We need to avoid creating an unintentional loophole that effectively says, “We’ll ask no questions and we won’t contravene the proposals in this legislation”. That cannot be right. I would imagine that most landlords would want to know who was occupying their property. In the event that a property is the subject of subletting agreement, at that point there would of course be a liability to carry out the background checks, which would fall to the people who have made the decision to sublet. However, making a general exemption in those circumstances could create an unwelcome loophole.
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Landlords may choose to use these powers, use other routes to eviction or agree with the illegal migrant that the tenancy be brought to an end. It cannot be right, however, that a person in the United Kingdom, in the full knowledge that they have no permission to be here, should be able to access our finite housing stock or frustrate a landlord in evicting them. A landlord may only use these powers where the Secretary of State has served a notice or notices in respect of each occupant. These will only be issued where the occupants are illegal migrants and there is no genuine obstacle to them leaving the United Kingdom, which covers the point raised by the noble Baroness, Lady Hamwee, about asylum seekers. In considering whether to serve a notice in respect of a family with children, the Home Office will have regard to the duty to safeguard and promote the well-being of children.
Amendments 154 to 157 seek to provide that the grounds for evicting an illegal migrant are discretionary, not mandatory. As we heard from the noble Lord, Lord Best, at Second Reading, the private rented sector is concerned about what landlords may do where they have persons occupying their accommodation who are disqualified from renting by reason of their immigration status. To use these mandatory grounds, a landlord must have received a notice from the Secretary of State informing them that one or more of the tenants or occupants is disqualified from occupying the property as a result of their immigration status. It is not necessary or helpful for a court to enter into its own additional assessment of the reasonableness of making a possession order, which would be the effect of the amendments in making this a discretionary ground.
I think that covers most of the points that were raised. The noble Lord, Lord Kennedy, asked whether the tenant should be able to make their case against eviction in court. The law is clear that those who require leave to be in the United Kingdom and do not have it are disqualified from renting accommodation. Such a determination on immigration status can only be made through the Home Office and, where an appeal is allowed, the immigration courts. The tenant would have been through this process if they find themselves being evicted on the grounds of their immigration status.
I appreciate that there are further discussions to be had, and we will listen carefully between now and Report to what is said about these important issues to ensure that genuine landlords are protected, and that the proposals are reasonable. I therefore ask the noble Lord to withdraw the amendment at this stage.