Memorandum from the Home Office
ACT 2001 (ACCOMMODATION
ORDER 2002 (S.I. 2002/2367)
1. The Committee has requested a memorandum on the
following two points:
(1) This instrument was laid before Parliament
on 17 September 2002 and came into force on 30 September 2002.
Explain the reason why the 21 day rule was breached, and why no
explanatory memorandum was submitted to the Committee (see paragraph
5.22 of Statutory Instrument Practice).
2. The reason the 21 day rule was breached was to
ensure that the Order was in force on 30 September 2002, this
being the date that the relevant provisions of the Housing (Scotland)
Act 2001 (the "2001 Act") came into force. The 2001
Act introduces a new form of tenancy right in Scotland, the Scottish
secure tenancy. This Order provides that a tenancy granted to
asylum-seekers under Part VI of the Immigration and Asylum Act
1999 (the "1999 Act") is not a Scottish secure tenancy
unless the tenant is otherwise notified by the landlord.
3. If the Order had not come into effect on the 30
September, there would have been a risk of the new form of tenancy
right being acquired by asylumseekers already accommodated
by local authorities in Scotland otherwise than under the 1999
Act. This would affect the ability of the Home Office to arrange
temporary accommodation for asylumseekers in Scotland without
the new form of tenancy arising.
4. The need for the Order had only been recognised
at the end of August, and a number of last minute technical issues
needed consideration by the Home Office, Scotland Office and Scottish
Executive. The Home Office therefore considered it necessary to
depart from the 21-day rule and apologises for any inconvenience
5. The Home Office was aware that an explanatory
memorandum needed to be submitted to the Committee, and such a
memorandum was drafted. However, due to administrative error,
it was unfortunately not submitted to the Committee. The Home
Office apologises for this oversight.
(2) Article 3(2) provides that a tenancy mentioned
in paragraph (1) becomes a Scottish secure tenancy if the landlord
notifies the tenant that it is to be regarded as a Scottish secure
tenancy. Is it intended that the landlord should be able to notify
either in writing as well as orally? If the intended effect is
that the landlord must notify the tenant in writing, should this
not have been made clear, either by saying so expressly or by
replacing "notify" by "serves a notice on"?
6. The term "notify" was used in Article
3(2) to reflect the wording in paragraph 82 of Schedule 14 to
the Immigration and Asylum Act 1999, which inserted paragraph
5A into Schedule 2 to the Housing (Scotland) Act 1987. It is intended
that the landlord should be able to notify the tenant orally as
well as in writing, so the Home Office respectfully considers
that the wording is clear.
11 November 2002