Below we reproduce a submission to a current government consultation by Frances Webber, a retired immigration barrister.
Response to consultation document ‘Tackling illegal immigration in privately rented accommodation’.
1. This response does not use the online questionnaire, which frames questions too narrowly and leaves no room for consideration of the principles behind the proposals.
2. I am neither a landlord nor a tenant or prospective tenant, but respond as a recently retired barrister who specialised in immigration and asylum casework.
3. The evidence base It is unclear what the evidence base is for these proposals. In particular, although employer sanctions are cited as a model for the checks landlords will be required to perform and the sanctions for their non-performance, evidence for their efficacy is nowhere set out. But employer sanctions do not appear to have fulfilled what is described as their primary function, ie preventing illegal work. Rather, it is apparent from several authoritative reports (from the TUC’s Commission on Vulnerable Employment, and from charities and academics) that they have exacerbated the problems of extreme exploitation of undocumented migrants.
Studies such as those cited above, and the work of the Joseph Rowntree Foundation and others investigating levels of destitution among refused asylum seekers, indicate that a large proportion of those affected by measures designed to induce them to leave do not leave, because the obstacles to a safe and secure life for themselves and their families are insurmountable in their home countries.
4. The likely effects There is no reason to believe that these provisions will have a different outcome from those in the employment field. Far from acting as a means of persuasion for people to return home, and preventing poor conditions, excessive rent, illegal evictions in the private rented sector, it is likely that the proposed checks will exacerbate the unequal relationship between landlord and migrant tenant or licensee, and lead to more homelessness, destitution and even poorer housing conditions in ‘underground’ locations. I set out more detailed reasons for this assertion below.
5. ‘Simple’ checks on tenants’ status I am concerned that the proposals seriously underestimate the complexity of checking immigration status, particularly in transitional situations (where a period of leave has expired but an application to renew is under consideration at the Home Office; where an appeal against a refusal of asylum is underway; where a passport is at the Home Office for endorsement with refugee status or indefinite leave to remain). From my own experience over twenty years of representing migrants and asylum seekers, I am aware that many of them are unclear about their own status, and endorsements in passports are not as easy to read or understand as those with daily experience of them believe them to be.
Where migrants’ documentation does not provide a clear or definitive answer to questions about their immigration status, the consultation document concedes that landlords will need to phone the Home Office enquiry service to verify or ascertain status. The consultation document itself acknowledges that the average response time to an immigration status query in the employment field is six days. But even if the response time was significantly shorter, the need to make such a call is likely to act as a deterrent. Unlike prospective employers, who have an incentive to perform checks to obtain the services of a skilled non-EEA worker (and there are no or virtually no lawful avenues for employment of unskilled non-EEA workers), landlords, in a sellers’ market, have no such incentive, when they can easily let their property to someone with an unproblematic status.
The difficulties of establishing immigration status reliably were illustrated in December 2012, when Capita (which is contracted by the Home Office to find and remove undocumented migrants) sent emails and text messages to many migrants who were in the UK perfectly lawfully, telling them they had no lawful leave to stay and should make arrangements to leave immediately. These messages caused great worry and distress to those receiving them. Such mistakes indicate that even contractors paid to provide a service find Home Office procedure and documentation difficult, and make it inevitable that many lawfully resident migrants will be wrongly denied accommodation and left homeless as a result, with seriously prejudicial effects on health.
6. Encouraging discrimination, breaching human rights In these respects, requiring checks to be made on prospective tenants can be seen to encourage indirect discrimination contrary to the Equality Act and the non-discrimination provisions of the Universal Declaration and other human rights instruments. They shift the market for rented accommodation decisively in favour of British nationals, who simply have to produce their passport to be approved. ‘Decent’ landlords who do not want to incur penalties will just not house anyone whose status they are doubtful about – which in practice will mean more discrimination against BME prospective tenants, and more homelessness. Refused asylum seekers and undocumented migrants making further representations or seeking regularisation are not the only groups who will in all likelihood be forced to turn to the most unscrupulous and exploitative landlords, and driven literally underground, to hidden housing in basements and the like, or to the streets and parks of our cities.
The Universal Declaration of Human Rights states that ‘Everyone is entitled 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.’ This is repeated in the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights, and in the European Convention on Human Rights. 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 …’ The right to housing, like the right to food, medical and social care, is not absolute, and depends on the resources of each state. But the core of the right in each case is non-discrimination. The proposals deny any form of housing to those without official authorisation to be in the UK, and make renting accommodation fraught with difficulty for all migrants and for many members of BME communities, It is not easy to see how they conform to the principle of non-discrimination at the heart of human rights.
7. Age disputed children The consultation document suggests that ‘for children who are approaching adulthood, landlords may need to satisfy themselves that the people concerned are indeed children’. However, after years of litigation between such ‘age-disputed migrants’ and the Home Office or local authorities, no straightforward, reliable method of age assessment has been reached. It appears that there simply is no foolproof method. It is a matter of concern that the consultation document envisages landlords performing such age assessments.
8. Criminal liability The consultation document assumes the desirability of requiring another group of private persons (landlords) to perform immigration policing functions, on pain of criminal penalties. This principle appears to have become accepted in the immigration field; we have had carrier sanctions since 1987, and employer sanctions since 1997 – but there are few other fields where individuals are required to perform positive acts to avoid criminal liability, apart from terrorism, where failure to report knowledge of a planned terrorist act is a criminal offence. Such a widespread use of criminal penalties for non-performance of such functions by ordinary citizens is striking, and the desirability of further extending the principle perhaps needs more debate than is provided for in the consultation document.
9. More direct ways to improve housing conditions The government’s expressed concern to improve ‘communities blighted by illegal structures – the so-called “sheds with beds” and overcrowded houses that can bring social problems and costs to local communities’ would be more directly and easily achieved by better regulation of housing conditions, rather than their occupants.
View details about the consultation here
Respond online to the consultation here