Response to the Consultation Paper on
Tackling Illegal Immigration in privately rented
accommodation.
(Issued by the Home Office on July 2013)
INTRODUCTION
Joint Council for the Welfare of Immigrants (JCWI) is an independent national
charity that provides direct legal assistance to immigrants, and campaigns
for a human rights based approach to the formulation of asylum,
immigration and nationality law. JCWI has been doing this work since
1967.
JCWI actively lobbies and campaigns for changes in law and practice and
its mission is to eliminate discrimination in this sphere. JCWI has been
instrumental in influencing debates on immigration and asylum issues in
both the UK and at European level.
JCWI’s membership consists of many black and ethnic community
organisations and individuals that represent people who will be affected
by the proposed changes. In responding to this consultation JCWI has
been taking the views of these organisations and will continue to do so
during the consultative process.
The questions in the consultation paper are tightly drawn, limit narrative
and work on an assumption that landlord checks will take place. JCWI
opposes these checks as it submits the proposal are unworkable, will lead
to discrimination and racial inequality and will cause social disharmony. If
these proposals are implemented they will pay lip service to the aim of
successive governments to achieve integration and social cohesion. JCWI
is extremely concerned that these proposals will not impact on illegal
immigration but will create serious and lasting divisions within British
society, significantly marginalising minorities and creating a two tier
Britain.
In particular we respond to the over - arching policy focus of checking the
immigration status of potential tenants and the premises put forward in
the consultation document. Our comments on this form the basis of our
opposition to this proposal and should be read in all answers.
We also refer to landlords as encompassing landladies and although we
refer to the term ‘illegal migrants’, as this is the vocabulary of the
consultation, we do not think it is appropriate or correct to call all those
individuals without documentation ‘illegal’. Illegality equates to
criminality. All migrants without status are not criminals.
GOVERNMENT’S PRIMARY OBJECTIVE
The stated primary objective of this policy is to make it more difficult for
illegal migrants to gain access to privately rented accommodation. The
policy is intended to encourage more migrants to choose to leave the
country and hopes that it may reduce the temptation to enter illegally in
the first place.
JCWI is concerned that the intended aim of this policy has no basis in
evidence. There is no evidence that making it difficult for migrants to
access housing will reduce the temptation to enter the country illegally.
Or encourage those who are already here to leave the country.
Undocumented migrants do not usually select housing in the same way as
those with the right to remain in the country. Many if not most have
difficulty obtaining money and securing privately rented accommodation.
Many stay with friends on an informal basis, obtain help from their
community groups or sleep rough. People who enter the UK illegally do so
at great risk and in hope of securing a better life for themselves, the fact
that their immigration status will be checked if and when they are in a
position to secure privately rented accommodation is not a concern for
them as they expect to live in the shadows of society and there is no
evidence that this initiative will change their minds about entering the UK
in the first place. This is confirmed by the work JCWI does with failed
asylum seekers and other undocumented migrants. It is also evidenced
by the work done by the Joseph Rowntree Foundation and others
investigating levels of destitution among refused asylum seekers, it shows
that people who have been refused asylum do not leave because they do
not feel they can build a safe and secure life in their home country.
Most of JCWI’s own clients who do not have leave to remain (and are not
detained) do not formerly rent but stay with friends and other community
acquaintances. These living arrangements and these people will not be
impacted by the proposed changes.
The Home Office has no evidence that immigration checks will result in
illegal immigrants being persuaded to go home by making it more difficult
for them to rent and therefore achieve the aim of the policy.
Shelter’s research shows that 8.5 million people in England currently rent
and a third of those are families with young children and nearly half are
over 35 years old. 1
Research by the LSE in 2009 estimated that 618,000 irregular migrants
lived in the UK in 2007 this included children.2 Even if they were all
privately renting (despite 12-20% being children) this would still be less
than 1% of the 8.5 million people known to live in private rented
accommodation in England alone.
1
7A better deal - towards more stable private renting, September 2012, Shelter. Available online at:
http://england.shelter.org.uk/professional_resources/policy_and_research/policy_library/policy_library_folder/report_a_better_deal__towards_more_stable_private_renting
2
http://www.london.gov.uk/mayor/economic_unit/docs/irregular-migrants-report.pdf
With regard to undocumented migrants who have overstayed their visas,
if they are already in private rented accommodation this initiative will
have no bearing on them. For those whose visa expires during the term of
their tenancy, annual checks from landlords may result in the landlord
becoming aware of this fact and assuming they no longer have the right
to remain in the UK. However, many will have applied for visa extensions
and will be awaiting a decision. Those who have overstayed may seek to
regularise their status post expiry of their visa. In both cases if they have
made an application to the Home Office they may not receive an
acknowledgement or decision for months, making it very difficult to prove
their actual immigration status to their landlord. Overstayers are also
allowed a 28 grace period and during this time will be without status but
will not be illegally here. Are all these people to be evicted and made
homeless because as far as a landlord is concerned they do not have
current leave to remain in the UK irrespective of any subsequent valid
applications they may have made for leave?
It is clear from the figures quoted above and the Home Office’s own
admission that it does not know how many illegal migrants rent privately
and the scale of the problem is unknown. In our submission it is likely to
be very small. The small proportion of illegal migrants who do rent often
find themselves in outhouses that have been referred to as Beds in
Sheds. This has become well known and the Government acknowledges
that some rouge landlords exploit and deliberately target vulnerable
tenants including illegal migrants. Again, there are no actual figures apart
from the two enforcement operations in Ealing which resulted in 36
arrests of suspected illegal migrants and 15 removals. Again data on the
numbers involved is extremely limited however, the Government has
identified this problem and is providing local authorities £2.5million of
funding with more pledged to target of rogue landlords.
JCWI thinks it is right that rouge landlords who exploit the vulnerable are
brought to task. However, if rouge landlords are already being targeted
what is the need for introducing immigration checks upon all landlords
which will increase red tape, cost of renting and most significantly
discrimination against the black and ethnic minority community (BME) as
is discussed more under Discrimination and Racism.
In addition, immigration checks are going to be difficult to undertake
(again please see the section Understanding Immigration Status for a
detailed explanation of this) and there will be a financial penalty if
landlords rent to the ‘wrong’ people therefore there will be a strong
incentive for landlords to rent to British citizens who can easily provide
valid passports perpetuating discrimination against many in the BME
community, making them homeless and forcing them into the hands of
unscrupulous landlords as this could be their only option of securing
housing. These proposals could actually increase the number of rogue
landlords as increasing numbers of BMEs with more complicated
immigration status will find themselves unable to obtain housing easily.
These proposals will be self-defeating in targeting rogue landlords and will
increase the number of vulnerable people open to exploitation.
In light of this JCWI maintains that these proposed checks will not fulfil
the Government’s policy objectives but will have extremely negative
repercussions on all migrants, landlords and the rental sector.
PARRELLS BEWTEEN THE EMPLOYERS SCHEME AND LANDLORDS
The Home Office cites the duty imposed on employers since 1997 to
check immigration status as an example of a well established procedure
which is well understood by small business operating on a scale
comparable to small landlords.
The employers scheme differs from the proposed scheme in many ways.
However, it is actually questionable whether it has fulfilled its objective.
Employer sanctions have not shown that they have eradicated the
exploitation of vulnerable workers and migrants, legal and illegal
migrants form a large part of this group. The primary function of the
employers’ sanctions and duty to check immigration status was to prevent
illegal working, just as the primary aim of these current proposals is to
prevent illegal migrants from accessing private housing. The TUC’s
Commission on Vulnerable Employment in its 2007 report3 showed that
over 2 million people are being exploited with impunity due to their
vulnerability. Most of these are women from black and minority groups
and the disabled. Many will be workers with insecure immigration status.
Thus, we ask what evidence the Government has that in getting
employers to check immigration status illegal migrants have actually been
deterred from employment? It would appear that these people still work
but in ever difficult and exploitative circumstances.
In addition, many small employers actually find it difficult to comply with
the immigration checks and to understand the Home Office guidance on
ensuring they are not employing someone who is illegally here. The
guidance is dense and runs to 89 pages. The list of acceptable documents
provided by the UKBA in May 2013 runs for 12 pages for list A and 11
pages for list B. However, employers face hefty sanctions if they make an
error. A major supermarket chain was investigated last year in November
2012, it was announced that the company has been fined £115,000 for
breaches involving 23 workers. This error in recruiting was despite the
supermarket having professional legal advice on immigration and
employment law. Smaller companies are not so lucky and many cannot
afford legal advice. Between December 2011 and March 2012, the UKBA
revoked the licences of 130 Tier 2 sponsors and ten Tier 5 sponsors. For a
3
http://www.vulnerableworkers.org.uk/cove-report/full-report/index.htm
major business, the fine may be relatively small, however, for many
smaller businesses, a civil penalty of £115,000 would be financially
crippling.
Those businesses that employ migrant workers are often unfairly raided
without specific information at great cost to themselves and their
businesses. Trade unions and workers associations have all reported that
that giving employers immigration responsibilities has often resulted in
confusion among employers, discrimination against minority workers and
repeated prosecution of many small ethnic businesses by the immigration
authorities.
The Government proposes a light touch regime for landlords. But as the
evidence of the employers scheme shows once legislation is in place this
could quickly escalate and become more punitive and bureaucratic
making it more difficult for landlords to rent thus affecting the housing
market, potentially reducing supply and thereby increasing rents.
Many private landlords simply own one property and cannot be equated to
a small business. According to the Department of Communities and Local
Government, in 2010 individual private landlords had responsibility for
71% of all private rental properties in England4. That survey showed that
78% of all landlords in England had only one rental property. Individuals
do not usually have the administrative systems in place to keep records of
tenants which can be confidentially stored as will be required by these
proposals. It is highly unlikely that individual landlords, who are the
majority, will be well versed with data protection law and their storage
and retention of data could well be in breach of the law. Understanding
data protection law creates a further disincentive for private landlords to
let their properties.
Understanding whether people have the right to reside in the UK is
significantly more complex than ascertaining whether someone has the
right to work. Please see our comments in the next section for further
details. In addition, landlords come from all walks of life and backgrounds
and all do not necessarily have the same skill sets as employers, despite
this, as has been highlighted, even employers find it difficult to navigate
immigration checks. Some landlords might find it very hard to understand
their obligations and to ascertain someone’s right to reside in the UK. This
is a significant imposition on an industry that mainly consists of disparate
individuals.
If as a result of these proposed checks landlords have to seek legal advice
to ensure compliance this will be a significant extra cost and an extra
Private Landlords Survey 2010, Department of Communities and Local Government,
October 2011.
4
burden that may force many individuals to stop renting. The economic
implication of this is obvious and the effect on housing stock and rents
has already been stated.
Furthermore, employment law has built in anti-discrimination measures
which allow redress by those who feel they have been unfairly treated. It
is much more difficult to challenge discrimination, victimisation and
harassment from a private landlord under Part 4 of the Equality Act 2010.
UNDERSTANDING IMMIGRATION STATUS
The Home Office consultation states that they will minimise red tape and
will not require landlords to become experts in immigration matters or
assume the burden of enforcement against illegal migrants.
This proposal completely underestimates the complexities of
understanding immigration status and it is unclear how red tape will be
reduced. Understanding immigration status is difficult even for
professionals who work with migrants on a daily basis. Often
organisations working with migrants or even local authorities’ social
services teams seek clarification from a migrant’s solicitor on immigration
status as it is often hard to interpret especially in transition cases what
type of leave a person has, when it is due to expiry and whether or not a
valid in time further leave application has been made. To assume that
landlords will be able to understand the full complexities of immigration
status is naive. Parallels from the guidance given to employers
demonstrate how a list of documents to verify immigration status cannot
be simple. Complexities especially arise in cases of individuals who still
have historic outstanding applications, where the Home office has their
documentation and they do not have biometric cards, or have bio metric
cards but a decision on their application has not been made so it is not
possible to ascertain what leave they have from the card. The Home
Office is obviously aware of the back log of hundreds of thousands of
undecided cases it still has to contend with.
Furthermore, individuals will often not have any identity documentation or
confirmed status but still have the right to remain in the UK. Where for
example, leave has expired and a further application has been to the
Home Office or where an appeal against refusal is underway or even
where a passport for indefinite leave or refugee status is with the Home
Office for endorsement. These individuals would not necessarily be able to
convince a landlord of their right to remain in the UK. Trying to explain
the rights they have and why they are entitled to live here will require an
understanding by the landlord of complex immigration law. Furthermore,
where a migrant’s leave has expired but the 28 days grace period has
not elapsed and a further leave to remain application has not been made
a migrant will not be able to show and any valid leave and will have no
way of proving that they will make a further valid application. In such a
situation it would be impossible for them to demonstrate that they have
the right to rent irrespective of the length of time they have been legally
in the UK and the merits of the further application they intend to make.
Non- EU family members of EU citizens will also be in difficulty. They are
not required by law to apply for a family permit or residence card, but
under these proposals will have to do so to provide correct evidence
unless they can explain and demonstrate their entitlement to the landlord
in another way, but again the landlord would have to understand EU law
and would have to be confident enough in his knowledge to take the risk
of giving someone in that situation a tenancy. With a financial penalty
looming for renting to someone without leave landlords have very little
incentive to take such risks. Proposals that in practice lead to family
permits becoming obligatory may themselves fall foul of EU law.
Even stamps in passports are not always clear for example an individual
may have an overseas passport with no visa endorsed, making it seem to
a lay landlord that they are foreigners without leave but may actually
have a right of abode stamp.
Thus, in order to deal fairly with all prospective tenants landlords will
have to become well versed in immigration law, which is a totally
unrealistic expectation, seek legal advice, again why should landlords
want to incur such costs or rent to those who are British or EU nationals
and can demonstrate this simply by showing a passport. However, not all
landlords will immediately know who are EU nationals and this may
actually favour renting to British nationals only. The indirect
discrimination inherent in this is obvious.
We also assert that in an attempt to keep things simple and prevent
landlords becoming immigration experts as stated in the consultation, the
consultation itself paves the way for indirect discrimination. Furthermore,
it is hard to see how guidance in this area can be kept simple given the
complexities of immigration law. The employers guidance as stated above
runs to 89 pages with long lists of acceptable documentation.
It is further illuminating that Capita, subcontracted by the Home office to
enforce removals last December contacted lawful migrants telling them
they had no leave to remain and asked them to make arrangements to
leave the UK immediately. The confusion and distress this caused cannot
be underestimated. It also highlights the difficulties even a paid
contractor had in understanding Home Office procedure and
documentation. To expect lay landlords to understand this complex area
of law without errors is a ludicrous proposition. The Home Office has no
way of “ensuring” that “checks are straightforward for people looking for a
place to live.”5
Furthermore, the consultation suggests for ‘for children who are
approaching adulthood, landlords may need to satisfy themselves that the
people concerned are indeed children’. JCWI knows from its own
casework that it is notoriously difficult to obtain status for children whose
age is being disputed by the Home Office and no straight forward reliable
method of age assessment has been discovered. Social services can
provide a Merton compliant age assessment but if the Home Office
disputes the child is a minor years of litigation may not resolve the issue,
usually by this point rendering the dispute academic. How then are
landlords supposed to perform valid age assessments? And if a child can
show a Merton complaint age assessment by social services (which the
Home Office is disputing) should the landlord accept what social services
are saying or what the Home Office is saying? Often the Home Office is
over ruled on appeal by an immigration judge, but if a Landlord follows
the Home Office’s position he could be denying a young person
accommodation when they need it the most. Again this is a complex area
of law and to date there is no definitive guide to age assessments yet
landlords are expected to make a definitive decision. Once again the most
likely scenario is that they won’t and will rent to someone else furthering
indirect discrimination.
The consultation also states that where the documentation does not
provide clear or definitive answers the Home Office will operate an
enquiry service to assist in the verification of status. There are multiple
problems with this. It is notoriously difficult to get through to the Home
Office even on a dedicated number. Even if you do get through it is
unclear whether an immediate answer will be available. On the
employment line the average response time to an immigration status
query is 6 days. Whilst employers could be prepared to wait this length of
time to recruit the right candidate for their organisation, in a highly
competitive rental market where properties can often go within days if not
hours it is very likely that the property would be let to someone with a
less complicated immigration status, irrespective of the would be tenant’s
right to remain in the UK. That is on the assumption that a landlord faced
with multiple prospective tenants would even have the inclination to call
the enquiry line.
Furthermore, JCWI’s casework experience shows that there can be a time
lag between an application being submitted to the Home Office and the
same being updated on the computer system. Thus, it is not improbable
that if a status check call was made by a landlord they may not receive
accurate information which could result in someone inaccurately being
5
Consultation document para 20 pg 8
denied a tenancy agreement. As the Home Secretary herself said when
she abolished the UKBA as recently as March 2013, the IT system was
inadequate: “UKBA’s IT systems are often incompatible and are not
reliable enough. They require manual data entry instead of automated
data collection, and they often involve paper files instead of modem
electronic case management. …” 6
Furthermore, the UKBA was abolished due to further fundamental
problems with its ability to process applications. “ The agency struggles
with the volume of its casework, which has led to historical backlogs
running into the hundreds of thousands”.7
Although the UKBA has been disbanded the Home Office has inherited the
problems including the IT system and the back log of cases. JCWI, apart
from disagreeing with the policy behind these proposals, is concerned that
even if the policy was workable, the Home Office is trying to create too
many new systems especially as it is considering setting up systems to
check migrants entitlements to healthcare and bond deposit schemes. It
runs the risk of spending a lot of money and creating further chaos. JCWI
urges caution in moving forward. The Home Office needs to demonstrate
that it has got a grip on the immigration backlog, it is processing new
applications within stated time limit, its computer and operational
systems are running properly and correct staff management is in place
before it takes on three further major initiatives.
DISCRIMINATION AND RACISIM
JCWI’s main concern is that these proposals are very likely to lead to
racial profiling and discrimination against BME prospective tenants. The
consultation at paragraph 34 pg 16 states that checks are not necessary
on all tenants only the people with whom the landlord actually proceeds.
It goes onto say that checks should be performed on a non-discriminatory
basis (i.e without regard to race, religion or other protected
characteristics as specified in the Equality Act 2010) on all adults who will
be living at the property.
This merely highlights the reality of the proposed immigration status
checks. They will serve to encourage indirect discrimination and in many
cases direct discrimination. It will be far easier for a landlord to let his or
her property to a British/EU national who will simply have to produce their
passport to confirm status. The consultation itself quotes the Department
for Communities and Local Government study that indicates more than
half of those in private rented accommodation are non-British or Irish
residents and that most new migrants are housed in the private rental
6
7
Hansard HC Deb 6 Mar 2013 : Column 1500
Ditto
7
sector. Thus migrants will be disproportionately affected by these
proposals.
Landlords fearful of breaking the law or facing a fine will find it far easier
to avoid renting to anybody who could have a complicated immigration
history or anybody’s whose status is not immediately clear. This will
undoubtedly result in BME individuals losing out on tenancies and
increasing their chances of being made homeless.
As stated at the outset JCWI does not support the contention that making
it harder for undocumented migrants to rent will force them to leave the
UK as many do not rent in the open market and are often victims of ‘Beds
in Sheds’. However, these proposals have the potential of forcing other
migrants who are entitled to live here to live in similar conditions.
Currently those without status who do rent resort to living in squalid
conditions at the hands of unscrupulous landlords. If other migrants are
denied accommodation because of their skin colour or race or because
their immigration status is not straightforward, they too may have to
suffer exploitation at the hands of ‘rogue landlords’ exacerbating the
problem that currently exists and creating a two tier British society.
JCWI notes with concern that the unintended consequences of these
proposals could have the worrying ring of ‘no blacks no, no dogs, no
Irish’, exacerbating the problems with race relations in this country, and
potentially creating segregated neighbourhoods with only BME landlords
willing to rent to other BME individuals. This cannot be conducive to
social cohesion and harmony, inter race relations and integration and will
not serve this country well. Marginalising the BME community will
undermine the progress the UK has made since the 1960s in creating a
stable and inclusive multi-cultural society.
The Equality Act 2010, enshrines the principles in international treaties
and the Universal Declaration of Human Rights (UDHR) states that
‘everyone is entitled to to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.’ Article 25 of the UDHR provides that
‘Everyone has the right to a standard of living adequate for the health and
well-being of himself and of his family, including food, clothing, housing
and medical care and necessary social services …’ Whilst, the right to
housing is not an absolute right, it should be absolutely be made available
where possible without discrimination.
JCWI highlights with concern that the indirect effect of these proposals, to
deny housing to those without clear official documentation, which may or
may not be indicative of their actual immigration status, could breach the
Government’s non-discrimination obligations.
These proposals could lead to a society where BMEs find it hard to obtain
housing making individuals, families and children homeless or finding
themselves at the mercy of rogue landlords. The concern is that if more
migrant communities are finding it harder to obtain housing more rogue
landlords will emerge, undermining the Government’s aim to eliminate
this practice. If BME families with children find themselves unfairly
homeless the Government also needs to address how this fits with its
obligations under s.55 of the Borders and Citizenship Act which requires
the best interest of children to be a paramount consideration in all its
policies.
These proposals could undermine the UK’s pledge to create a fair and
equal society and could challenge the Government’s commitment to
equality and diversity rendering it in breach of its national and
international human rights obligations as well as creating further
problems of exploitation, social tensions and a two tier society. JCWI
urges the Home Office to reconsider its proposals in light of this and to
abandon the proposed immigration status checks.
Consultation question 1: The focus of this policy is to check the
immigration status of people who are paying money to live in
accommodation as their main or only home. Given this focus, do you
think the following forms of accommodation should be included in the
landlord checking scheme?
(i) Properties rented out for one or more person(s) to live in as
their main or only home (Yes / no / don’t know)
(ii) Homes which are not buildings – including caravans and
houseboats – if they are rented as the tenants main or only home
(Yes / no / don’t know)
(iii) Homes which were not built for residential purposes – for
example someone renting a disused office as their home, including
“property guardians” (Yes / no / don’t know)
(iv) Further forms of accommodation not described in the
consultation (please specify further forms of accommodation) (Yes
/ no / don’t know)
JCWI does not consider that any of the forms of accommodation
described in the question should be included in the checking scheme.
JCWI opposes the checking scheme for the reasons set out above.
Consultation question 2: Do you think the following forms of
accommodation should be excluded from the landlord checking scheme?
(i) Social housing rented to tenants nominated by local authorities
or to households provided accommodation under the homelessness
legislation (Yes /no / don’t know)
(ii) Privately rented accommodation offered by the local authority
to a person to whom a homelessness duty is owed (Yes / no / don’t
know)
(iii) Sales of homes, including those purchased on a leasehold or
shared ownership basis (Yes / no / don’t know)
22
See ‘Who guards the guardians’, Giles Peaker, Journal of Housing Law, January 2013.
(iv) Accommodation provided by universities and other full-time
educational Accommodation provided by employers for their
employees (Yes / no / don’t know)
(vi) Tourist accommodation such as hotels and guest houses
providing short-term accommodation to tourists and business
travellers (Yes / no / don’t know)
(vii) Short term business and holiday lets (Yes / no / don’t know)
(viii) Hostels providing crisis accommodation to homeless and
other vulnerable people (Yes / no / don’t know)
(ix) Hospital and hospice accommodation for patients (Yes / no /
don’t know)
(x) Care homes for the elderly (Yes / no / don’t know)
(xi) Children’s homes and boarding schools (Yes / no / don’t know)
(xii) Other forms of accommodation not described above (please
specify other forms of accommodation) (Yes / no / don’t know)
JCWI does not agree that there should be a checking scheme. This list
also indicates the complexity of this scheme. Any ‘exclusions’ could be
seen as unfair on certain groups and contrary to anti discrimination
legislation.
Consultation question 3: The Government wishes to exclude tourist
accommodation and short-term business and holiday lets from
immigration checks because these do not usually represent the person’s
main or only home. However, the Government considers checks should
be made if the person stays there for an extended period of time. After
what duration of stay should an immigration check be required?
(i) At the end of one month;
(ii) At the end of two months;
(iii) At the end of three months;
(iv) At the end of four months;
(v) Longer than four months;
(vi) Don’t know?
JCWI does not think there should be any checks and maintains the
scheme is unworkable.
The definition of main home is not simple or clear. Somebody could be in
a holiday let and this could be their main home for a short period of time.
Drafting a main home definition with prescribed times after which it
becomes a main home is not feasible.
Consultation question 4: The Government is interested to know
whether it is appropriate to include lodgers and sub-tenants in the policy.
Should the policy apply to:
(i) Owner-occupiers taking in paying lodgers where the lodger is
living there as their main or only home (Yes / no / don’t know)?
(ii) Tenants of privately rented accommodation taking in lodgers or
sub-tenants as their main or only home (Yes / no / don’t know)?
(iii) Social housing tenants taking in paying lodgers or sub-tenants
where the lodger is living there as their main or only home (Yes /
no / don’t know)
None of the above.
Trying to include a wider group of individuals who are subject to checks
will widen the problems we have highlighted in our submissions to more
individuals. Please see all our comments prior to our response to Question
1.
Consultation question 5: If the Government does decide to include
lodgers and subtenants, then who should be held liable for making the
migration checks on the lodger or sub-tenant?
(i) Always the landlord’s/owner occupier’s responsibility;
(ii) Always the tenant’s responsibility;
(iii) Unless they specifically agree otherwise, the landlord;
(iv) Unless they specifically agree otherwise, the tenant;
(v) Don’t know?
JCWI does not think anybody should be checked. The questions highlights
one of many problems with this scheme. Any such extension means
lodgers and subtenants will have to become immigration experts. We
reiterate our comments prior to our response to Question 1.
Consultation question 6: If you are a current or prospective tenant or
lodger and you are in the UK legally would you
Readily be able to provide one of the forms of documentation in the list?
(Yes/no/don’t know./NA)
N/A
Consultation question 7: Are you in receipt of welfare benefits? If so,
do you have in your possession a letter that is less than three months old
and which evidences your entitlement to benefits that you could show to a
landlord? Which benefits does this relate to?
N/A.
Consultation question 8: What other evidence have you used to
demonstrate your identity for official purposes?
N/A
Consultation question 9: When the requirement for employers to check
employees’ migration status was introduced, the Home Office estimated
that employers would take on average two hours to familiarise
themselves with the new requirements. Do you think the time required
for landlords to familiarise themselves with the new requirements would
be:
(i) shorter than two hours;
(ii) about two hours;
(iii) longer than two hours;
(iv) don’t know?
iii) Longer than two hours.
As we have clearly stated understanding immigration status is complex.
It is not just a question of “familiarisation” there needs to be proper
understanding of people’s entitlement to reside in the UK and a proper
understanding of the different identity cards/documents and stamps.
These proposals also assumes that all landlords are fully literate and able
to digest complex information. Landlords are not employers and not all
have the same skills sets as employers.
Immigration law also frequently changes and landlords would need to be
keep abreast of these changes. In addition a system of record keeping
needs to be set up and data protection law needs to be understood.
Consultation question 10: When the requirement for employers to
check employees' migration status was introduced, the Home Office
estimated that employers would on average take 15 minutes to check the
migration status of an employee. Do you think the time required for
checking the migration status of a tenant would be:
(i) shorter than 15 minutes;
(ii) about 15 minutes;
(iii) longer than 15 minutes;
(iv) don’t know?.
iii) Longer than 15 minutes
The estimate for employers was an enormous underestimate. A complex
case can take many hours. Getting through to the Home Enquiry line for
employers alone can take over 15 minutes
Checking immigration status is complex and a landlord may perform
checks on more than one prospective tenant to pick the right one. See
our submissions on Understanding Immigration Status.
However, if the prospective tenant is a British/EU national and can
provide a valid passport checks will take less than 15 mins. This further
offers an incentive to choose such tenants over others with more complex
identity documents or immigration status. Perpetuating the discrimination
JCWI is concerned about.
Consultation question 11: If the landlord or agent undertaking the
migration status check has a specific enquiry that needs to be answered
by email, what would be the maximum acceptable response period:
(i) one to two working days;
(ii) three to five working days;
(iii) More than five working days but less than two working weeks;
(iv) Two to three working weeks;
(v) Don’t know?
None of the above.
The private rental market is extremely competitive and without an
immediate response landlords rent to those whose identity is straight
forward. The simplest again being British/EU nationals with valid
passports and we repeat our comments on the discrimination this could
lead.
Consultation question 12: If you are a letting agent, would you be
willing to provide a checking service on the prospective tenant’s migration
status? (Yes / no / Don’t know)
N/A. But any letting agent providing this service would need to become
an immigration expert and this would come a cost particularly given
immigration advice cannot be given by anybody who is not registered
with the Office of the Immigration Services Commissioner. This will create
further red tape and costs which will detrimentally effect the rental sector.
Consultation question 13: If you are a letting agent who would be
prepared to provide a checking service, would you be willing to have
liability transferred to you for carrying out the check? (Yes / no / don’t
know)
N/A
Consultation question 15: If you are a landlord who does not currently
use a letting agent, would this policy prompt you to use a letting agent in
the future if they agreed to accept the responsibility for checking the
migration status of tenants? (Yes / no / don’t know/N/A)
N/A. But a landlord would have to incur significant commission fees for
using a letting agent and these would most likely increase if the agent
was responsible for immigration checks. The cost of this could be
prohibitive for many landlords.
Consultation question 16: For properties rented out to a corporate
tenant (i.e. a company), who should be responsible for making checks on
people living in the property?
(i) The landlord;
(ii) The company that rents the property;
(iii) It is up to the landlord and company to agree but, in the
absence of explicit agreement, the landlord should be responsible;
(iv) It is up to the landlord and company to agree but, in the
absence of explicit agreement, the company should be responsible;
(v) Don’t know.
This demonstrates the difficulties rife within these proposals and there is
no simple answer. JCWI does not support checks but if these were to
occur than the best course of action would be for the parties decide
contractual terms themselves so ii/iv.
Consultation question 17: If a tenant provides evidence showing they
have limited leave to remain in the UK, when is the next time that the
landlord or letting agent should be required to repeat the check of their
immigration status?
(i) Immediately after their leave to remain expires (however soon
after the initial check or far into the future that may be);
(ii) after a year (regardless of when their leave expires);
(iii) after a year or when their leave expires, whichever is later;
(iv) whenever the tenancy is renewed / renegotiated;
(v) don’t know.
JCWI does not support checks. However, if checks were made then it
would make sense for further checks to take place after the expiry of the
leave (i) plus the grace period. However, keeping tenants information and
being able to operate a system of alerts to ensure the check takes place
at the relevant time is not a simple process. Many landlords are likely to
forget and what would the sanction for a genuine mistake and how could
you prove that it was such?
Consultation question 18: If you are a landlord or letting agent:
assuming that the legislation, enquiry service and guidance are in place
by March 2014, what is the earliest date by which you will be ready to
undertake checks on new tenants?
(i) April 2014;
(ii) July 2014;
(iii) October 2014;
(iv) January 2015;
(v) later;
vi) don’t know.
N/A. But evidence shows that if schemes that are rushed through fail.
Consultation question 19: If the Secretary of State issues a notice of
liability requiring the recipient to pay a penalty, it is proposed that the
recipient should have the opportunity to deny liability and/or claim that
one or more of a list of ‘statutory excuses’ exists, so that a penalty should
not be payable. These objections must be considered by the Secretary of
State, following which there is a further right of appeal to the courts. Do
you think this approach provides sufficient safeguards for landlords and
letting agents against a notice of liability issued unfairly? (Yes / no / don’t
know)
Don’t know, as more specific details need to be given before we can give
an informed answer.
Consultation question 20: If a landlord or letting agent is found to have
an illegal adult migrant as a tenant, they may be subject to a penalty. Do
you consider that the following penalty levels (per adult illegal non-EEA
migrant) are:
(i) too low;
(ii) about right;
(iii) too high;
(iv) don’t know.?
£1,000 per migrant for landlords or letting agents who have not received
an advisory letter or notice of liability within the past three years
£3,000 per migrant for landlords or letting agents who have received an
advisory letter or notice of liability within the past three years
(iii) too high. JCWI does not agree with the checks or the ensuing penalty.
We do not think landlords/agents should be asked to check immigration
status as this is a difficult and complex task and it is highly likely that
errors will be made. We are also concerned that a financial penalty means
letting agents and landlords will actively seek to let to British/EU nationals
over others leading to discrimination. Please see our submissions
Discrimination and Racism.
Consultation question 21: The Government is considering whether the
policy should apply to lodgers and sub-tenants. If it is decided that it
should apply to them, the Government is minded to apply lower penalties
to those landlords who take into their home up to two lodgers or
subtenants, if their lodger(s) and sub-tenant(s) are found to be illegal
adult migrants. Do you consider the following penalty levels (per adult
illegal non-EEA migrant) for such landlords are:
(i) too low;
(ii) about right;
(iii) too high;
(iv) don’t know?
£80 per migrant for a landlord who has not received an advisory letter or
notice of liability within the past three years
£500 per migrant for a landlord who has received an advisory letter or
notice of liability within the past three years
(iii) too high. Please see our response to question 20.
Consultation question 22: Should local authorities in England and
Wales be able to take a person’s previous record of complying with this
policy into account when deciding whether that person is fit and proper
(or competent) to hold a licence for (or manage) a House in Multiple
Occupation? (Yes / no / don’t know / NA)
No.
JCWI supports a multi-agency approach on the whole, however, we do
not think that these proposals are right and workable and are concerned
that they will lead to discrimination. A further penalty of this nature only
servers to encourage further discrimination in order to avoid such
repercussions. Please see our submissions Discrimination and Racism.
Consultation question 23: Should local authorities in Scotland or the
Housing Executive for Northern Ireland be able to take a person’s
previous record of complying with this policy into account when
considering licence applications for a House in Multiple Occupation?
(Yes /no / don’t know)
No. Please see our response to question 22
Consultation question 24: [To be answered by landlords and letting
agents]
Given that you are already subject to the Data Protection Act, does the
requirement to check tenants’ migration status add substantially to the
work you need to do in order to be compliant with the Data Protection
Act? (Yes / No / don’t know)
JCWI is not a landlord or letting agent,
Consultation question 25: [To be answered by landlords and letting
agents] On average, how long do you keep records of your past tenants?
(i) Dispose of immediately after the tenant’s departure;
(ii) Up to a year;
(iii) Longer than a year;
(iv) Don’t know.
JCWI is not a landlord or letting agent.
For further information contact Saira Grant, Legal & Policy Director
JCWI, 115 Old Street, London, EC1V 9RT. TEL: 020 7553 7463