Landlords: police or prisoners?

Scotland’s devolved Government and Parliament have, since their inception, been committed to revitalising the private rented sector. The introduction of the Immigration Bill 2015 could seriously impact on that programme of reform.

One of the concerns in respect of the bill is that landlords in the private rented sector could be turned into immigration police. The proposals could be seen as introducing a double standard with regard to the issue of discrimination, as there is a fine line between fulfilling the new duties and discriminating against prospective tenants.

The Immigration Act 2014 established a new “right to rent” scheme in the private rented sector in England & Wales; the purpose of the scheme was to integrate immigration checks into the tenancy application process.

This means that landlords are now required by law to check the immigration status of their proposed tenants. The 2015 Bill – now in the House of Lords after passing through the Commons – further extends these provisions to Scotland and imposes sanctions against those landlords who fail to carry out the required checks. The bill in its current form gives considerable cause for concern in respect of the possibility of unlawful discrimination being promoted following its eventual implementation.

Migrant history

Immigration is not a novel experience for Britain, both historically and in the more recent past. Immigrants, asylum seekers and refugees are all defined differently in law, but in reality each and all have highlighted recent discrimination issues.

All three groups are seen as having put pressure on the housing stock. During the First World War Britain saw an influx of refugees; a similar situation occurred during and after the Second World War. Polish migrants during the 1900s also contributed to accommodation issues in the private rented sector. Further issues respecting accommodation quickly became apparent with the 1940s Windrush crisis of Commonwealth immigrants. In 1972, as a result of the Ugandan political crisis, the UK experienced an influx of Asian Ugandan asylum seekers. Irish immigrants experienced blatant discrimination up until the 1965 Race Relations Act.

Once immigrants, asylum seekers or refugees came to Britain this highlighted divisions in society, and in some cases motivated race riots. Previous regulations created an environment which provided for discrimination and hostility for those entering the UK; many immigrants lived in poor quality housing.

The Scottish Government is concerned that the UK Government’s approach to immigration only fuels the misconceptions around migrants. While the new legislation will pose problems for landlords, it will also perpetuate an environment for homelessness. Housing & Welfare Minister Margaret Burgess believes that the legislation risks driving vulnerable migrants to rent from landlords who are happy to flout the law. This will exacerbate the problems experienced by immigrants throughout history and push those who have the right to stay in the UK to illegal and corrupt landlords.

Penalty, and temptation

Considering the immigration issues that Britain has already experienced, the explanatory notes for the bill state that it contains measures to tackle illegal working which will act to enhance the enforcement of labour market rules. This is hoped to deny illegal migrants access to services including housing and banking, through providing new powers for immigration officers. However landlords will also be required to pursue legal proceedings against someone who does not have the right to remain in the UK – is that not the role of the Home Office and UK Visas & Immigration (formerly UK Border Agency), and not private individuals or businesses?

For example, someone whose right to remain is challenged could be in a situation where their landlord must pursue their ejection. The state must ensure that they are accommodated pending the outcome of their judicial review. Currently in Scotland the eviction process in the private rented sector is under the jurisdiction of the sheriff court, though the reforms brought about by the Housing (Scotland) Act 2014 will shift the powers to a new First-tier Tribunal. The powers of the tribunal have yet to be decided, but concerns remain between what the bill will impose and how this will be implemented in Scotland.

The bill, in its current form, proposes a number of measures that will alter the 2014 Act. Of particular importance are the measures that will affect housing law in the access to services provisions, clauses 13-16 of the bill in its current form. These amend and insert new provisions into the 2014 Act. New s 33A states when an offence will be committed by a landlord under a residential tenancy agreement. There are two conditions to be met. The first, by s 33A(2), is that premises are occupied by an adult who is disqualified as a result of their immigration status from occupying the premises. The second, by s 33A(3), is that the landlord knows or has reasonable cause to believe that the premises are occupied by an adult who is disqualified as a result of their immigration status. The provisions apply to England, but the Secretary of State may make regulations applying them to Scotland, Wales or Northern Ireland.

The penalties that are to be imposed if a person is guilty of an offence are a prison sentence of up to five years and/or a fine. The explanatory notes show that the Government wishes to target “rogue landlords and agents” who deliberately and repeatedly fail to comply with the right to rent scheme. It is clear that the Government’s harsh penalty scheme seeks to discourage this behaviour. Though, it is questionable whether this holds fair when considering the adverse discrimination issues faced by landlord and tenants face.

Labour has also raised concerns about the proposal, stating that it runs the risk of increasing everyday racism, leading to wider discrimination across the UK. Both Labour and the Scottish Government believe that the measures have the potential to increase discrimination by landlords against UK citizens, for example those with foreign sounding names. The vulnerable may find themselves likely to be manipulated by rogue landlords.

The Joint Council for the Welfare of Immigrants has released information that around 42% of landlords said the provisions in the bill made them less likely to consider a prospective tenant who did not hold a British passport; 25% said they were now discouraged to engage with tenants who had a foreign name or accent. This clearly shows the potential discrimination that the UK faces should it adopt the bill, and can be argued to present sufficient evidence for detailed consideration on the possible discrimination implications. However this leads to ambiguity in itself, as how can it be determined what a British accent or name is? The BBC has been known to subtitle Scottish voices for English listeners.

Pilot scheme experience

Under the 2014 Act, private landlords in Dudley, Sandwell, Wolverhampton, Walsall and Birmingham council areas have been piloting the right to rent checks. This pilot started in August 2014 and has been described as a “success” by Communities Secretary Greg Clark, who also stated his intention to add more areas to the pilot. There has not yet been an official review of the pilot; however seven landlords have been fined an average of £800. Mr Clark also admitted to being unable to provide figures on the number of individuals who were deported as a result of the pilot exercise.

The assertions of many critics that the 2014 Act would lead to discrimination are supported by the findings of the Joint Council. Its report found that almost half of the landlords who participated in the pilot said the onus on them to conduct “right to rent” checks had led to them being less likely to take on a tenant who did not possess a UK passport – though a good number of UK citizens of UK parentage born in the UK do not possess UK passports. The Joint Council report claims that two thirds of illegal immigrants favour “sofa surfing” or living with friends over the private rented sector.

In conclusion, there is much to be concerned about in the bill. It raises concerns in respect of discrimination, and there are issues in respect of how, if enacted, it will be implemented in Scotland. The UK Government has yet to respond to an open letter written by Margaret Burgess, and debate on the matter has not resumed in Westminster. A full and informed consideration of all of the issues raised by this bill is required to ensure fair implementation of the proposed measures. Unless these issues are adequately addressed, its enactment into Scotland will bring about significant housing and discrimination problems.