My Lords, Amendment 55A is the first in a group of 12 amendments all about who falls within and outside these provisions. This may be stretching it a little bit, but something occurred to me when listening to the noble Lord, Lord Best, talk about a proposed verifying body. However, I have completely lost my train of thought. I had a really good example to support that proposal and it may come back, but I will move on to the specific amendment.
In Amendment 55A, the first paragraph would provide for not only those asylum seekers whose accommodation is provided by the Home Office—they are covered by Schedule 3—but asylum seekers who make their own arrangements for accommodation. It seems to me that they should be excluded also. On a practical level, the state might be forced to provide for those who could otherwise provide for themselves, which is one of those unintended consequences.
As regards paragraphs (b) and (c) in Amendment 55A, provision is made in Schedule 3 for accommodation from or involving local authorities, but that provision is drafted in terms of the homelessness legislation and does not cover other accommodation such as that provided under the Children Act 1989. Section 17 of that Act is used primarily to support children with their families, Section 20 to support unaccompanied children, and subsequent sections to support care leavers. Where a person is without leave to remain, they will not be entitled to social housing or homelessness assistance from the local authority but in limited circumstances a person at particular risk may be accommodated by social services under relevant legislation because of their disability or ill health.
Paragraph (d) in Amendment 55A deals with students, which I think we will come back to. I suspect that I will be pressing the Minister to go further than the amendments being dangled in front of us may go, but I look forward to seeing them. Lastly, Amendment 55A covers young people accommodated in “homestay accommodation”—I think it should have a capital H—while undertaking language courses.
Amendment 55C would provide that there should be no breach when, after entering into an agreement, a tenant becomes disqualified because of his immigration status. This is a matter that the landlords associations expressed concern about in their evidence to the Public Bill Committee in the Commons. It is a probing amendment through which I seek to understand how a landlord is to ensure that he is not in breach without frequent checks. I think that the noble Lord, Lord Best, referred to this on a previous day. If the landlord is satisfied that the tenant is a British citizen, that is one matter, but if the status is complicated or is not permanent, what is the landlord to do? It seems to me that he must keep on asking, which is impractical.
Amendments 55F and 55J are amendments to Clauses 19 and 21, dealing with excuses—that is the term used—available to landlords and agents. Clauses 19(2) and 21(2) excuse the landlord or agent from paying a penalty, having been given notice of the contravention. There is a world of difference between a contravention and merely not paying the penalty when in fact there was no contravention or, in the case of a landlord with an agent, when it was the agent’s responsibility. Therefore, I am seeking to put the position as I think it should be put, because I do not think that it is just a matter of semantics.
Amendments 55G and 55K are amendments to Clauses 19(7) and 21(7). Similarly, Amendment 55H in the name of the noble Lord, Lord Best, is an amendment to Clause 19(7). These amendments allow me to ask whether it is necessary both to have complied with the requirements during the period and to have notified the Secretary of State without delay. The amendments also enable me to ask whether the phrase,
“as soon as reasonably practicable”,
in these clauses means “without delay” in the eyes of the Government. They are not synonyms in ordinary language. I also ask the Minister to confirm that it is possible to notify the Secretary of State “as soon as reasonably practicable” under subsection (6)(a) without following the route in subsection (7)—in other words, that subsection (7) is not the only way to satisfy subsection (6)(a). I appreciate that this is not language that is holding the Committee riveted at the moment, but these small amendments could be important in practice.
Amendment 55L addresses whether or not the documents need to be “of a prescribed description”. The amendment would mean that any document could be used to prove that a person from outside the EEA had a right under European law to be in the UK or, in the case of other persons, that a document granting leave could be used. In other words, how is immigration status to be proved? I appreciate that in many ways it will be easier if there is a list. However, the list of documents has to be complete and accurate, and I am aware of the frequency of the change in immigration rules, which will affect which documents can be prayed in aid in this situation.
European nationals can bring family members with them. I was thinking about that when we were talking about people who are under or over the age of 18. Those family members may be persons from outside
the EU if they have a right to be here and are not under an obligation to possess a document issued by the Home Office. They can apply for one and the Home Office is supposed to provide it within six months. Perhaps the Minister can tell us whether the Home Office wants people falling within this category to apply for documents, as I suspect that that will cause a considerable amount of extra work.
EEA nationals, as a matter of law, should be treated as well as any third-country nationals. It looks as if third-country family members will find it harder to prove their entitlement to be in the UK—even those from a family composed entirely of non-EEA citizens who have visas. There are some small categories of British citizens who do not have passports but can show that they are British through the use of a birth certificate. Is the landlord expected to know that the birth certificate belongs to the individual? The guidance for employers on checking documents, as we have already heard, is very long—more than 80 pages. The amendment probes that area further.
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If the documents are to be of a prescribed description —the Minister alluded to that this afternoon—the Home Office is expecting them to be originals, which should be produced for the obvious reasons of avoiding fraud. Amendment 55M suggests a mechanism for certifying them as true and complete copies as a matter of practicality. What if a landlord says, “Thanks, I’ll take your document away and make sure that it is right”? One would have to be rather trusting of someone holding one of those very precious original documents. What if the Home Office has the papers at the time? There are many situations in which a notary public or solicitor empowered to administer oaths, and so on, can certify original documents showing that they are true and complete copies. Amendment 55M probes that point.
Amendments 55N and 55P would remove the power of the Secretary of State to issue a penalty notice without having established that the landlord has a statutory excuse. The lawyer in me protests that the Secretary of State can issue a penalty notice as soon as he establishes that the person cannot prove a relevant nationality or a right to rent. There will be disputes about liability even before it is established that there is a defence. It would be inappropriate to accuse a private citizen of having broken the law before making any effort to investigate the circumstances.
On Amendment 55Q, under Clause 24(5)(c) the Secretary of State can “increase the penalty” if the landlord or agent receives a penalty notice. In the Public Bill Committee in the Commons, the Minister indicated that an increase would be applied in circumstances when new facts came to light. That was in column 272. I shall not weary the Committee by reading the extract but that is what it amounted to. I am concerned that, by having an unconstrained right to increase the penalty, there will be a danger that objections will not be made and that this provision would act as a deterrent to a perfectly proper notice of objection. I speak as somebody who has not objected to a notice of having jumped a red light when I know
perfectly well that I did not. We know that we cannot defeat the system so we might as well pay up. I see this as an equivalent position.
Finally, Amendment 55S would require the Secretary of State to issue a substantive claim giving the landlord an opportunity to raise the defence before the matter is determined—rather in the way to which I have just alluded, to separate out liability as the first issue from the penalty. I beg to move.