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Finally, Amendments Nos. 178 and 179 are minor technical amendments. They are necessary for completeness to add a missing definition of successor in paragraph 25 of Part 2 in relation to demoted tenancies, where the general assured tenancy succession rules would apply.
Baroness Hamwee: My Lords, transferring tolerated trespassers is almost as difficult as, She sells seashells. The noble Baroness said that my amendments are not that easy. If I have learnt anything about housing law it is that it is not that easy. I beg leave to withdraw the amendment.
(6A) A review notice may not be served in relation to a determination which is subject to a re-determination required in pursuance of section 128(3) (but this does not prevent the service of a review notice in relation to the re-determination).
(9A) This section does not apply to a determination which is subject to a re-determination required in pursuance of section 128(3) (but this does not prevent this section applying to the re-determination).
Clause 304, page 138, line 42, leave out from intention), to end of line 47 and insert in paragraph (b), for the words from , the service to the end substitute (or where the landlord exercises his right to have the value of the dwelling-house re-determined by the district valuer), the relevant event.
Clause 304, page 139, line 14, leave out from tenant), to end of line 18 and insert in paragraph (b), for the words from , the service to the end substitute (or where the right to have the value of the dwelling-house re-determined by the district valuer is or has been exercised by the landlord), the relevant event.
The noble Earl said: My Lords, this is a JCHR amendment, which I must admit I had difficulty getting my pea-sized brain around, but I think that it can be summed up as this. If you are a mother with five children whose immigrant status is not settled, the old law discriminated against them. The court found that wrong. The Government, at the pressing of the noble Baroness, Lady Hamwee, and others, introduced an amendment in Committee that set about rectifying the matter. However, they said that those people, instead of being on a par with someone whose entire family had completely normal immigrant status, could get only a 12-month short-hold tenancy. This seems to several of us to continue to be discriminatory and liable to fall foul of the lawyers and the courts when they get their hands on it. The Government have said that very few people are involved. However, one of the signatories to the letter to the Government alleged that the number is rather more. All I am really asking is: please will the Government explain the discriminatory action in their amendment? This requires serious
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Baroness Andrews: My Lords, I fear that I am not going to be as brief, succinct or clear as the noble Earl. He is absolutely right that this is hugely complex, and I will have to explain it for the record if he will bear with me. We had a long exchange in Committee about this, and I am afraid that my explanation this evening will be much the same. I will also have to reply to the letter from the Joint Committee on Human Rights. We received it only yesterday and I have not had time to reply, so I will address the contents of that letter as well.
Baroness Andrews: 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 Governments 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 Governments remedy in Schedule 15 is to ensure that, in future, households in these circumstances will be provided with suitable housingthat is the big step forwardwhile 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 Earls amendment seeks to effect a remedy with a short clause of just two lines, whereas the Governments own amendments extend to a rather long and very detailed schedule. The noble Earls amendment would
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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 illegallythat is, he requires leave to enter or remain in the UK and does not have itor 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 Earls 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 Earls 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 paragraph that
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There is another, broader, issue to be considered. The noble Earls 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 Governments 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 Earls amendment will not serve his purpose, and is why Schedule 15 to the Bill, which delivers the Governments 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 needthe 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 fundsreferred to as restricted persons in my amendmentsshould 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 JCHR letter. Unfortunately, I have not been able to reply. The Committee asked for a fuller explanation of the Governments 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 courts 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 housingit is a scarce resource which brings valuable benefits with it, including the right to buyis 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.
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