Housing and Regeneration Bill

My Lords, the noble Earl certainly summed up the crucial points succinctly. I will have to say a bit more about why there is a continuing difference in the treatment of certain people. I would not call it discrimination, but there is a continuing difference. If the House will bear with me, I will have to read my speaking notes on this. This is a complex area of law. As the noble Earl said, in some ways the issue at stake is what help a mixed household, in which household members have different immigration status, should get if its members become homeless. In Committee, I gave a long explanation of definitions of what constituted eligibility, for example. I will not do that here, because I will have to provide more detail in response to the letter from the JCHR. In Committee, I also tabled amendments on behalf of the Government to remedy the incompatibility. These now comprise Clause 312 and Schedule 15. At the time, the noble Baroness, Lady Hamwee, asked whether there might be an opportunity for the Joint Committee on Human Rights to consider the Government’s proposed remedy before the proceedings on the Bill come to an end. Since then, the Joint Committee has helpfully written to me and asked for clarification of some aspects of the remedy. I will address that in a moment. The starting point is this. As the noble Earl said, at present if a British citizen, with a foreign pregnant partner or a dependent child who has leave to stay on condition of no recourse to public funds, becomes homeless and is not vulnerable in his own right, that family will not be housed under homelessness legislation. The Government’s remedy in Schedule 15 is to ensure that, in future, households in these circumstances will be provided with suitable housing—that is the big step forward—while continuing to ensure that people from abroad with no claim to UK public resources cannot confer entitlement to long-term social housing. Long-term housing is what we are talking about here. It will not have gone unnoticed that the noble Earl’s amendment seeks to effect a remedy with a short clause of just two lines, whereas the Government’s own amendments extend to a rather long and very detailed schedule. The noble Earl’s amendment would remove only part of the provision that has been declared incompatible; that is, Section 185(4)(b). The other part, Section 185(4)(a), stays in place. One prevents local authorities taking account of ineligible family members, which is the sort of family he describes, for the purpose of establishing priority need. The other prevents account being taken of ineligible family members for the purpose of establishing homelessness. Both have been declared incompatible, but only to a limited extent. In fact, there may be no need to sweep away completely either of those provisions. The noble Earl’s amendment sweeps one away completely but not the other one. He obviously wants to take our remedy out of the Bill completely. I believe in simplicity, and I would like to be able to deliver a neat solution. However, the reality is that those declarations of incompatibility give rise to very difficult policy issues that bear on the interface between immigration policy and the provision of social welfare assistance. The declarations of incompatibility do not lend themselves to being resolved so simply. They have not been easy to resolve, which is one of the reasons for the considerable delay. We are committed to remedying incompatible legislation as quickly as possible, but we must also maintain a strong and fair immigration policy. The principal difficulty for us in these cases is that we do not accept that a person from abroad who is here illegally—that is, he requires leave to enter or remain in the UK and does not have it—or who has been granted leave to stay but only on the condition that he will not have recourse to public funds, should be able to convey on another person priority or entitlement for long-term social housing. The point is this. Homelessness assistance is one thing, but long-term social housing is another. It is a scarce and valuable resource. It offers security of tenure for life at a sub-market rent, as well as other valuable benefits such as the right to buy or acquire and rights of succession. In England and Wales, acceptance of the main homelessness duty brings with it the right to reasonable preference in the allocation of social housing. In about 70 per cent of cases in England, the main homelessness duty is brought to an end with an offer of social housing. The noble Earl’s amendment does not address this problem. On the contrary, it would mean that local authorities would be required to allow anyone who was here illegally or on the condition of no recourse to public funds to convey on another person entitlement to homelessness assistance and thus priority for long-term social housing, with all the benefits that I mentioned. That is not acceptable. There are other issues which the noble Earl’s amendment does not address. There have been two declarations of the incompatibility of Section 185(4). In the second, in the case of Gabaj, Section 185(4) was declared incompatible to the extent that it required a pregnant member of the household of a British citizen to be disregarded when determining not only whether the British citizen had a priority need but whether he was homeless. Section 185(4)(a) is the section that requires ineligible household members to be disregarded when determining whether the applicant is homeless. However, the noble Earl’s amendment would repeal only Section 185(4)(b), which requires ineligible household members to be disregarded when determining whether the applicant has priority need. The amendment does not address Section 185(4)(a). There is another, broader, issue to be considered. The noble Earl’s amendment addresses Section 185(4) of the Housing Act 1996. This section extends only to England and Wales, but there is an equivalent provision in Section 119(1) of the Immigration and Asylum Act 1999, which governs the different forms of homelessness legislation that apply in Scotland and Northern Ireland. Although Section 119(1) has not been declared incompatible, the Government’s view is that it will be incompatible by implication and must be remedied together with Section 185(4). That is a technical explanation of why the noble Earl’s amendment will not serve his purpose, and is why Schedule 15 of the Bill, which delivers the Government’s remedy, is as extensive as it is: it has to make provision in respect of three different jurisdictions. The issue at stake is what should happen if the applicant is eligible for assistance but the dependent child or pregnant partner is not, even if in normal circumstances the dependant would confer entitlement to assistance. Section 185(4) of the 1996 Act and Section 119(1) of the 1999 Act mean that household members who are not eligible cannot be taken into account when deciding whether an applicant is homeless or in priority need—the situation described by the noble Earl. The courts ruled that the application of Section 185(4) to British citizen applicants is incompatible with human rights legislation because it discriminates against those British citizens who are affected. It denies them the help that other British citizens who are not affected will get and the discrimination is not justified. Of course, the noble Earl will know of the Morris case, which was addressed in Committee. Clause 312 and Schedule 15 address the declarations of incompatibility in these cases. The principal effect of Schedule 15 is that the incompatible provision, Section 185(4) of the 1996 Act and Section 119(1) of the 1999 Act, will no longer apply to applicants who are British citizens. Nor will it apply to other eligible applicants with a specific right to live in the UK; for example, Commonwealth citizens with a right of abode or people with an EU treaty right to reside. We have willingly addressed that, which means that these applicants will be owed a duty to have accommodation secured for them where they meet the normal entitlement criteria, even if their application rests on an ineligible dependant. However, as I have said, the Government remain concerned that those migrants who are here illegally or on condition of no recourse to public funds—referred to as restricted persons in my amendments—should still not be able to convey priority or entitlement for long-term social housing. Schedule 15 provides that where a homelessness duty is owed in a restricted case, where the applicant is owed the duty through reliance on a restricted person, so far as possible, the duty should be discharged by arranging an offer of housing in the private rented sector. As the noble Earl said, this housing will need to be made available for at least 12 months and must be suitable for the applicant. It will also need to be reasonable for the applicant to accept the offer. If for any reason the local authority, or the Northern Ireland Housing Executive, is unable to arrange a suitable private sector offer, it would be open to the authority to bring the duty to an end with an offer of social housing. So that remains a final offer. However, any preference or priority for an allocation of social housing normally awarded to someone owed the homelessness duty will be withheld. Restricted persons include illegal entrants, asylum seekers, failed asylum seekers and people who have entered the UK on a visitors’ visa and have overstayed. Schedule 15 does not apply to eligible applicants who are subject to immigration control; for example, someone granted refugee status, humanitarian protection or discretionary leave. The current restrictions in Section 185(4) and Section 119(1) will continue to apply to those applicants. But I should stress that, as now, they will not be able to rely on any ineligible household members to confer priority need or homelessness. I shall weary the House a little longer in order to respond to the specific questions on the ECHR letter. Unfortunately, I have not been able to reply. The Committee asked for a fuller explanation of the Government’s view that our proposals will be compatible. It also asked why we think that maintaining a distinction between those eligible applicants who rely on ineligible household members to convey entitlement and those eligible applicants who do not is justified and compatible with the right to enjoy respect for private and family life without discrimination. As I have said, the Government acknowledge that Schedule 15 will result in a difference of treatment between eligible applicants depending on their particular household circumstances. We have given this very careful consideration and are satisfied that those differences of treatment are justifiable because of the policy considerations. The Court of Appeal questioned the policy objectives underlying Section 185(4). In the court’s view, denying a person from abroad the right to be secured accommodation by a local authority would put pressure on that person to leave the country and where the person was a British citizen with a right of abode that was unjustifiable. First, we acknowledge that British citizens who are habitually resident here and who become unintentionally homeless should be entitled to be provided with accommodation to relieve their homelessness, even where their priority need or homelessness derives from ineligible dependants or other ineligible household members. For all the reasons that I have explained, the provision of long-term social housing—it is a scarce resource which brings valuable benefits with it, including the right-to-buy—is another matter. We strongly believe it is justifiable policy that, as far as possible, restricted persons should not be able to convey entitlement or priority for long-term social housing on another person through the operation of the homelessness legislation. Secondly, we also agree with the Court of Appeal that a clear distinction needs to be made in the application of immigration control between people who have a right to live in the UK and those who do not. People without such a right may be granted leave to enter or remain in the UK. Even where leave is granted they continue to be subject to immigration control. Their leave granted remains subject to the possibility of withdrawal or loss; for example, if they leave the UK for a period of two years or more. It does not confer an unqualified right to be here. In our view, persons subject to immigration control have a lesser claim to social housing than British citizens and others with a right of abode in the UK or a right to equal treatment under EU law. We believe that it is appropriate and justifiable for Section 185(4) and Section 119(1) to continue to apply in respect of housing applicants who are subject to immigration control. We consider that Schedule 15 will deliver a remedy which is compatible with the European Convention for the following reasons. It will ensure that British citizens and other eligible applicants who have a right to live in the UK now will be able to rely on ineligible household members to convey entitlement to homelessness assistance. They will no longer be denied accommodation as a result of the immigration status of their dependants or be placed under pressure which could make them consider leaving the UK because they were unable to obtain accommodation when faced with homelessness. The declarations of incompatibility do not extend to the effect of Section 185(4) on eligible applicants who are subject to immigration control and do not have a right to be here. We do not consider that there is a need to extend the remedy to them. There is strong policy justification, weighty reasons, why people who only have permission to be in the UK should not be able to rely on ineligible persons to convey entitlement to homelessness assistance or priority for long-term social housing. Perhaps I may remind the House that none of that affects the ability of eligible people, such as refugees, to obtain homelessness assistance if they are vulnerable in their own right. The Joint Committee also asked what information the Government have to support my statement in Committee that Section 185(4) affects a very small number of people. We do not routinely collect data that identifies the number of cases where applications for homelessness assistance falls within the scope of Section 185(4). However, in May 2008, my department asked all local housing authorities in England informally to provide an indication of the number of such cases that they have dealt with over the past year. Responses have been received from 188 local authorities—53 per cent of the total—and 57 per cent were nil returns. Many of the positive responses have provided the authority’s best estimate of the cases experienced and are very good initial estimates in grossing up non returns. Between 250 and 400 applicants who were British citizens or EEA nationals may have been affected by the operation of Section 185(4) in England during the previous year. That is between 0.3 per cent and 0.6 per cent of the number of applicants who were accepted as owed the main homelessness duty. The Joint Committee also asked how the number of individuals affected influenced the Government’s approach to the declaration of incompatibility. The numbers affected played no great part in our response. We are committed to remedying declarations of incompatibility as quickly as possible, regardless of the number of individuals who are affected. The cases have proved particularly difficult to remedy because of their impact on the important confluence of immigration policy, social welfare policy and protection of the interests of the UK taxpayer. The Joint Committee also asked whether it would be possible to arrange publication of the Explanatory Notes to accompany the amendments before Report stage, which has not been possible. Explanatory Notes for the whole Bill will be published when the Bill goes back to the other place and I will reply to the letter including details of our estimates. I know that I have wearied the House. I probably have even wearied the noble Earl who asked the question, but, having put that detail and explanation on the record, I hope that noble Lords will agree that Schedule 15 will not only remedy the incompatibility but will genuinely set a fair balance between the interests of UK taxpayers and the rights of individuals who come to the country with no claim on public funds.