Twenty Second Report|
Instruments Drawn to the
Special Attention of the House
Immigration (Residential Accommodation) (Prescribed
Requirements and Codes of Practice) (Amendment) Order 2016 (SI
Immigration Act 2014 (Commencement No. 6) Order
2016 (SI 2016/11)
Date laid: 11 January 2016
Parliamentary procedure: negative
Summary: These two Orders extend the Right to
Rent scheme, which has until now been limited to the West Midlands
area, to the rest of England from 1 February 2016. The
scheme requires landlords to check the immigration status of prospective
tenants to see if they have a legal right to reside in the UK.
The revised Code of Practice sets out what documents are acceptable
as evidence of a right to reside. Landlords who fail to undertake
such checks are liable to a fine of £1000. Provisions in
the current Immigration Bill intend to take this policy further.
Although the Home Office conducted a pilot study and published
an evaluation report, which we regard as good practice, the Committee
has received submissions from two organisations criticising both
the size of the sample and the conclusions drawn. The submissions
and responses from the Home Office are published on our website.
On the basis of the information we have seen, it appears
to us that the Home Office needs to do more to publicise the checks,
in particular to the majority of small landlords who do not belong
to a professional association. The Home Office also needs to clarify
the consequential impact on local authorities.
These Orders are drawn to the special attention
of the House on the ground that they give rise to issues of public
policy likely to be of interest to the House.
1. These two instruments are laid by the Home
Office under the Immigration Act 2014 ("the 2014 Act")
and each is accompanied by an Explanatory Memorandum (EM).
2. The Immigration Act 2014 (Commencement No.
6) Order 2016 (SI 2016/11) is accompanied by a copy of the Impact
Assessment (IA) from the consultation exercise in 2013 which has
not been updated.
3. The Immigration (Residential Accommodation)
(Prescribed Requirements and Codes of Practice) (Amendment) Order
2016 (SI 2016/9) amends the list of which documents should be
obtained and copied and how reports to the Home Office should
be made. It also brings into effect the revised Code of Practice
which was laid on 15 December 2015 and has been amended as a result
of the evaluation exercise. Among other matters, the Code sets
out the reasonable enquiries that a landlord should make to determine
the immigration status of prospective tenants.
4. Chapter 1 of Part 3 of the 2014 Act provides
for the Right to Rent scheme, and under it the Secretary of State
can serve a landlord (or an agent if there is one) with a notice
requiring the payment of a civil penalty if he or she has let
accommodation to somebody who is disqualified from renting on
the grounds of their immigration status. The landlord or agent
can establish a statutory excuse against a penalty by carrying
out a document check, and making a report to the Home Office where
required to do so.
5. The scheme was initially commenced in a group
of West Midlands local authorities on 1 December 2014. An evaluation
of the first six months of the scheme was published on the Gov.UK
website on 20 October 2015.
The Home Office states that the evaluation found that landlords,
letting agents and housing associations were carrying out Right
to Rent checks and as a result of the scheme: 13 referral notices
for civil penalties were served; 109 individuals who were illegally
in the UK were identified; and 37 enforcement visits took place.
6. The Commencement Order extends the scheme
to operate across the whole of England from 1 February 2016. The
Government state that this lays the groundwork for the new powers
which the Government intend to introduce by means of the Immigration
Bill currently before Parliament. These new measures will allow
for landlords to evict illegal migrants and for criminal action
to be taken against the very worst rogue landlords.
Submissions from external groups
7. The Committee has received submissions from
two organisations about the policy and these are published in
full on our website:
Immigration Law Practitioners' Association (IPLA) takes
a broad approach to the whole policy referring to the 2014 Act
and the current Bill as well as the Orders. They argue that the
pilot study was too small to be conclusive and that this instrument
does not fulfil undertakings made during the course through Parliament
of the Bill that became the 2014 Act. Lord Taylor of Holbeach
said at Report stage of the then Bill:
"I understand the desire of noble Lords
to ensure that the landlords' scheme is "workable" and
that provisions are tested and carefully evaluated. Indeed, it
is our intention to adopt a carefully phased approach to the implementation
and to ensure that we get the guidance and support services absolutely
right before considering wider implementation beyond the first
one of the reasons why the rollout is important is
that we need to check to see if there are any adverse implications
in this policy."
Joint Council for the Welfare of Immigrants (JCWI) also
criticises the size of the pilot study but raises a number of
other issues such as the position of UK residents without documentation,
the potential for increasing racial discrimination and an increased
burden on local authorities.
8. We sought responses from the Home Office to
some of the questions raised in these submissions. Their response
is also published in full on our website. The paragraphs below
briefly summarise the issues raised and the Home Office's response.
Small size of the evaluation
9. ILPA describes the sample size as "tiny",
"an on-line survey had 68 responses, 60
of which (c.90%) were from students. Two-thirds of the tenants
surveyed in the Home Office evaluation were white, giving a sample
size of 23 tenants visibly from ethnic minorities. Some questions
in the on-line survey received as few as five responses. Only
62 landlords and landladies surveyed had taken on a new tenant
since the implementation of the scheme
The evaluation document
itself acknowledges that the evidence base is not robust because
of the small sample size."
10. The Home Office responded that the evaluation
was conducted with the approval of the Landlords Consultative
Panel who considered it robust because of the different methodologies
used, which included 17 on-line surveys with 539 responses, 12
focus groups, 36 interviews and a "mystery shopper"
exercise (which also operated in a comparator area).
11. The JCWI pointed out that the policy appears
to conflict with the obligations on the Government and local authorities
under the Public Sector Equality Duty (set out in section 149
of the Equality Act 2010) which requires public authorities to
eliminate discrimination. The JCWI's own independent evaluation
found that the Right to Rent requirements had increased discrimination:
"Only one British citizen in the pilot area
who responded to the survey had been asked by their landlord whether
they had permission to be in the UK, compared to 73% of non-British
citizens. Furthermore, 42% of landlord respondents stated that
the introduction of the immigration checks had made them less
likely to consider renting to someone who does not have a British
passport and 27% stated that they would be less likely to open
discussions with someone who 'had a name which doesn't sound British'
or 'had a foreign accent'."
12. JCWI also found that 65% of landlords are
much less likely to consider tenants who cannot provide documents
"This will affect anyone who lacks documents
or does not have documents to hand, such as a passport, which
includes 17.5% of the UK population according to ONS statistics.
Evidence, both from the Home Office evaluation and JCWI's independent
evaluation, further suggests that the checks are directed towards
those who 'appear' foreign. Therefore, perfectly legal tenants
who nonetheless lack clear documentation will face discrimination
under these provisions."
13. The Home Office maintained that the evaluation
found "no hard evidence of discrimination" but it is
unclear what was meant by that as the evaluation report states
that "verbatim comments
suggest that there were a
small number of instances of potentially discriminatory behaviour".
In supplementary information provided by the Home Office, they
"mystery shopping research found no major
differences, in black and minority (BME) and White British shoppers'
access to accommodation, between the phase one area and comparator
areas. Additionally, none of the BME mystery shoppers felt discriminated
against as a potential renter in the 166 paired encounters (that
is, in the phase one and comparator location) that took place
during the evaluation. In some instances, BME people were asked
additional questions in the phase one area, however, they were
also more likely to obtain a viewing of a property or be placed
on to customer lists as a consequence."
The Landlords Consultative Panel (which includes
the Equality and Human Rights Commission) accepted the findings
of the evaluation.
14. On the issue of those with a right to rent
who might not have documentation, we asked the Home Office whether
any of the necessary documents were available free of charge.
"The Government accepts that in some instances
a person or body asked to provide a letter of attestation may
choose to charge a fee. The wide range of documents acceptable
in satisfying the right to rent check does, however, provide for
a number of options to the prospective tenant."
The lists of acceptable documents were revised in
the Code of Practice following the evaluation.
15. The penalty for renting a property to an
illegal non-EEA migrant is £1000 for the first offence and
£3000 thereafter. Lesser penalties apply to landlords renting
a room in their house. The impact on the public sector across
the UK in the IA is estimated at £8.64 million over ten years
in costs, with £6.8 million in income from penalties over
the same period.
16. The Home Office states that the checks which
landlords and agents are required to make under this legislation
are consistent with the checks which they are already carrying
out, and the regulatory burden is therefore small. ILPA and JCWI
both believe that the impact on local authorities, who will be
asked to deal with the homeless who have been refused private
accommodation, has been significantly underestimated.
17. The evaluation report indicates that five
out of nine local authority respondents felt that the scheme had
increased their workload. The Home Office told us that respondents
working in social services, homelessness or children's services
tended to comment on larger increases in workloads, but did not
quantify the scale of any additional workload, and that analysis
of the data provided with a comparator area suggested that the
scheme has not led to a major change in the number of homelessness
decisions. The Home Office needs to be clear about the consequential
effects of this legislation on local authorities, and whether
the demand for local authority housing will increase as a result.
Awareness of the scheme remains low
18. JCWI is currently running a telephone survey
to ascertain the level of knowledge amongst private landlords
of the scheme. At the time of writing (mid-January) 46% were unaware
of the introduction of 'right to rent checks' from 1 February
2016, 83% were unaware of the codes of practice and 88% felt they
had not received adequate support and information about how to
undertake the checks. The JCWI also point out that while the Home
Office evaluation report claims that landlords and agents felt
aware of the scheme, almost 60% of landlords with only one property
felt poorly informed or uninformed about the 'Right to Rent' scheme.
JCWI add that small-scale landlords make up 78% of landlords and
are not typically members of the professional bodies with which
the Home Office has been cooperating.
19. The Home Office states that it has an extensive
communications strategy for the scheme and has produced:
revised Code of Practice,
for landlords and tenants,
· An online
· An interactive
user guide for landlords and tenants,
· A suite
of communication materials to be shared with stakeholders to help
communicate the scheme to their audiences.
"These resources have been widely shared
across a range of channels (e.g. by email to stakeholder lists,
press notices, web stories including a story pinned to the front
page of GOV.UK, social media) and the Home Office is continuing
proactive engagement and communications activity ahead of the
roll out to ensure landlords and tenants are aware of the materials
20. However this brief description does seem
to us reliant on individuals being able to use electronic media
and knowing that they need to seek out the information. Although
tenants are not the primary target of the scheme, the Home Office
evaluation report stated that only 22 of 68 felt informed and
22 of 39 had received the information from the university accommodation
service. This indicates that electronic media are not reaching
even the group most likely to use it. From the limited information
we have seen it would appear that the Home Office needs to do
more to publicise the checks, in particular to the majority of
small landlords who do not belong to a professional association.
Objectives of the scheme
21. Paragraph 7.1 of the EM to SI 2016/11
states that the objective of the policy is to restrict the access
of illegal migrants to the private rented sector "which allows
such people to establish a settled life in the UK and frustrates
the necessary process of returning them to their home country.
This creates a significant cost to the public purse and also reduces
the amount of housing stock available to British citizens and
others residing here legally."
22. Both ILPA and JCWI argue that the evaluation
does not address whether the aims of the scheme have been met,
for example whether those without leave have found it more difficult
to obtain accommodation and whether they have left the UK as a
result. The evaluation states that 109 irregular migrants came
to the attention of the Home Office as a direct result of the
'Right to Rent' scheme but, they argue, this number is made up
of referrals provided by internal Home Office teams, external
organizations including government departments, police referrals
and public allegations and thus seems more to do with normal enforcement
activity than with the scheme: elsewhere, the evaluation report
states that just 26 referrals of irregular migrants were specifically
related to the scheme.
23. JCWI adds that of those cases of irregular
migrants where enforcement activity was instigated, only nine
have since left the UK, and 46% of those identified by the Home
Office now have outstanding legal cases (four judicial reviews,
15 family cases, 28 asylum claims) which means that currently
they have every right to remain in the UK.
24. The Government also claim that the scheme
will reinforce action against rogue landlords who target vulnerable
tenants by putting illegal residents in overcrowded accommodation.
However both submissions state that only five civil penalty notices
were issued to landlords as a result of the scheme. Additionally,
JCWI state that eight voluntary and charity sector organisations
that they contacted said that they had found evidence of exploitation
by rogue landlords of people without the right to rent as a result
of the scheme.
Draft Immigration and
Nationality (Fees) Order 2016
25. As a result of the Immigration Act 2014,
the Home Office now increases its fees in a different way. First
an affirmative Order sets the maximum amount that can be charged
for that type of service. If that is approved, negative regulations
set the specific fee for each item. The current Order sets the
maxima and is intended to last for four years. Each year, fee
regulations will amend the price of specific activities but will
not be able to exceed the upper limit for it set out in this Order.
Although the negative regulations are not expected until March,
the Home Office has published the proposed specific fees on the
Gov.UK website. The
Home Office states that the objective is to be able to recover
100% of the costs of front-line Immigration, Border and Citizenship
operations through fees by 2019-20. The Impact Assessment (IA)
to the current Order estimates that the proposed increase in fees
will result in a reduction of about 10,000 migrants per year,
or just over 0.2% of the total 4,000,000 estimated applications
in 2016-17. We note that page 15 of the IA assumes that International
Students deterred by these fee increases will be replaced by EU
applicants. We also note that under the "high displacement"
scenario some students' places might remain unfilled. We asked
whether these assumptions had been discussed with providers of
Higher Education. The Home Office replied:
"We have previously published this assumption
in other IAs related to fee changes, to the best of our knowledge,
we have not received any comments related to that particular assumption
and therefore have not discussed it with Higher Education providers."
This is a regrettable position and, although the
numbers affected may be small, to avoid unintended consequences,
the Home Office should engage with Higher Education providers
to ensure that the fee policy and the assumptions that support
it are robust.
Greater London Authority
Elections (Amendment) Rules 2016 (SI 2016/24)
26. Most of the changes made by this instrument
apply the electoral conduct provisions from the Electoral Registration
and Administration Act 2013 to the Rules for the administration
and conduct of elections for the Greater London Authority (GLA),
and to the ballot papers and forms used by voters at those elections.
Similar changes have already been made for other elections, for
example to allow those in the queue at the polling station at
10pm to be issued with ballot papers. Rule 8 allows for the GLA
ballot papers to be amended so that they can be made suitable
for electronic counting. This change has been made at the request
of the Greater London Returning Officer following tests over a
series of polls to refine the ballot papers' layout and design
to facilitate electronic counting.
INSTRUMENTS NOT DRAWN
TO THE SPECIAL ATTENTION OF THE HOUSE
The Committee has considered the instruments set
out below and has determined that the special attention of the
House need not be drawn to them.
Draft instruments subject to affirmative approval
Immigration and Nationality (Fees) Order 2016
Passenger and Goods Vehicles (Tachographs) (Amendment)
Draft instruments subject to annulment
Designation for the British Board of Film Classification
Elmbridge (Electoral Changes) Order 2016
Instruments subject to annulment
SI 2016/15 Public Lending Right Scheme 1982 (Commencement
of Variation) Order
SI 2016/20 Licensing Act 2003 (Permitted Temporary
Activities) (Notices) (Amendment) Regulations 2016
SI 2016/24 Greater London Authority Elections
(Amendment) Rules 2016
SI 2016/30 Judicial Pensions (Contributions)
(Amendment) Regulations 2016
SI 2016/34 Liberia (Asset-Freezing) (Revocation)
1 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/468934/horr83.pdf. Back
HL Deb, 3 April 2014, col 1089. Back
JCWI (2015) No Passport Equals No Home: Independent evaluation
of the 'right to rent'. Back