Doesn’t it make you proud to be English?*

The Immigration Bill 2015 has been published and will have a Second Reading in the House of Commons on October 13, 2015. It contains some truly remarkable provisions about housing. But first, short re-cap to remind you how we got to this stage.

The Immigration Act 2014 introduced the concept of the “right to rent”. In short, if you don’t have a right to rent (very broadly, if you’re not lawfully present in the UK), then you’re disqualified from renting most residential accommodation. The penalty, however, fell on the landlord or agent, who was liable for a civil penalty (a fine, with a right of appeal).

Given that many landlords can’t even get the tenancy deposit provisions right, the prospect of requiring them to identify Zambrano carers and other immigration issues was, frankly, ludicrous. So the government announced that the 2014 Act would be introduced on a trial basis in a few local authority areas.

Following the general election, the government returned to this topic. The Prime Minister made a speech indicating that he wanted to make it easier to evict persons unlawfully present in the UK and then we got more detail in the Queen’s Speech and in a subsequent CLG/Home Office announcement. Whilst this was going on, independent research into the 2014 Act trial areas revealed that the obvious discriminatory risks inherent in the legislation had indeed come to pass.

Which brings us back to the 2015 Bill. It amends the Immigration Act 2014 in two ways.

First, new criminal offences are created (cl.12, introducing new ss.33A-C, 2014 Act). A landlord commits an offence if (i) his property is “occupied by an adult who is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement” (i.e. an adult without a 2014 Act “right to rent”); and, (ii) the landlord knows or had reasonable cause to believe that this is so (new s.33A(1)-(3)). It appears that can be committed either through own knowledge/belief or because the Secretary of State has served a notice on the landlord, informing him that the property is so occupied (s.33(5)). It is also possible to commit this offence where a limited right to rent has expired (s.33A(7)). Similar provisions exist for agents (s.33B).

The penalty is up to five years imprisonment (on indictment, 12 months on summary conviction) and/or a fine (s.33C). Now, I accept that five years is likely to be reserved for repeat offenders, but still, WTAF?!

Secondly, we have some major reforms to the law on eviction. Clause 13 introduces new s.33D, 2014 Act. It works like this. If the Secretary of State becomes aware that a person without a right to rent occupies the property, he serves a notice on the landlord (s.33D(2)). The landlord can then serve a notice on the tenant, giving 28 days notice (s.33D(3)-(4)), bringing the tenancy to an end. That notice is enforceable as if it were an order of the High Court (s.33D(6)). The service of the notice by the Secretary of State has the effect of turning the tenancy into an excluded tenancy (s.3A, Protection from Eviction Act 1977).

For assured and Rent Act tenants mandatory grounds for possession are also introduced (s.33E).

Comment

There are many, many things to say about this and I suspect my fellow NL authors will want to add to this list in the comments, but, for starters:

I’m not entirely clear if the “notice enforceable as if a High Court order” is intended to only apply to lettings which are not governed by the HA 1988 or Rent Act. If they are, what is the point of the new mandatory grounds? Why would you ever use the mandatory ground? Surely it’s pretty dangerous to use the “notice enforceable as High Court order” route since, as drafted, the Bill doesn’t provide any defence if you turn out to have erroneously evicted someone.

What happens if rent is paid in advance and the tenancy is terminated, where are the rent repayment provisions (cf the Deregulation Act 2015 position)?

What happens if the Secretary of State serves an erroneous notice? How does the landlord or occupier challenge that? Is it by judicial review and, if so, how is the tenant suppose to know when the landlord has been served? Or can you simply seek an injunction to prevent enforcement because a jurisdictional (or precedent) fact is not made out?

How many people are unlawfully present in the UK and are Rent Act tenants? Surely anyone in that position would have an exceptionally strong case to be allowed to remain in the UK given that it’d mean they’d been here since at least 1989.

 

 

 

 

 

*and it is English, this hateful bilge doesn’t extend to Wales, Scotland or NI yet, see cl.15.

Posted in Housing law - All, Possession, Private Tenancies, Unlawful eviction and harassment.

About J

J is a barrister in London. He loves service charges and all things leasehold law related. He also likes beating rogue landlords and mortgage companies.

31 Comments

  1. Just checking: my impression (because I have not looked anything up yet) is that all this applies only to the “tenancies” covered by the 2014 Act i.e. arrangements where money changes hands to provide an only or principal home, but with exemptions for anything provided by local authorities in pursuit of duties, including nominations and referrals to other landlords, some hostels, some health related accommodation, mobile homes, some student accommodation etc. I ask mainly because the prospect of some local authority directors of housing facing five years in prison might otherwise make for a more exciting weekend for some of us. Of course it leaves open the chance to grass up some housing association directors. Or would the boards be liable (shuffles off to check since she has meeting mid week). So getting the Home Office to cart someone off could become the weapon of choice in some HA leadership battles as it is already in some matrimonial and employment disputes.

    • You are correct. This is *just* an extension to the 2014 Act, so the exclusions in that Act (e.g. HA 1996 Pt 7) continue to apply.

  2. So this means if the tenancy has become an excluded tenancy the tenant can be hoyed out by the landlord as long as it does not involve strong arm tactics. What will the Home Office have done in the intervening 28 day period will the person be able to disappear into the ether?
    I will look, but just speculating, what about joint tenancies or shared tenancies between people with and without the right to remain?

    • The Home Office will have to tell you wht they intend to do.
      On the joint tenancies and situations where other adults live in the accommodation who have the “right to rent” the Bill has some very complicated provisions about transferring the tenacies between them. Not sure how that will work out in terms of rent liability etc. Or who gets the deposit returned. Or if it hs really been thought through.

  3. Working in Birmingham I’ve already come across letting agents seemingly utterly baffled by the pilot of the 2014 provisions, with predictably dismal consequences for tenants. Adding in the threat of 5 years (!) in prison and the possibility of unlawful eviction would clearly be a disaster.

    This government has a tiny majority. It would only take a few Tories with either a conscience or a brain to stop this nonsense. Got a Conservative MP? Please let them know how entirely impractical this is.

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  5. Hi Sue
    My question about the Home Office was rhetorical; if the HO has identified the location of a person who no longer has the right to remain what purpose is served by by giving them prior warning in order for them to disappear when they could be detained. None.

    A question that I an unable to answer is that of the NTQ being treated as if it was an order of the High Court. Surely a Court order would in normal circumstances be enforced by a Sheriff, whereas if a tenancy has become by Notice an excluded tenancy that type of tenancy can be enforced by the landlord using reasonable means – not an officer of the court.

    An issue that I can not work out is that of a joint tenant wishing to continue their rights under the tenancy. The legislation allows transfer by order on application by the landlord for possession, where the court decides to transfer. If the landlord has opted to use the simple Home Office NTQ I can not find if the other tenants /occupiers have any rights.

    An AST is a particular form of AT, and although rare a landlord may have created at AT post 1996, even if it has breached any mortgage restrictions. It is as you suggest, ill thought through

  6. Three comments: first, the possible remedies for the landlords if they think the SoS has served an invalid notice on them. They are not obliged to terminate the tenancy. They could presumably take no action and run the argument that the notice was invalid (or just plain wrong factually) as a defence if they are prosecuted. That would be as well as or instead of using judicial review or seeking an injunction. Or they could seek a declaratory judgment from the High Court.

    Secondly, the provision that the landlord’s notice under s33D(3) ” is enforceable as if it were an order of the High Court” (s33D(6)). What exactly is there that can be enforced? The notice is just a notice. All it can do under the Bill is to tell the tenant that the tenancy agreement is at an end from a specified date. It doesn’t order the tenant to do anything in particular. The sub-section does not give the landlord power to order the tenant to leave, or to surrender the keys or anything else the landlord might want the tenant to do. The notice does not have to be in a prescribed form and no one seems to have power to prescribe the notice’s contents or form. So the landlord can presumably put in anything he wants but I would expect the High Court to take a very strict view of these provisions. There are provisions elsewhere in statute about various kinds of order being enforceable as if they were orders of the High Court but these are, to the best of my knowledge, all real orders (ie to do something, or refrain from doing something) made by a court or tribunal. The High Court is very unlikely to lend its powers and those of its officers to enforcing anything a landlord chooses to put in a notice or to interpret this statutory provision to become something like an implied possession order, especially as the landlord presumably has a self-help remedy.

    Thirdly, if the SoS knows where individuals with no right to reside are living why doesn’t she use her powers under the Immigration Acts to arrest, detain and deport them? I would expect to see JR challenges to SoS notices on the grounds that this provision is in practice being used to circumvent the existing powers and safeguards on deportation by making it impossible for the individual to continue living in the UK.

    • The likelihood of a landlord not acting on the SoS notice is, well, pretty damn remote.

      Agreed on the curious status of the notice – it takes effect as an Notice to Quit. There is the exclusion of such tenancies from Protection from Eviction Act, and from a statutory periodic arising on end of term under s.5 Housing Act 1988. As such, I take it that the occupants can indeed simply be thrown out, like any excluded tenancy/licence. But as you say, this is the self help remedy. What is the point of the ‘enforceable as High Court Order’? Unless it simply means use of Sheriffs to evict?

    • “The sub-section does not give the landlord power to order the tenant to leave, or to surrender the keys or anything else the landlord might want the tenant to do.”

      Well, if it takes effect as a Notice to Quit, and the tenancy is excluded from PEA 1977 or HA 1988 (or indeed the Rent Act), that is exactly the effect it has. The equivalent would be notice served on a lodger.

    • Well I think it’s at least arguable. The legislation in effect deems the statutory notice to have the same effect as a notice to quit. I would expect the courts to scrutinise a landlord’s notice very carefully and be very reluctant to allow enforcement of something which is not explicit, not sanctioned in form or content by a judge, and which operates only by statutory implication.

  7. A couple of choice points:

    New Ground 7B is a mandatory ground of possession against a tenant who, amongst other conditions, has living with him someone without the right to rent. It includes in the category of those without a right to rent a person whose “… leave to enter or remain in the United Kingdom is subject to a condition preventing P from occupying the dwelling-house…”.

    So the legislation envisages a situation where a person is entitled to reside in the UK, but isn’t entitled to rent a house to do so. And allows the landlord to obtain possession against anyone who gives that person, lawfully here, shelter.

    Am I missing something here?

    The other point, a small one, but read the new s35(7) of the 2014 Act (inserted by s13(3) of the Bill) carefully. Prospective legislation with retrospective effect?

    • Following on from which, does a visit visa carry the right to rent? And if not, given the width of the term “residential tenancy agreement” (particularly as including licences), what is the position of a hotel letting to a visa national ? While there may be an argument that a 2 week holiday isn’t “residential use” (although if that’s the case, why are holiday lets excluded from protection?), tourist visas are valid for up to 6 months.

    • the provisions only apply to those covered by the 2014 Act and that applies only to “tenants” including lodgers who occupay the letting as their only or principal home. So explicit holiday lets are excluded explicitly, but also presumably those on visitor visas also have a principal home elsewhere. Hotels were covered by different regulations which I think still apply, and have generally had to note passport details and provide them to the police on request.

    • I tend to agree – I answered my own question *after* asking it, always the more embarrasing way ’round.

      In my defence, the definition of tenants includes more than just “lodgers”; it includes licensees, which includes hotel guests. My reference to the exclusion of holiday lets from “protection” was to their exclusion from security of tenure – which implies that, absent that exclusion, a holiday let would be a letting of premises as a dwelling. I can’t see any explicit exclusion from the Immigration Act provisions. It’s the “only or main residence” bit that has that effect.

      There is provision for the SoS to produce a Code of Guidance as to the treatment of holiday lets – I’m looking for that.

      That does still leave my original question, though. And also means that hotels/other providers have to be careful about long-term visitors – who may, unbeknown to them, have given up their foreign residence in breach of their visit visa terms.

    • Are there any (other) forms of permission to enter and remain that don’t carry a right to rent?

    • the landlords code of guidance in draft does include stuff about holiday lets and suggests that three months is the cut off pojnt beyond which landlords should be checking. And no form of leave actually includes the “right to rent”: it is a bit of an imaginary thing really, leaving the Home Office checking service (which will, of course always respond with alacrity and accuracy) to make it up as they go along. If anyone has limited leave the “landlord” is to note that fact and then check again a month before the leave is up and/or annually. Except that the guidance explains it in a way that makes it absurd (saying that they should check annually if the leave has less than a year to run). Presumably what will happen with the checking service is what happens now when local authorities check: the Home Office often just says things like “he has limited leave to remain, so cannot be eligible”. Of course, with local authorities we have the ombudsman to tell them that they need to do the housing law bit and leave the Home Office to misapply the immigration law bit. But with private landlords no such option. I am told the employer checking service is similarly unreliable. Needs, of course, independent scrutiy. Over to you lawyers: how can we get that? what cases need to be brought?

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  10. I have to say that you might be right.

    “Given that many landlords can’t even get the tenancy deposit provisions right, the prospect of requiring them to identify Zambrano carers and other immigration issues was, frankly, ludicrous.”

    The government guidance for landlords is something like 19 pages of “ifs buts and maybes”

    Still realistically if the landlord has obtained, checked and copied and dated originals, even if s/he hasn’t got it right s/he is going to be mighty difficult to convict…….

    Its going to be the cases where s/he has nothing on file at all. That prosecution looms.

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  12. This looks, and reads, as if it has been rushed out quickly.

    Are they really going to be so stupid as to pass the Bill without any rights of appeal? Or do they just think that people will leave and not bother challenging notices if they are hear unlawfully? Which might be right for those that are, but presumably those who are here lawfully are almost certain to challenge this. The High Court is going to love the JRs on this.

    The way I read the different eviction provisions is that they have just gone belt and braces. Excluded from the PEA 77, but its also a possession order so you can use the High Court enforcement process. If you want to do that, issue a claim for possession and use the mandatory ground.

  13. A couple of points for clarification:

    The bill talks of ‘occupiers’ as well as tenants. If someone with the R2R holds a proper tenancy but an occupier 18+ not named on the agreement cannot prove R2R, does this invalidate the tenancy?

    How are social letting Starter Tenancies treated? If a Starter Tenancy is proven to be not a qualifying tenant, can it be ended by the draconian NTQ before its term?

    • Barry
      On your first point, if the person who holds the tenancy has the right to rent then the Home Office can not issue a Notice to end that tenancy, but presumably they may issue a Notice to the tenant, to terminate the licence or other arrangement of the 18+ occupier. the ‘head tenancy’ would remain in place.

      You may have noticed that in a joint tenancy where at least one person has the RTR, a court may transfer the tenancy to them instead of awarding a possession order to the landlord. But that of course depends on whether the landlord seeks a formal order or uses what seems to be a right to terminate without an order of the Court. If the landlord decides to use the informal method then an existing tenant with the RTR, may not have a remedy at all as it seems it is only an option of the court in relation to a landlord’s request, not on an application of a joint tenant.

      Social letting HAs and Councils utilise existing legislation that controls the allocation of their properties – and importantly will have legal sections and various other means of checking eligibility in any rental situations where eligibility may be in doubt.

    • On the first point, that isn’t quite correct. By new s33D(7) “occupier” includes “a person who is otherwise occupying the premises and of whom the landlord is aware or would be aware if the landlord made reasonable enquiries.”

      The SoS can therefore serve a s33D(2) notice on the landlord. This triggers the landlord’s obligation (on pain of committing an offence under s33A) to terminate the tenancy by service of a s33D(1) notice. So the tenant with RtR gets thrown out.

    • Thanks R. Fully accept your point. What was in my mind was someone who after a tenancy has started s accepted as a lodger, whom then arguably may not be known (or expected to be known) by a landlord as living there. It raises the issue of how often a landlord should ask a tenant who was living in the property ( or ‘staying’) in a tenancy.

      But of course I am wrong on that as well, because was this intended to require tenants to undertake enquiry of subtenants. Though I cannot see it in the Bill.

      I have however just noticed the word ‘may’ in S33D (1) as in the permissive rather than ‘must’ or ‘shall’. Does that conflict with the notion of an obligation, or does it just indicate that it gives the landlord the right to issue a notice. This is fraught with holes.

  14. Thanks Colin. I make the point about social landlords for 2 reasons: first, they are increasingly taking on agency services on behalf of private landlords and so will be exposed to the new legislation in ways their current practice may not cover. Is this a ‘new business’ opportunity for them?

    And secondly, if a social tenant on an assured tenancy suddenly becomes ‘unqualifying status’ under HO rules, presumably the social landlord will need to follow the new mandatory ground 7B.

    Do you if the new law will be extended to/be likely to be extended to the devolved countries?

    • Would not like to speculate on extension to NI & W.; there was supposed to be an evaluation before an extension to cover all of England, but as Cameron said now they are not hamstrung by the LibDems they can do what they want.

      Some councils do of course advertise private lets and/or do tenant find & sign up outside of the formal council/social housing system that could put them in the category of agent. When employed I was often concerned about the too close relationship of section seeking private accom and landlords & housing advice

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