GLA”,
which we are consulting on now. I hope that is helpful and explains that these are complementary roles. I think that the commissioner, Kevin Hyland, is doing an excellent job. He has a great deal of practical experience from his time in law enforcement. I remember a couple of years ago going out with Mr Hyland on an enforcement raid to do with trafficking, so I know the real passion he has for that job. I think that he will use and work with the new director in a very positive way to continue to confront the appalling evil that is slavery and trafficking, with people being horribly exploited and enslaved for gain. We continue to need to shine a light on this, so that it is seen for what it is.
Paul Blomfield
I endorse the points that the Minister made on enforcement, but I want to come to the issue he raised about the review of the Gangmasters Licensing Authority. I agree that effective enforcement is important. The opportunity for exploitation in the labour market is growing. Can he reassure us that the review of the GLA will not mean that we will be moving to voluntary licensing?
James Brokenshire
I think that the hon. Gentleman may be straying a little from the specific amendment. He will have seen the clear manner in which the consultation document is set out and the various questions that are being asked about the licensing function in ensuring that that is conducted appropriately, is evidence-based and is used as a tool to prevent exploitation in the highest-risk sectors. I direct right hon. and hon. Members to the relevant sections on pages 40 and 41 of the consultation document, which set that out. Obviously, we will reflect carefully in the context of the feedback we receive around the consultation.
Keir Starmer
Before the Minister moves on from that point, he has understandably set out the functions in clause 3(3) that are of primary relevance. I understand that. The purpose of the amendment is to say that, among those purposes or functions, this is the primary one and it is protective. That is the sole purpose of the amendment. His point is that it is not needed in the light of clause 3(3). The concern is that there is no clear reference in the Bill to the primary purpose. The measure comes in an Immigration Bill that, a few clauses on, includes offences of illegal working. Does he understand that, although we do not quarrel with the functions or why he has chosen them, we want to underline what I think is common ground, that the primary purpose is protective? In this environment, and given other international examples, it is helpful for all concerned to have that included in the Bill.
James Brokenshire
I think I have already explained that the functions of the director of labour market enforcement are by their nature framed within the context of the various pieces of legislation that the hon. and learned Gentleman set out. I have also explained, as set out in the consultation document, that the measure is about promoting good practice and highlighting issues where employers can equally comply. That is why I responded as I did to a number of hon. Members about the spectrum of activity engaged here.
We are very clear that the purpose of the director of labour market enforcement is to tackle labour market exploitation across the field. We believe this measure will give the stronger drive to deliver that step change in tackling exploitation. The director will have that purpose set out in terms of appointment and, in delivering that, will be accountable to the Home Secretary and Secretary of State for Business, Innovation and Skills.
We also believe that the requirement to publish the strategy and annual report—it will not be a private document but will be visible according to the legislative framework—will demonstrate the clear commitment to protecting the vulnerable and tackling exploitation. That is again why we are clear on the remit, role and function. From a tactical operational perspective—I am sure we will come on to the information hub—that will support the activity.
Paul Blomfield
I am grateful to the Minister for being generous with his time. I have listened carefully to his comments and there is little in them that I can disagree with. Given that we are seeking to be on the same page as far as we can on all these issues, will the Minister explain why he feels that the Bill would be diminished by the amendment?
James Brokenshire
As I have already indicated, I simply do not think it is necessary, because the Bill is already framed so as to cover the points hon. Members are highlighting. I have always taken the approach in legislation that, if the situation is clear through other mechanisms, adding provisions that are not needed is not appropriate. I had hoped in my comments to assure the Committee why the amendment is not necessary, the purpose of the provisions and the intent of the Government. Transparency will be provided through the annual reporting to see what is happening in practice, and therefore the amendment as expressed is not needed. The director’s strategy will be evidence-based, which will allow the plan to be from year to year, based on where non-compliance is most likely to cause harm. That will be reflected in the plan.
Mrs Lewell-Buck
I have also listened carefully to the Minister, but I am confused and puzzled. If the purpose of the measure is to tackle labour market exploitation across the board, why did the Government see fit to include it in the Immigration Bill?
James Brokenshire
I have already responded to that point by mentioning the vulnerability faced by people who are here through immigration. Equally, the measure can be a means of ensuring that we have a good, regulated labour market that therefore does not add to exploitation, nor encourages people to come here illegally or through trafficking, which is why it sits in the overall framework of an immigration Bill. I hope that I have explained that the purpose and remit of the director is labour market enforcement. The provision is not intended to stray into the separate issues of immigration enforcement, but if cases of people who are here illegally are highlighted, the director would be duty-bound to report that and to pass on intelligence through the hub that is being created. We will no doubt have a separate debate about that when we reach the relevant provisions.
Keir Starmer
I am sorry for intervening again. Although I disagree with very little of what the Minister is saying, that last point is a cause for concern. Of course it makes sense for the director to have these primary functions and to co-ordinate with other action on immigration, but the concern is that when we put the two functions together and do not clarify the primary purpose, there will be a misunderstanding about how this works.
We support this good initiative of having a director, but the good work—the head of steam—will be lost if the primary purpose is not clear. People will feel that the measure is, on the face of it, about labour market enforcement, but it carries with it immigration checks and it is in an immigration Bill. What the Minister says makes perfect sense, but that concern is the cause of our discomfort and the reason behind the amendment, which would make the provision much more powerful.
James Brokenshire
In many ways, the purpose of a Bill’s Committee stage is to tease out some of these issues, and to get the Minister—in this case, me—to set out and clarify the purpose and intent of a Bill’s provisions. We strongly believe that the Bill gives certainty and clarity about how the director will provide co-ordination.
The measure is about existing agencies that are already carrying out functions. If intelligence is already discovered by those agencies, sharing will already take place. This does not change anything about operational practice; rather, the director will provide strategy, co-ordination and an overarching response. We need good work on enforcement between agencies so that we do not—I do not think we have this, but the provision ensures that that is the case—have a silo-based approach, given that there is an overlap and that we need to look at this as an overall market. Those are the reasons why we do not believe the amendment is required, so I ask the hon. and learned Gentleman to withdraw it.
Keir Starmer
As I have already indicated, I am grateful to the Minister for setting out so clearly the purpose behind the director of labour market enforcement. In one sense, there is nothing between us on that. Our concern is clear: this positive development comes in an immigration Bill, yet there is clear evidence from other countries that unless we are clear about the primary purpose of such a measure, we run the risk of losing everything that we have tried to gain.
As I have said, the offences of illegal working in relation to employers and employees are set out just a few clauses later in the Bill. When such measures are together in one Bill, a clear explanation of the primary purpose of the director would cut through a lot of the concern and help that person to devise a strategy that focuses on that primary purpose, rather than other possible purposes. I welcome the comments of the Minister and other members of the Committee, but I will not withdraw the amendment.
Question put, That the amendment be made.
James Brokenshire
I shall be brief, given that we have had quite a wide-ranging debate about the purpose of clause 1. I underline that the purpose of and the rationale behind the appointment of the labour market enforcement director is that the three main enforcement agencies work together. They are well respected, with distinct expertise, knowledge and skills, and collectively they span the spectrum of infringement from the simplest forms of non-compliance to exploitation that may include some form of slavery. There has been a shift in the nature of such exploitation from individual abuses of employment regulation towards organised criminal activity, which is why it is important that we have an overarching response that ensures that we join the work of the bodies together.
To enable the enforcement bodies to address the problem collectively, we have determined that there is a need for greater co-ordination among them, as well as the need for a single set of priorities. We want to ensure that there is strong, effective co-ordination of the three enforcement bodies, but we also want to achieve that with minimal disruption and while avoiding significant structural change.
We believe that the key lies in establishing effective overarching leadership and co-ordination of the enforcement bodies, so the clause creates the position of director of labour market enforcement. The director will lead efforts to tackle abuse and non-compliance in the labour market. As we will debate later, that work will involve setting the strategy for the Government’s work to tackle all types of labour market exploitation, and heading an information hub to enable better sharing of tactical and operational intelligence, as well as to build a stronger evidence base to inform future interventions.
Creating a director provides the greatest scope for achieving the strategic integration of the three enforcement bodies without losing their different specialist skills. It is vital that those skills are retained to deal with not only day-to-day compliance issues, but serious criminality. If the system focused exclusively on either serious exploitation or lower-level breaches, it would not provide the necessary protection for vulnerable workers, which is why we have drafted the Bill in such a way.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Labour market enforcement strategy
Keir Starmer
I beg to move amendment 57, in clause 2, page 2, line 9, at end insert—
(ia) the threats and obstacles to effective labour market enforcement,
(ib) the remedies secured by victims of non-compliance in the labour market,”
To ensure that the labour market enforcement strategy sets out an assessment of the threats and obstacles to effective labour market enforcements and the remedies secured by victims of labour rights infringements and labour market offences.
Paul Blomfield
No. I thank the hon. Gentleman for his intervention because it allows me the opportunity to clarify that the amendment is seeking to ensure that labour market offences by employers committed against all workers be included within the scope of the director of labour market enforcement’s work. The point is that, as currently drafted—unless the Minister can provide contrary clarification—the measure suggests that undocumented workers will be excluded. Clearly, it is nonsense that a labour market enforcement director who is seeking to challenge all abuse in all parts of the labour market would have excluded from his terms of reference that part of the labour market which, by definition, is most likely to be subject to substantial abuse and exploitation. The Minister might be able to provide clarification that makes the amendment unnecessary.
James Brokenshire
I thank all hon. Members for their contributions in this mini-debate. Equally, I should celebrate and recognise the contribution from the hon. Member for Paisley and Renfrewshire North. I appreciate that this may be a rare moment in the consideration of the Bill—he is supportive of the measures—but, in good spirits, I welcome his comments and the support he has given. I think that there is a shared recognition that we need to deal with exploitation and to achieve better co-ordination, and that we need the strategic response that is provided by the Bill. I welcome his comments in the spirit in which they were made.
The hon. and learned Member for Holborn and St Pancras asked me at the outset about organised criminal activity and the evidence base. It is feedback from enforcement officers that tells us that the incidence of forced labour may be growing at a faster rate than other types of exploitation. It appears to be due to criminal gangs infiltrating the supply chain, which I know is a broader issue that was debated during the passage of the Modern Slavery Act. I will not stray widely, but perhaps that will give him a sense of what we have been looking at.
Amendments 57 and 58 relate to the contents of the director’s annual strategy to address non-compliance in the labour market in the forthcoming financial year. Although I agree entirely with the intention behind the amendments, they are unnecessary because it is the Government’s expectation that the director will feed information of that nature into the planning and reporting cycle. Page 24 of the consultation document says of the strategy:
“It will set out, for the financial year ahead: the priorities for enforcement; the outcomes required from the enforcement bodies; and the budgets for the enforcement bodies, within the total envelope of available funding.”
So we have been quite clear about our expectations.
The issue of how non-compliance in the labour market should be addressed is at the heart of the strategy, which is why clause 2(2)(b)(i) requires the director to propose how labour market enforcement functions should be exercised, or, to put it another way, how the three enforcement agencies under the director’s remit should operate to address non-compliance.
The Government would not consider the strategy to be effective if it did not identify the threats and obstacles to effective labour market enforcement. We expect the director to turn over stones to tell us where the gaps are and to propose how they can be addressed. That is a crucial and valuable aspect of the role. Similarly, the Government would not consider any strategy or report to be effective if it did not examine the important issue of securing remedies for victims, which would naturally include recovering wages owed to workers and sanctions against employers for labour market offences.
Sarah Champion
Therefore, will the Minister confirm that, as in amendment 62, non-compliance will be reported on and used as a baseline for forthcoming reports?
James Brokenshire
As the hon. Lady will note from the consultation document, the strategy is about setting out information and issues concerning the work of different bodies and agencies, including some themes of non-compliance. How that feeds into communication, good practice and sharing information is at the heart of the matter and needs to be reflected in the strategy.
Amendments 56 and 59 bring me to the director’s role in setting the resources of the enforcement bodies. It is the Government’s intention not that the director of labour market enforcement decides the budgets of the three enforcement bodies, but that the director should recommend how resources should be allocated within the total envelope of available funding. Hon. Members will be aware that the Gangmasters Licensing Authority is funded by the Home Office, and the Employment Agencies Standards Inspectorate and HMRC’s national minimum wage enforcement teams are funded by the Department for Business, Innovation and Skills. Funding for those agencies is secured via the usual departmental bidding process. While the Government intend that the relevant Secretaries of State will take the director’s proposals on resources into account during the preparation of those bids, it is right that the Government set the overall level of resources devoted to labour market enforcement in the context of the totality of pressures on public spending. I point out that HMRC has increased its budget for enforcing the national minimum wage; for 2015-16, that has increased by £4 million, meaning that the total budget has increased to £13.2 million.
Keir Starmer
I do not want to lose the central concern—a concern that gives rise to the amendment and that was in all the evidence, both written and oral evidence given to us last week. The existing agencies have their budgets and their funding. Funding streams will be set by different parts of the Government and different bodies. Although HMRC is an example of where there has been an increase, budgets are being cut. The real concern being expressed across the board is that the resources at the moment for the existing agencies are such that the likelihood of any inspection or action being taken is very low. I am the first to accept that some of the statistics about one visit every 250 years and a prosecution once every million years have to be put into proper context; if it is intelligence-led, that gives a different perspective. I completely understand that, but the point made by independent body after independent body is that the likelihood of inspection and enforcement action is so low that it does not operate as much of a deterrent for most of those who may be involved in abuse of the market. That is a real concern. The Migrant Advisory Committee has been mentioned, but plenty of others charged with overseeing some of these issues are extremely concerned about the resources.
In that context, and understanding that it will not be the director’s role to require resources to be used in a particular way, what assurance can we be given that there will be a shift—a step change—in approach? Without providing the resources necessary to give some assurance to the many people, including Opposition Members, who have raised their voices on this issue, it is difficult to see how the strategy will achieve the desired objective and be the positive step forward that it needs to be. Accepting the constraints and the framework in the Bill, what assurance can be given in response to the powerful evidence about the lack of resources and the limited likelihood of inspection and enforcement action being the real problem, rather than the penalties after the event?
James Brokenshire
I would point to what Professor Metcalf said during the evidence session about checks taking place every 250 years. He said:
“I am exaggerating when I say once every 250 years for a visit. Of course, they will do it based on risk.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 21, Q40.]
Our reforms are about enabling better targeting of enforcement activity, to make best use of the resources available and, therefore, to best protect vulnerable workers.
I return to my point about the additional support that HMRC is providing in terms of the national minimum wage. Where the director feels that the overall level of resources available has had an impact on delivery of the strategy, he or she will be able to say so in the annual report, which is laid before Parliament. That report can be redacted only for reasons of national security or the safety of any person in the UK, or if an investigation may be prejudiced, so it would be open to the director to make any comments.
It is right that, overall, the director is able to prioritise between the different agencies, while the envelope must reside within Government. We are having to make savings, and that is well recognised across the House. We have to deal with the deficit and a number of other issues, which I will not rehearse in this Committee. This is about being more effective and about using collaboration and co-ordination to step up our response. Amendment 59 is therefore unnecessary, as the director would be unable to restrict or reduce the resources allocated to labour market enforcement functions overall.
Amendments 65 and 66 would extend the director’s remit. The enforcement bodies and pieces of legislation that should be included are those relating to workers who are most at risk of infringement of their labour market rights—workers on low pay, those engaged through agencies or those working in sectors deemed at high risk. They are most likely to be vulnerable to abuse by unscrupulous employers. The amendments would include other areas of state enforcement—namely, health and safety and the protection of child workers. We do not agree that those should be within the director’s remit, and I will explain why.
The Health and Safety Executive, the Health and Safety Executive for Northern Ireland and the health and safety functions of local authorities play an important role in ensuring that risks to health and safety are properly managed in a worker’s place of work. That is a wide responsibility; some of the requirements that those bodies enforce relate to labour market and employment rights, and others to different types of risk, from the storing of chemicals to the training necessary to operate machinery.
We want the director to remain focused on enforcement of the most relevant employment rights. The current way in which the Health and Safety Executive and the Health and Safety Executive for Northern Ireland use their specialist expertise to set their strategy is best placed to protect workers from workplace hazards. However, we are consulting on information-sharing powers for the director. Those will include the ability to share information with other enforcement bodies, including the Health and Safety Executive and local authorities. That will enable all enforcement bodies to take a shared view of risk, and that is the right way to approach the issue.
Similarly, the Children and Young Persons Act 1933 provides protections for those younger than 18 who work. It covers a range of scenarios, from very young children who may act or model, to older children who take a job in the school holidays. While the protections that it affords can be seen as employment rights, they are fundamentally about protecting children and their health, wellbeing and education. That naturally fits with local authorities’ other responsibilities towards children and young people. We do not believe it would be in the child’s best interest to separate this piece of legislation and enforcement and have it within the remit of the director. We think that local authorities are best placed to know the particular risks in their areas. As I have indicated, the sharing of information and intelligence is the most effective way in which the provisions in the Bill can contribute to that important work.
Paul Blomfield
Will the Minister elaborate a little on how he sees that information sharing developing? Given the scale of the HSE inspectorate’s opportunity to identify, for example in the construction industry, wider labour market abuses, that is clearly significant. I am keen to hear how the Minister anticipates HSE inspectors being briefed, trained and supported on those wider potential labour market infringements, in a way that would inform and guide the other three agencies under the jurisdiction of the director of labour market enforcement.
James Brokenshire
The hon. Gentleman will be aware that information sharing is a specific point in our consultation. There are barriers—legal and otherwise—to sharing data between enforcement bodies. That is why we are consulting on that point, and some suggestions have been highlighted in the consultation document.
We are reflecting carefully on that and have put it out to consultation to consider the most effective and appropriate ways to do so. We want these gateways to information sharing, which we have in other enforcement spheres. I want to reflect on the responses to the consultation on that point to ensure that we act appropriately.
I hope I have set out why we think this role is different in character and nature, in terms of workplace safety and the best interests of the child, and why we do not think it would be appropriate to include the proposal in this part.
Sarah Champion
Does the Minister believe the consultation will be complete by Third Reading and able to influence the Bill?
James Brokenshire
We have today announced an extension to the consultation period. It was originally due to close at the beginning of November, and it has been extended by about four weeks—I can come back to confirm that. I want to ensure that we get the provisions right on some of these detailed points. The consultation may inform later parts of the Bill. Our judgment is that we should ensure that the consultation is framed to get the right responses from those actively engaged at the front end. That is why we have announced a time extension, which I believe will be welcomed by the different sectors.
There were comments about redefining the term “worker”. The clause and the proposed amendment do not redefine “worker” for the purposes of the Employment Agencies Act 1973, the National Minimum Wage Act 1998 or the Gangmasters (Licensing) Act 2004. The coverage of those respective Acts continues to apply. That means that the Employment Agency Standards Inspectorate and the GLA will still tackle non-compliance by employment agencies, businesses and gangmasters, regardless of whether the affected workers have the right to be or to work in the UK.
We see the director as being focused on improving the way we enforce labour market and employment law rules. The Bill is not about extending labour protections to illegal workers, and we think that the director’s focus should be on making sure that workers who are properly here are better protected.
However, we are committed to tackling serious crimes against individuals, whatever their status. We have set out in the modern slavery strategy and the Modern Slavery Act 2015 enhanced powers and an improved approach to tackling slavery and human trafficking, whether victims are trafficked for sexual exploitation, exploitation involving criminal activity or indeed labour exploitation.
That is why we have implemented life sentences for modern slavery offences, new preventive orders to stop harm before it takes place and improved protections for victims such as a statutory defence. We see an important but specific role for the director in supporting this crucial work. The director’s remit includes modern slavery offences where they are committed against a worker or person seeking work, or where a person is subject to slavery, servitude or forced or compulsory labour. We are also consulting on additional powers for the Gangmasters Licensing Authority to include tackling such offences in their proposed enhanced enforcement role. I draw Members’ attention to that.
We think the balance is right. The director’s role is focused on workers who are here legally, although he can include in his plans action against forced labour as well. Trafficking people from around the world to work in brothels in the UK is an absolutely unacceptable crime, but we judge it is right for the director of labour market enforcement to tackle those aspects that are within the remit outlined in the Bill.
Keir Starmer
I wish to understand what the Minister has just said, because it is a concern in relation to the amendment. Is the Minister saying that an amendment along the lines of amendment 64 is simply unnecessary because the individuals will be fully included within the protection, or that, contrariwise, they are not fully included, but that hopefully the strategy will include action that would protect all workers in the broader sense? To be specific, is it that amendment 64 is simply not required and is a misunderstanding of the definition or limitation, or is there a broader point? It is quite important.
James Brokenshire
I think it is the latter of the two points that the hon. and learned Gentleman has articulated. We think it is covered by other means, but, for the purposes of defining the specific role, it is about lawful entitlement to be within the UK. For the reasons that I have outlined, there are other mechanisms and ways in which the issue is being addressed. It is about labour market enforcement and the lawful upholding of existing legislation. The amendment appears to take us in a direction that would apply new rights to those who are here illegally, whereas there are other mechanisms through the linkages, through the rights that the Gangmasters Licensing Authority will have, and through the consultation. It is about the extension of those aspects through other means. That is why I made the point about the specific role for the director in supporting this crucial work through a different mechanism, through the work that the Gangmasters Licensing Authority will take forward. The role concerns the lawful upholding of existing labour rights, rather than the extension of those rights, which the amendment appears to suggest. That is why we have not found the amendment attractive.
The director’s role that we have proposed supports our wider strategy on modern slavery, enhancing the response to labour exploitation. Crucially, it should not confuse or undermine the responsibility of the National Crime Agency and the national policing lead to lead the operational law enforcement response to modern slavery, overseen by the independent anti-slavery commissioner. Where an illegal worker is a victim of modern slavery, appropriate support mechanisms are available to them via the national referral mechanism. Their status as a victim will be reflected in how they are subsequently treated by the immigration system, including the relevant reflection periods during which the person will be granted leave to remain. There are also crucial protections within the criminal justice system, which we will come to later.
Amendment 62 seeks to specify the content of the director’s annual report in the same way as amendments 57 and 58 did for the director’s strategy. I do not propose to repeat the same arguments that I made in respect of the earlier amendments, but I want to be clear that this amendment is unnecessary.
Clause 4 as drafted states that the annual report must include:
“an assessment of the extent to which labour market enforcement functions were exercised in accordance with the strategy”.
As we expect the director’s strategy to propose how the enforcement bodies should tackle non-compliance, seek remedies for victims and overcome obstacles to compliance, it follows that the director’s annual report will set out how successful the enforcement bodies were at doing exactly these things.
Paul Blomfield
I am still puzzled by the Minister’s comments on amendment 64 and how the director of labour market enforcement would be able to consider all workers irrespective of their immigration status. If I understood him correctly, undocumented victims of trafficking would not be covered by the work of the director. If that was the case, would that not hinder his or her work?
James Brokenshire
No. It is complementary to the work of the National Crime Agency and the independent commissioner, so the Bill provides clarity in that regard.