Immigration Bill Committee

Written evidence submitted by Hansen Palomares Solicitors (IB 39)

IMMIGRATION BILL 2015 ("THE BILL")

1. Summary

1.1. Research carried out by us and others indicates a serious level of unlawful discrimination on grounds of nationality in the private rented sector.

1.2. If the Bill becomes law unlawful discrimination on grounds of nationality will in all likelihood become worse;

1.3. Evictions by private landlords without a court order, which are currently unlawful, will become lawful if the tenant/occupier is a "disqualified person";

1.4. Private landlords will be encouraged and have effective immunity to carry out unlawful evictions of tenants/occupiers they believe to be disqualified persons;

1.5. County court judges will be required to make decisions on issues of immigration law of which most have little or no experience. This will lead to errors, injustice and court time being spent on appeals.

2. Who we are

2.1. We are a law firm located in Lambeth, London since 1995. Most of our work is in relation to housing, including the defence of possession claims and applications for housing by homeless people.

2.2. Since May 2014 we have been conducting factual research with the assistance of a community organisation, Citizens UK, to test the incidence of unlawful discrimination in the private rented sector.

3. The Immigration Act 2014 ("the 2014 Act")

3.1. The 2014 Act introduced 'Right to Rent' checks which mean that, before granting a tenancy, landlords and agents are required under s 22 to ensure that the prospective tenant and occupiers are not disqualified by their immigration status from remaining in the United Kingdom, i.e, is not a "disqualified person". Under ss 23 – 24 the Secretary of State has power to issue to issue a penalty notice requiring payment of up to £3,000 by a landlord/agent who authorised a disqualified person to occupy premises under a tenancy agreement.

3.2. Some tenancies are excluded from these checks, notably social housing tenancies provided as a result of statutory provisions. In general therefore the 2014 Act applies to the private rented sector only.

3.3. Under s33 of the 2014 Act the Secretary of State in October 2014 issued a code of practice to prevent contravention of the Equality Act 2010 by landlords or agents when they seek to comply with the 2014 Act. However, by virtue of s 33(6)(a) a breach of the Code does not make a person liable in civil or criminal proceedings.

4. Immigration Bill 2015

4.1. Clause 12 of the Bill seeks to amend the 2014 Act so that it would be a criminal offence punishable by fine or imprisonment for a landlord and/or agent to authorise a disqualified person to occupy premises (see clause 12(2) creating new sections 33A and 33B to the 2014 Act). Punishment would include imprisonment for up to 5 years on conviction on indictment or up to 12 months on summary conviction (see proposed additional section 33C(1) to the 2014 Act).

4.2. Eviction of a residential occupier without a court order is currently a criminal offence (s1 Protection from Eviction Act 1971). Such conduct would be legalised by clause 13 of the Bill provided it is in respect of a "disqualified person":

4.2.1. New Clause 33D imported by the Bill into the 2014 Act would enable a private landlord to serve 28 days' notice of termination on receipt of notification from the Secretary of State that a tenant/occupier is a disqualified person (s 33D (1) and (4)). The landlord's notice would have the effect of a High Court order (s 33D (6).). The tenancy would be excluded from the Protection from Eviction Act 1977 (s 33E (4)). A private landlord would therefore be able to evict a tenant without a court order.

4.2.2. In addition to legalising conduct by landlords which under current law would be a criminal offence these provisions of the Bill will encourage unscrupulous private landlords to commit acts which will continue to be unlawful. Some will not wait for 28 days to evict an occupier designated a "disqualified person" by the Secretary of State. Others will evict without a court order someone they suspect to be a "disqualified person". Landlords would calculate that most evicted occupiers are unlikely to go to the authorities and that damages in a civil claim would be low and in many cases less than the legal costs of the landlord obtaining a possession order.

4.3. Social landlords, unlike private landlords, would have to apply for a court order to obtain possession from a "disqualified person". It is not apparent why private sector tenants should have less protection than social housing tenants since, on the whole, private landlords are less likely than social landlords to act in a responsible manner.

5. Claims for possession

5.1. The provisions for social landlords are in Clause 14 of the Bill. It adds to the Housing Act 1988 a new ground (Ground 7B) for social landlords to obtain mandatory orders for possession where the Secretary of State has served notice on the landlord and the court is satisfied that the tenant is a disqualified person [1] .

5.2. Claims for possession are normally heard in the county court (see rule 55.3 of the Civil Procedure Rules). As noted above, before granting a possession order to a social landlord the court would need to be satisfied that the tenant is a disqualified person. However, most judges in county courts have little or no experience of deciding issues of immigration law, which is a specialist area with a separate specialised forum, the Immigration and Asylum Tribunal Chamber. They are therefore likely to make mistakes which would result in injustice, mistakes, possession orders which should not have been made and court time being spent on appeals.

6. Equality Act 2010 ("the 2010 Act")

6.1. It is unlawful under the 2010 Act to discriminate in relation to protected characteristics. Race, including nationality, is a protected characteristic (see s9 of the 2010 Act).

6.2. Section 149 of the 2010 Act requires public authorities and those who exercise public functions to have due regard to the need to eliminate discrimination prohibited by the Act, to advance equality of opportunity and to foster good relations between persons who have a protected characteristic and those who do not.

7. Our factual research

7.1. We have gathered data on the incidence of discrimination in the private rented sector by comparing responses by landlords and/or agents to "mystery shoppers" likely to be perceived as British or non-British enquiring about the availability of properties for rent. The nationality of the enquirers was not provided and responses were therefore on the basis of appearances, names and/or accents.

7.2. Up to now we have carried out 75 tests in London and the Midlands:

7.2.1. 24% (18 tests) showed straight forward unlawful discrimination. Properties were offered for viewing to the person who appeared to be British but not to the person who appeared not to be British;

7.2.2. An additional 11% (or 8 tests) showed more subtle discrimination. For example, a promise of a call back was only made to the person who appeared to be British and not to the person who appeared not to be British, or the apparently non-British person was asked about receipt of benefits whereas the apparently British person was not.

7.2.3. Therefore, in 35% of the tests (or 26 tests) there appeared to be evidence of unlawful discrimination.

8. Local Authorities and Borough Councils

8.1. In addition to the above research we have made requests under the Freedom of Information Act to all 33 London Boroughs and 9 other Borough Councils in England and Wales.

8.2. They are all Local Housing Authorities who have duties under the Housing Act 1996 ("the 1996 Act"), to provide assistance, to people who are homeless. An applicant who satisfies all the requirements of the 1996 Act is owed the "full housing duty". This requires the Authority to ensure that temporary accommodation is provided to the applicant and any family members until permanent accommodation is secured. The 2014 Act and the current Bill do not apply to offers of accommodation pursuant to this duty.

8.3. However an applicant who satisfies only some of the requirements of the 1996 Act can still be eligible for assistance from the Local Housing Authority to find accommodation. Assistance is only provided if the applicant is deemed eligible, which means having immigration permission to remain in the UK. The level of assistance is not defined in the 1996 Act but in our anecdotal experience it often means very basic assistance such as providing a list of private landlords to the applicant and with no direct contact taking place between the Local Housing Authority and the landlord in respect of the individual applicant.

8.4. In the FoI requests (a sample is attached) [2] we asked Local Housing Authorities to provide information about their practices when referring people to the private rented sector and for data on homeless applications from April 2012 to September 2014. All Local Housing Authorities, bar one, provided data in response. This showed that:

8.4.1. Approximately 58,009 applications were made to them for housing assistance during the April 2012 to September 2014 period. This constitutes approximately 20% of the UK total [3] .

8.4.2. Approximately 11.8% (6,874) of those seeking housing assistance from the respondents were non-EU nationals and just under 10% (5,220) were non-British EU nationals;

8.4.3. More than 23% (13,701) of eligible applicants were referred to the private rented sector.

8.4.4. The Local Housing Authorities showed no consistent approach when selecting private rented sector landlords for their referral lists. Some Authorities displayed elements of good practice, such as requiring landlords to be registered with an Accreditation Scheme, but others had no requirements whatsoever.

9.
Other evidence

9.1. On 3 September 2015 the Joint Council for the Welfare of Immigrants published its '"No passports equal No Home": An independent evaluation of the 'Right to Rent' scheme' [4] . This report found that:

9.1.1. 42% of landlords surveyed for the Report said that the Right to Rent requirements had made them less likely to consider someone who does not have a British passport;

9.1.2. 27% of landlords were reluctant to engage with those with foreign accents or names;

9.1.3. Checks were not being undertaken uniformly for all prospective tenants, but were instead directed at individuals who appeared to be ‘foreign’;

9.1.4. 65% of landlords were much less likely to consider tenants who could not provide documents immediately;

9.1.5. 69% of landlords did not consider that they should be made to undertake checks of immigration status;

9.1.6. 77% of landlords were not in favour of a national roll out of the Right to Rent scheme.

10. Conclusions

10.1. There is evidence of significant unlawful discrimination in the private rented sector against those perceived to be non-British nationals when trying to obtain accommodation.

10.2. The proposed increased penalties in the Bill for landlords/agents will in all likelihood lead to increased unlawful discrimination as landlords/agents seek to avoid dealing with those they deem to be non-British nationals out of fear of a criminal conviction and/or because of the burden of additional checks on those who appear to be non-British nationals.

10.3. A significant number of applicants to Local Housing Authorities for housing assistance (almost 12% in our sample) are non-EU nationals and likely to be affected by the 2014 Act and the current Bill. Many Local Housing Authorities have no systems in place to ensure that those they refer to the private rented sector will be safe from unlawful discrimination by reason of nationality.

10.4. In the private sector the Bill legalises conduct towards a "disqualified person " which would be a criminal offence if it had been towards anyone else ;

10.5. The Bill would encourage unscrupulous private landlords to evict unlawfully anyone perceived as possibly being a "disqualified person".

10.6. In the social housing sector county court judges will be required to decide immigration issues when dealing with possession claims issued under the proposed new Ground 7B of the Housing Act 1988. This is likely to lead to erroneous possession orders, injustice and increased court time being spent on appeals.

10.7. In the circumstances, we submit that Clauses 12, 13 and 14 of the Bill should not be passed into law.

10.8. Should Clauses 12 - 14 be passed we would suggest the following amendments to ensure compliance with the Equality Act 2010:

10.8.1. All landlords in the private rented sector must have accreditation with an approved scheme (such us the London Landlords Accreditation Scheme or the National Landlords Association) before being able to grant a tenancy and such accreditation must include training/information in respect of their obligations not to discriminate on grounds of race/nationality;

10.8.2. Section 33(6) of the 2014 Act should be amended so that a breach of the Code of Practice (under s33 of the 2014 Act) does make a person liable in civil or criminal proceedings.

November 2015


[1] This clause also applies to private tenancies protected under the Rent Act 1977, but it is most unlikely that in practice any such tenancies will be affected by the Bill.

[2] Not published

[3] The number of applications during the same period in the whole of the UK was 315,985

[4] http://www.jcwi.org.uk/sites/default/files/documets/No%20Passport%20Equals%20No%20Home%20Right%20to%20Rent%20Independent%20Evaluation_0.pdf

Prepared 18th November 2015