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Housing and Regeneration Bill

moved Amendment No. 114G: 114G: Before Clause 313, insert the following new Clause— ““Ineligible persons from abroad: statutory disregards Schedule (Ineligible persons from abroad: statutory disregards) (which amends Parts 6 and 7 of the Housing Act 1996 in relation to certain ineligible persons from abroad and which makes related provision, including provision for Scotland and Northern Ireland) has effect.”” The noble Baroness said: I start this rather long speaking note—and I shall explain why it is long—with an apology for not having been able to bring these amendments to the notice of the Committee earlier. Because they are very complex, I should have preferred to have given notice of them and to have sent a copy, together with some notes, to noble Lords, but I was not able to do so. I thank the JCR for its work on this complex issue and I also thank the noble Baroness, Lady Hamwee, for bringing forward her amendment, as it enables me to put on the record what we are doing and why. If she will allow me, I shall address her amendment in the context of my amendments, because it does not make sense to separate them. That will allow me to explain why we prefer the solution that we have arrived at. The amendments tabled in my name make changes to homelessness legislation across the UK. Their principal purpose is to remedy Section 185(4) of the Housing Act 1996, which applies to England and Wales and which has been declared incompatible with the European Convention on Human Rights by the UK courts. They also amend Section 119(1) of the Immigration and Asylum Act 1999, which makes similar provision in respect of Scotland and Northern Ireland. This is a complex area of law. In summary, the issue at stake is what help British citizens whose household includes members with different immigration status should get if they become homeless. We do not have specific numbers available but the information that we have shows that we are talking about a very small number of people. The amendments will ensure that households in these circumstances are provided with suitable housing, while continuing to ensure that people from abroad with no claim to UK public resources cannot be conferred with entitlement to social housing. The amendments amend the Housing Act 1996 and the Immigration and Asylum Act 1999, together with other provisions, so that the requirement that local housing authorities in England, Wales and Scotland and the Northern Ireland Housing Executive disregard, or do not take into account, ineligible household members, including dependent children, when considering whether an eligible housing applicant is homeless or has a priority need for accommodation will no longer apply in respect of eligible applicants who are British citizens, EEA nationals or Commonwealth citizens with a right of abode in the UK. However, in these cases, where an eligible applicant who is a British citizen, an EEA national or a Commonwealth citizen with a right of abode in the UK is owed a main homelessness duty only because homelessness or priority need is conveyed on him by an ineligible member of his household who requires leave to stay and does not have it, or who has leave, but with a condition of ““no recourse to public funds””—referred to in the amendments as ““restricted persons””—then the local authority will be required, so far as practicable, to discharge the homelessness duty by arranging an offer of accommodation in the private rented sector. That is new. By way of example, if a British citizen comes to the UK with a dependent child or pregnant partner who have been granted leave with a condition of ““no recourse to public funds””, from now on the family will be treated as having priority need and will be entitled to be provided with accommodation under the new provision. I know that this is complex, so I shall try to explain the background in a way that will be perfectly clear to noble Lords. We have taken some time to bring these amendments forward, for which I apologise, but the delay has been due to the very difficult policy issues raised by the declaration. They are difficult because they bear on the interface between immigration policy and the provision of social welfare assistance. Although we are absolutely committed to remedying legislation as quickly as possible, we also have a duty to maintain a strong and fair immigration policy. Perhaps I may summarise the background to the amendments and then go on to explain their effect and provide a more detailed explanation of how they will operate. I shall be very happy to write to any noble Lords, providing my full speaking notes with footnotes, if that would be helpful. In setting the context for the amendments, perhaps I may say a word about the framework of homelessness legislation and what we mean by the ““main homelessness duty””. When families with children and people who are vulnerable become homeless through no fault of their own, local authorities must secure housing for them, provided that they are eligible for assistance. Eligibility is determined by the immigration status of the applicants. For example, all British citizens settled and habitually resident here are eligible to be considered for homelessness assistance, but whether they have any entitlement to that will obviously depend on their circumstances. Applicants have an entitlement to the homelessness duty when three key criteria are met: first, that they are eligible; secondly, that they are homeless through no fault of their own; and, thirdly, that they have a priority need for accommodation—for example, because they have dependent children or are vulnerable. Under the legislation, there is a critical difference between eligibility and entitlement. It can be confusing, but being eligible for homelessness assistance does not mean necessarily that someone is entitled to be assisted. For example, Members of the Committee are almost certainly eligible for assistance, but I think it is unlikely that we would meet the statutory criteria for help and we would not be entitled to it. I could be wrong, but I am making that assumption. Entitlement for homelessness assistance, therefore, depends crucially upon whether the applicant has a priority need. It is significant that in around 70 per cent of homelessness acceptances in England, the household includes a dependent child or spouse, and priority of need is conveyed on the individual applicant because of this family factor. The family circumstances convey the priority need and therefore the entitlement to help. I am labouring the point because it is critical to the debate and central to the declaration of incompatibility that we are seeking to remedy. There are people who are not eligible for homelessness assistance. The main category of people not eligible is those subject to immigration control, usually nationals of countries outside the European Economic Area. People subject to immigration control become eligible only if they are granted a form of leave which allows recourse to public funds. The people in this category clearly have refugee status or humanitarian protection. Illegal immigrants, people who require leave to remain in the UK and do not have it—for example, someone who has evaded immigration control on arrival or overstayed a period of limited leave—are not eligible for homelessness assistance. In that way, the rules on eligibility have given effect to a fair immigration policy and legislation. Given how entitlement to homelessness assistance works, 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 under other circumstances the dependent child would confer entitlement to assistance? The present law states under Section 185(4) of the 1996 Act and Section 119(1) of the 1999 Act that the whole family is currently denied housing assistance because household members who are not eligible cannot be taken into account when deciding if an applicant is homeless or in priority need. In 2005-06, the court ruled that the application of that section to British citizenship applicants is incompatible with human rights legislation because it discriminates against the British citizens who are affected—that is to say, it denies them the help that other British citizens who are not affected will get—and the discrimination is not justified. In a case that illustrates this—Morris v Westminster City Council—the dependent who was disregarded was a young child; in another, Gabaj v Bristol City Council, the dependent was a pregnant spouse. In both cases, the applicant for homelessness assistance was an eligible British citizen. We have acknowledged the court's declarations in these cases and we are now bringing forward the necessary changes in these amendments to ensure that such British citizens and their families who are currently not getting help will be entitled to accommodation. The effect of the amendments is that Sections 185(4) and 119(1) will no longer apply to applicants who are British citizens. Nor will they apply to applicants with specific rights to live in the UK—for example, Commonwealth citizens with a right to abode or with an EU treaty right to reside. That means that such applicants will, from now on, be owed a duty to have accommodation secured for them, provided that they meet all the normal entitlement criteria, even if their application relies on a dependent who is ineligible. When Ms Morris and her daughter came to the UK as visitors, both were subject to immigration control. She was entitled to British citizenship by descent, but her daughter was not. She applied for homelessness assistance while her daughter's application for citizenship was still pending. She was unable to rely on her daughter to convey priority need because the daughter was still subject to immigration control and had overstayed her visitor's leave. Ms Morris was therefore not entitled to accommodation. Under these amendments, she would be. However, while the Government recognise that applicants with specific rights to live in the UK must not be denied homelessness assistance, we remain concerned that dependants and other household members who are ineligible because they are here illegally or on condition that they will have ““no recourse to public funds”” should not be able to confer priority or entitlement for long-term social housing. The amendments refer to these dependants and household members as ““restricted persons””. As I have said, these persons include two categories of ineligible people: first, those who have leave to stay but only on condition of ““no recourse to public funds””, and those who require leave to stay but do not have it. The latter will include illegal entrants, asylum seekers, failed asylum seekers and people who entered the UK on a visitor's visa and have overstayed. The effect of the amendments is therefore that where a homelessness duty is owed in a restricted case—that is, where the applicant is owed the duty only through reliance on a restricted person—then, so far as possible, the duty must be discharged by arranging an offer of accommodation in the private rented sector. 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 Housing Executive in Northern Ireland, 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. The amendments also provide that the preference or priority for an allocation of social housing normally awarded to someone owed the homelessness duty will be withheld. The amendments will not apply to applicants who are eligible for homelessness assistance but are subject to immigration control; that is, for example, someone granted refugee status, humanitarian protection or discretionary leave and who has recourse to public funds. The current restrictions in Sections 185(4) and 119(1) will continue to apply to these applicants. As now, they will not be able to rely on any ineligible household members to confer priority need or homelessness. The Government consider that this difference in treatment is justified because people subject to immigration control who are eligible for housing do not have an unqualified right to be in the UK, only permission, and their claim to homelessness assistance should not be capable of relying on someone else who has no claim to it at all. We have to bear in mind that social housing is a very scarce and expensive resource. To sum up, while we accept that British citizens and others with an absolute right to be here must be provided with some form of housing assistance if they become homeless through no fault of their own and are relying on a restricted person to convey homelessness or priority need, we do not consider that that assistance should convey priority for social housing. The important point is that they will not be left homeless, as they could be under the current provisions. They will have access to private provision. I hope noble Lords will agree that these amendments, complex though they are, remedy the current incompatibility and set a fair balance between the interests of UK taxpayers and the rights of migrants who come to the country with no claim to public funds. I turn briefly to the amendment tabled by the noble Earl, Lord Onslow, who is not in his place, and the noble Baroness, Lady Hamwee. It seeks to remedy the same incompatibility as the amendments in my name. While the simplicity of the amendment may be attractive, the implication is not, because it would be extended to everyone and allow restricted persons to convey priority and in some cases entitlement for long-term social housing. That cannot be right. As I have said, social housing is a scarce and expensive public resource. I am grateful for the patience of the Committee, but before I conclude let me add that the Government intend to open discussions with local authorities to explore how they can in future collect and share data with the UK Border Agency to identify housing applicants whose household includes a person who requires leave to be in the UK but does not have it. This will discourage applications from households with family members who are here illegally and it will assist the UK Border Agency in the enforcement of a fair and firm immigration policy. Again, I am sorry that I was not able to give noble Lords advance word about these amendments, and I am sure that they will want to read Hansard on them. I shall also be happy to follow up with a written explanation of anything that might be obscure. I beg to move.