Immigration Bill

Written evidence submitted by the Law Society of England and Wales (IB 27)

Public Bill Committee: Immigration Bill 2015-16

The Law Society - Summary

The Law Society of England and Wales is the independent professional body that works to support and represent its 160,000 members, promoting the highest professional standards and the rule of law.

The Law Society recognises the legitimate public policy aim to ensure that there is in place a robust system of immigration control, which is capable of tackling illegal migration and abuse of the system.

The Law Society is concerned that some of the measures proposed in the Immigration Bill (the Bill) would be counter to this legitimate aim, including:

· the proposed removal of in-country human rights appeals for all migrants, not just offenders, which we prioritise in this submission as our primary concern;

· a proposed new criminal offence for illegal working when there is already an existing offence available to the authorities;

· a proposed new offence of leasing premises (ie the extension to private landlords of the duty to undertake immigration status checks);

· the proposed withdrawal of support for the families of failed asylum seekers, as this appears incompatible with the duties placed on local authorities under the Children Act 1989 and is likely to frustrate the aim of removing more failed asylum seekers more quickly.

The Law Society understands that the government is seeking to respond to public concerns about illegal immigration, illegal working and the removal of failed asylum seekers. Our submission is not a commentary on those concerns, rather on whether the proposed measures would be a fair and effective response to them.

Part 4, Clause 31 - Appeals

1. Purpose of clause: to remove in-country human rights appeals for all migrants pending appeal provided that this would not cause ‘serious irreversible harm’ or a breach of human rights.

2. Law Society concerns:

The Law Society opposes the removal of in-country human rights appeals for all immigrants. The Bill is primarily aimed at illegal migrants and illegal working. It is important to understand that legal migrants will be those who are mainly affected by the removal of these appeal rights. In our view, this would be an unjustifiable incursion into Article 8 rights.

3. The Committee will be aware that the Immigration Act 2014 imposed out of country appeals [‘deport now, appeal later’] upon deportation cases; that is, on those who had committed serious crimes and received substantial prison sentences. The Committee will also be aware that the Court of Appeal has recently determined that this regime is lawful in the context of deportation. The Bill would extend that regime to all migrants making human rights appeals, regardless of whether any illegality or criminality has been established or even suspected. Restrictions on Article 8 rights which may be deemed justifiable in one context (for example, national security) cannot be extended to other contexts without further justification.

4. The Home Office should not be permitted to ‘assume’ the decision of an independent tribunal ahead of any hearing of the facts; nor should appellants be placed at the considerable and obvious disadvantage of having to conduct an appeal from outside the jurisdiction. Using a test of ‘serious irreversible harm’ or breach of human rights as the only exception to an out of country appeal appears to be a disproportionately high bar to set for vulnerable and other appellants seeking to avoid removal from the UK.

5. Introduction of this clause would place all appellants at risk of human rights breaches while litigation is ongoing; yet the current appeal success rate is about 40%, so many of those who would be forced to leave the country are people who currently would be successful in their applications.

6. The effect of the Bill would be that people who had committed no offence and who would in fact be granted the right to stay in the UK would be forced to leave the country for an indeterminate period while their appeals were pending. In some cases, that would expose them to significant risks and mean separation from their families. Immigration appeals are currently being listed at least six months ahead, and it is not uncommon for applicants to have to wait a year or more for their appeal to be heard. There is no sign of this situation improving. With delays of this duration, out-of country appeals would in many cases cause severe disruption to family life, with potentially long-term consequences.

7. If the current appeal success rate is maintained the proposed measure could prove costly to the taxpayer, as successful appellants could seek compensation for enforced separation from their families.

8. The proposed appeal provisions would have a perverse impact on UK nationals:

the spouse of a national of any EEA member except the UK would retain a full in-country right of appeal under saving provisions for the Nationality, Immigration and Asylum Act 2002, whereas the spouse of a UK national would have to leave the country.

9. When out-of-country appeals were made, judges would be placed in the invidious position of having to decide appeals without hearing evidence from the appellant in person. Neither the tribunal nor the Home Office would be able to ask questions of the appellant, leading to hearings being decided without full knowledge of the facts. The appellant’s lack of physical attendance could mean that the views and evidence of Home Office presenting officers went unchallenged. The ability of a party to proceedings to give oral evidence is a central component of a fair hearing: appellants who have not been found guilty of any crime should not be denied such a fundamental right

10. In the Law Society’s view, a fairer, more humane and more effective response to public concern would be to resource the tribunals service so that it can determine appeals much more quickly.

Part 1, Clause 8 – Offence of Illegal Working

11. Purpose of clause: to create a new criminal offence of working without leave.

12. Law Society concerns:

The Law Society questions why there is a need to create a new offence when an illegal entrant or overstayer is already liable to a sentence of up to six months under section 24 of the Immigration Act 1971, and a person who breaches a condition of leave (such as working when work is prohibited) can receive the same conviction.

13. The creation of parallel criminal offences is wrong in principle and creates confusion. The problem is not that there is no offence that can be prosecuted or that no action can be taken against employers or employees. The problem is with the lack of resources for inspection and enforcement. The creation of additional criminal offences is not going to help with that.

Part 2, Clause 12 – Offence of leasing premises

14. Purpose of clause: to make it an offence for a landlord or agent to knowingly lease a property or has reasonable cause to believe that a property in their control is occupied by person who is disqualified as a result of their immigration status. In such circumstances landlords and agents face being fined or potentially being imprisoned for up to five years.

15. Law Society concerns:

Risk of promoting unlawful discrimination

There are reportedly over 400 relevant documents that are issued by countries within the European Economic Area. An obligation to check the immigration status of a tenant would seem likely to result in some landlords only being willing to rent to British passport holders, notwithstanding the Code of Practice issued by the Home Office in an attempt to mitigate the risk of unlawful discrimination.

16. The Bill appears to assume that all prospective tenants who were born in the UK will hold a valid passport, but many people do not, so the proposed new offence would put some UK citizens at risk of being refused accommodation unjustifiably.

17. A person might have a right to rent property without being able to evidence it (for example ‘Zambrano’ [1] carers of British citizens). A person’s immigration status can also change. The likelihood is that faced with the complexity of whether a person has the right to rent, a landlord is likely to choose not to rent to any perceived foreign national. [2] The obligation to undertake such checks seems likely to increase the risk of claims being pursued against landlords under the Equality Act 2010.

18. Disproportionate impact on live-in landlords

It appears disproportionate to apply the duty to carry out immigration status checks to live-in landlords who often let rooms on a short term basis for a few weeks or months, perhaps to friends or family. These landlords do not have to comply with the majority of housing legislation - for example, there is no requirement for a live-in landlord to:

register a deposit; or

evict by means of a possession order or comply with any restrictions in respect of section 21 of the Housing Act 1988.

19. New criminal sanctions

Clause 12 of the Bill would introduce a new section 33C into the Immigration Act 2014 which imposes the following penalties for a landlord or agent who commits an offence under that clause:

if conviction on indictment to a term of imprisonment up to five years and/or a fine of up to £3,000;or

on summary conviction, a term of imprisonment up to 12 months and/or a fine.

20. According to a recent government survey approximately 57% of private landlords manage their own properties [3] : these are significant penalties for ordinary homeowners to face.

21. It is unclear from the legislation how a landlord would be treated if the necessary checks were not carried out and that responsibility had been delegated to a managing agent.

22. As the government has just announced that the West Midlands Right to Rent pilot of the Immigration Act 2014 civil provisions is to be extended across England from 1 February 2016, it is unclear why, if that pilot was as successful as is claimed, additional criminal sanctions are now required.

23. Our view is that the success of the pilot has not been established – the scale and duration of the pilot, and its timing, did not permit a proper assessment. There have been suggestions of evidence of discrimination [4] . It is of some concern that the decision to extend the pilot was taken while the Bill is still going through Parliament, which seems a missed opportunity for scrutiny.

Part 2, Clause 13– Eviction

24. Purpose of clause: to enable landlords to terminate the tenancy of the property is occupied by a person disqualified as a result of their immigration status.

25. Law Society concerns:

Removal without a court order

Clause 13 introduces new section 33D into the Immigration Act 2014. If the Secretary of State becomes aware that a person without a right to rent occupies a property, she can serve a notice on the landlord. The landlord can then serve a notice on the tenant, giving 28 days notice, bringing the tenancy to an end. That notice is enforceable as if it were an order of the High Court. The service of the notice by the Secretary of State has the effect of turning the tenancy into an excluded tenancy (section 3A, Protection from Eviction Act 1977).

26. This means that a tenant who in other circumstances would have had the protection of a court process can now be evicted solely at the instigation of the Secretary of State.

27. The removal of the safeguard of judicial enquiry is a radical curtailment of tenant security and raises questions of how compliant this legislation would be with Article 8 of the Human Right Act 1998.

28. The landlord could request that the High Court enforces the notice; however the Bill does not provide a clear procedure as to how this would work in practice. It also remains to be seen how enthusiastic the High Court will be to lend its powers of enforcement to a possession order that had not been sought or made by a lower court. There is an absence of a clear form of redress in the event of error by the Secretary of State.

29. Other procedures for ending an agreement

Clause 14 also introduces new mandatory grounds for possession for Rent Act 1977 and assured tenants. It is unlikely that these grounds will be used much in practice. A person who is a Rent Act 1977 tenant would have been here since 1989 and would therefore have an exceptionally strong case to be allowed to remain in the UK.

30. Where immigration status is unclear, housing associations are more likely to grant or extend ‘starter’ tenancies (assured shorthold tenancies) and to use the accelerated possession procedure (where no enquiry is made of circumstances) leading to potential unfairness. It is also likely that in similar circumstances, private landlords will be more inclined to use the accelerated possession procedure on tenants who may have a right to rent but are unable to demonstrate it easily.

Part 2, Clause 14 - Order for possession of dwelling-house

31. Purpose of clause: the creation of a new mandatory ground allowing landlords to evict a disqualified tenant without obtaining a court order.

32. Law Society concerns:

New mandatory ground

Clause 14 provides for a new mandatory ground of possession for a landlord following receipt of a notice from the Secretary of State. A new ground 7B is proposed, which would be inserted into the existing possession procedures under the Housing Act 1988, to be available when someone is disqualified from renting as a result of their immigration status.

33. This proposed new ground 7B would almost certainly engage Article 8 of the Human Rights Act 1998. In the Law Society’s view, there is a strong likelihood of human rights challenges which could result in a lengthy and costly process for a social landlord to secure possession.

34. The proposed legislation lacks some detail: it is unclear about timescales for eviction; secure tenancies are not referred to and there is no similar amendment to the Housing Act 1985 proposed.

Part 3, Clause 34 – Support for certain categories of migrant

35. Purpose of clause: to remove support for failed asylum seekers with children (who currently get accommodation and an allowance of £5 a day per person)

36. Law Society concerns:

Local authority duties under the Children Act 1989

It is difficult to see how the proposals under this clause for removing support from families can be reconciled with local authorities’ statutory duties under the Children Act 1989.  A local authority has a duty to all children in its area who are in need, so it is obliged under the Act to assess the needs of families and of those children, and to provide services accordingly.

37. Support as a means of enabling removal

As other witnesses have testified, experience of previous legislation shows that support for refused asylum seekers enables the authorities to remain in contact with them, ultimately to remove them. Families without support are likely to abscond.

38. Quality of decision-making

The proposal to remove the right of appeal appears to be a cynical response to the fact that nearly two-thirds of the cases that go to the asylum support tribunal result in support being given, either because the tribunal upholds the appeal or the Home Office withdraws its original decision.

39. It is a legitimate policy aim to be able to take sanctions against people who have no right to be in this country and are frustrating efforts to remove them or not co-operating with a voluntary returns mechanism. The proposals in this clause would not achieve that aim, and might well serve to frustrate it.

October 2015