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Eviction without court order: irrational answer to the wrong question

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First they came for the squatters. Then they came for the illegal immigrants. Soon they will come for everyone in rented accommodation. The Government’s apparent intention in the forthcoming Immigration Bill to allow landlords (in England) to throw illegal immigrants out without a court order matters less in practical legal terms (arguably it doesn’t make that much practical difference) than in terms of incursions into the principle that courts should oversee the relationships between landlord and tenant because of their inherent inequality. 

The legislation is intended to deal with landlords who find their tenants do not have the “right to rent” (under the Immigration Act 2014) or that their perfectly legal right to remain has come to an end. Eviction would thus become a summary matter. Except that, in realistic scenarios, it wouldn’t.

The proposed legislation means that the right to evict summarily will be triggered when the Home Office issues a notice that the tenant “no longer has the right to rent in the UK”. The usual two-month notice period for an assured shorthold tenancy does not apply. 

The legislation, however, would not give landlords special powers to physically remove the occupier. They would be still governed by the Protection from Eviction Act 1977 – intended to prevent Rachman-like landlords sending round the boys. They could not forcibly remove them nor go in and change the locks.

If the occupier holds out, there will be no right to disregard the protections of the 1977 Act. The landlord must still go for a court order. So to that extent the “eviction without court order” is useless, if removing court scrutiny is the aim. The court will retain a last say – and the inadequacies of the new legislation may be put under examination and found very much wanting (as Giles Peaker notes; see reference below).

The proposed legislation is at one with the Government’s obsession with keeping interfering judges out of its business and that is where its threat lies – to the principle of the rule of law and the right to justice. If you remove these rights from vulnerable people in very difficult situations (even if they are deemed to be acting “unlawfully” by seeking to remain in the country), where would the Government stop in removing legal scrutiny?

Powers curbed
The paradox is that if the Government is determined “to crack down on rogue landlords who make money out of illegal immigration – exploiting vulnerable people and undermining our immigration system” (announcement here), powers are available that are effective in dealing with the problem – powers the Government has just watered down to protect landlords.

The Government has said: “The forthcoming [immigration] legislation will create a blacklist of persistent rogue landlords and letting agents, helping councils to focus their enforcement action on where it is most needed, and keeping track of those who have been convicted of housing offences.” Meanwhile it has blunted powers brought in by the Labour Government that had just such an effect – the exposure of rogue landlords accommodating illegal immigrants and potentially aiding people trafficking.

Among various dodgy documents and devices the outgoing Coalition Government passed with minimal oversight during the dying days of the 2014-15 parliamentary session was a subtle change to local authorities’ powers to license private lettings in designated areas. (Selective Licensing of Houses (Additional Conditions) (England) Order 2015

It was announced by Brandon Lewis, the Minister of State for Housing, but largely unnoticed – except by landlords, who were cock-a-hoop. “Rogue landlords” must have been even more cockahoop. Selective licensing was a power given to local authorities under Sections 79, 80 and 81 of Labour’s Housing Act 2004 to require landlords in designated areas be licensed. The intention was to allow local authorities to improve areas suffering poor quality privately rented housing – meaning badly managed accommodation suffering criminality or anti-social behaviour.

The licensing could be imposed if it would “contribute to the improvement of the social or economic conditions in the area” or “that the area is experiencing a significant and persistent problem caused by anti-social behaviour” which could be improved by landlords taking action – or not encouraging it in the first place. Local residents, landlords and tenants must be consulted if a licensing scheme is introduced in a particular area.

It was a triumph of localism, targeted wherever  local councils thought it should be but not mandated if they thought it shouldn’t. And it was also useful because often those areas (officially of “low housing demand”) were also the areas concealing those very undocumented people the Government now seeks to root out.

The London borough of Newham, for example was the first to include the whole borough in its scheme. This allows officials to visit unlicensed premises based on intelligence gathering (ie to show they aren’t owner occupied and hence should be licensed). It is said they take along immigration officers on some of these visits for the very good reason that this is the sort of low quality accommodation that “rogue landlords” offer to undocumented people – and which they want to keep well below the radar of the authorities. It’s also a useful way of discovering health and safety hazards.

With its deregulating hat on, the Government seeks to curb this sort of power for local authorities, deeming it too bureaucratic an imposition on landlords – yet in another part of the Government forest, it is imposing absurdly bureaucratic duties on every landlord to check the immigration status of their tenants. Selective licensing would be an ideal way of dealing with the problem of illegal immigration. Left hand, right hand – not quite meeting in the middle where the brain is.

Twitter: alrich0660

Note: The Government has added “large amounts of inward migration” to its list of criteria for licensing areas as well as poor property and deprivation (extending the original criteria from low demand and antisocial behaviour. This does not, of course, necessarily mean foreign immigration. Despite the success of Newham’s scheme (in general in improving housing, not simply in the area of illegal immigration), the Government has made it more difficult for local authorities to go down Newham’s route. So councils must seek ministerial permission for “any selective licensing scheme which would cover more than 20% of their geographical area or would affect more than 20% of privately rented homes in the local authority area”. The contradictions of government policy are pointed up in this piece on the Shelter website.

Here Giles Peaker of Nearly Legal considers the likely proposals in the Immigration Bill and says: “And there I collapse, it is impossible to satirise, or even mock, such a catatonically dim-witted, legally illiterate, wholly unnecessary, thoughtless proposal.”  

Also See Philippa Graham here for background on the likely Bill.

Selective licensing explained: House of Commons Briefing
Delegated Legislation Committee 23 March 2015: Brandon Lewis announces changes
The Housing (Wales) Act 2014 introduced phased licensing throughout the principality

Judge criticises Home Office after failure to deport Jamaican drug dealer

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A UK Court of Appeal judge has criticised the Home Office for delays in dealing with the expulsion of a convicted Jamaican drug dealer which could increase his chance of staying in Britain. A decision to deport the man, known as KD, was made in 2007 after he served a five-year sentence for dealing in class A drugs. But failings by the Home Office mean he is still in the UK with an improved chance of remaining as time passes.

The Upper Tribunal (Immigration and Asylum) had ruled that his deportation would breach his Article 8 family rights because he had had a relationship with a British woman since 2001 and they had three children. Now Lord Justice Richards in the Court of Appeal has granted the Government a right to appeal against that judgment – but said “the passage of time is likely to strengthen rather than weaken the respondent’s Article 8 claim in the event that the matter falls to be decided afresh”.

Problems in the procedure started because the Home Office failed to serve the deportation order on KD in 2007. The Secretary of State had treated KD’s Article 8 application for leave to remain as if it was an application to revoke the non-existent deportation order – and had rejected it.
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Criminal Court Charges: a return to pre-Victorian values

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We need a tougher justice regime in these austere times – so why not bring back Dickensian-style debtors’ prisons? We’re not there yet, but we’re several steps along the way thanks to the UK Government’s Criminal Court Charges.

Magistrates have become concerned that they are obliged to impose these new charges – and potentially to jail offenders if they fail to pay them. In contrast to imprisonment for defaulting on fines, the Criminal Court Charges are not discharged by serving time in jail. There are set maximum levels for time in jail according to the amounts outstanding. So, if the Charge comes on top of other fines and payments, it can mean longer periods in jail for each defaulter.

The Debtors Act 1869 abolished imprisonment for contractual debt in England and Wales. Parts of the Act are still in force and make clear imprisonment is still available for “Default in payment of any sum recoverable summarily before a justice or justices of the peace” meaning fines, compensation and costs. The Government has in effect created a new category of imprisonable debt. Prison may be used only when the individual is “guilty of wilful refusal or culpable neglect” in failing to pay – the same wording used in guidance regarding the Criminal Court Charge. The potential term of imprisonment depends on the level of the amounts due (See Schedule 4 to the Magistrates Courts Act and notes below). The failure to pay the maximum £1,200 Criminal Court Charge could be penalised by up to 45 days in prison – at a cost of about £90 a day – more than three times the Charge itself.
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Judge fails to release foreign sex offender shock

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“Judge frees illegal immigrant sex offender in human rights shocker”. That’s a story. “Judge leaves failed asylum seeker in jail without charge for potentially two years or more.” That, apparently, is not a story. But it is worth looking at the case, not least to dispel the notion that unaccountable UK judges spend much of their time releasing foreign criminals at the drop of a cat because of the Human Rights Act.

The case is R (Abdulrahman Abunasir) v Secretary of State. Abunasir had been released from an 18-month sentence for an attempted sexual assault by digital penetration, a “very serious and frightening sexual offence, committed against a young woman, while she was on her own in the street, by a man unknown to her and who had been in the country in all probability less than a fortnight” in April 2013.

While in jail he made an asylum claim saying he was a refugee from Syria. Langage tests suggested he might actually be from Egypt. Bio tests did not. Served with a deportation notice he argued in November 2013 that he could not be returned to Syria “as to do so would breach the UK’s obligations under the Refugee Convention”. He completed his  sentence on the 13 January 2014 and was immediately detained under s. 36(1) UK Borders Act 2007 pending a decision whether to deport him. He is held under The Immigration Act 1971 Schedule 3 para 2(1).

Abunasir thus fell into a common limbo: foreign nationals whom the government does not want to release onto the streets of Britain but who cannot be deported because of fear of torture back home, for example or simply because of the seriousness of troubles in their own country. Here there was no way of engaging with authorities amid the Syrian chaos to establish Abunasir’s claim to nationality. The result has been he has remained in jail for 18 months beyond his prison sentence. He was deemed as being of high risk of offending, likely to abscond and had no family ties in Britain. Much work was done by investigators and the probation service to resolve the issues – the possibility of release under probation or return to Syria under the Facilitated Return Scheme (which involves the individual disclaiming rights to pursue legal action, which Abunasir seemed for a time willing to do). To no avail.
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The MoJ barrister, the ‘Muslim weapons website’ – and a bad case of alleged racial profiling

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The UK Ministry of Justice has been spared an embarrassing tribunal case in which a barrister employed at a London magistrates court alleged racial discrimination. Haras Ahmed, a magistrates court adviser, had come under suspicion because another more junior employee, who was also Asian, had been taking bribes. An employment tribunal found their “shared ethnicity” was part of the reason for the suspicion of Ahmed, which was unfounded.

A suggestion had also been made to senior management that Ahmed had links on his computer to “Muslim sites containing weapons”. They turned out to be pictures of clay pigeon shooting.

The Tribunal considered that Ahmed’s removal from Redbridge Magistrates Court arose from “pressure from senior management due to concern that the Claimant may be implicated in the Redbridge fraud” and hence was done unreasonably and in bad faith. HM Courts and Tribunals Service were in effect under an obligation to prove their conduct was not racially motivated, said the Tribunal. Read the rest of this entry

Leveson anger over lawyer’s asylum case ‘shambles’

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Senior UK judge Sir Brian Leveson has strongly criticised a solicitors firm for the “systematic failure” surrounding an asylum application on behalf of two Pakistanis. The handling of a judicial review application by solicitors Rashid and Rashid, of Merton High Street, South Wimbledon, London, was put under investigation by the Solicitors Regulation Authority.

Leveson, President of the Queen’s Bench Division said: “What has happened in these cases follows what has become an all too familiar and depressing pattern in which the legal representatives demonstrate a remarkable lack of knowledge and/or regard for the substantive and procedural rules governing claims for judicial review.”

He spoke of the danger of lawyers abusing the court processes for personal gain and questioned whether Rashid and Rashid had acted “in a professionally appropriate manner towards its clients”. The suggestion was that the firm extracted a fee of around £5,000 with a promise that the clients would have experienced counsel, yet the case seems instead to have been entrusted to an inexperienced case worker. That would be a clear breach of duty, said Leveson. 

Mr Justice Jay, who received the application in the High Court, had said: “These proceedings are a complete shambles. You have not begun to understand the basic procedures which apply.”

Rashid Khan, the sole principal at the firm, has admitted the grounds set out in a judicial review application in the case of Adil and Amir Akram by the case worker, who holds a legal secretary diploma, “were badly drafted and failed to identify the relevant principles”.  Read the rest of this entry

Anderson and surveillance: RIPA is still the law – and it’s being broken

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The Anderson report on surveillance has (according to the media) suggested that UK security services should “keep” their powers of bulk surveillance – the downloading and storing of communications and internet material, basically without limit except the limitations of the technology they have. The report has come out in the same week that the Metropolitan Police were unable to confirm or deny (for which read “confirmed”) that dummy mobile phone towers, or Stingers, were lifting material from the phones of passers-by, apparently ad hoc and without specific investigatory purpose.

But it is really not clear that bulk surveillance powers do have legal sanction in Britain – and nor does Anderson say unequivocally that they do. Which is why, when Theresa May’s new “snooper’s charter” legislation comes through, she will be legalising something she claims is perfectly legal already – but really isn’t.

So what is the law? The key piece of legislation is the Regulation of Investigatory Powers Act 2000 (RIPA) – which Anderson wants replaced. This is often referred to as source of surveillance powers for just about anyone from GCHQ to schools checking on the residency of parents of local authorities looking at our recyling. In fact it is intended to control, curb, restrict and limit surveillance – and in particular it is intended to prevent the state’s (and private bodies’) disproportionate bulk downloading and retention of the private information – which is just what the security forces do now as far as they technically can and which they will be able to do far more effectively under the snooper’s charter, requiring ISPs, Google and the rest to keep such information for them. Read the rest of this entry


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