The Government has today published the Immigration Bill in the Commons. We have previously commented on this planned bill and we had been hoping that it might be quietly shelved or downgraded. However that appears not to be the case. From our point of view we are only interested in the housing related provisions in Chapter 1 of Part 3 (which start here) and I am not going to discuss the rest of the Bill.
Chapter 1 of Part is, as most of you will know, concerned with ensuring that private landlords have to do the Home Office’s job for them. Sorry what I meant to say there was that the Bill is concerned ensuring that private landlords do not rent property to those who do not have leave to remain in the UK.
Structure
The portion of the bill we are concerned with is sections 15 to 32 inclusive along with Schedule 3. It is fearsomely complex and I have only spent a short time looking at it so please don’t hesitate to point out mistakes and omissions in the comments.
Section 15 defines who it applies to. Somewhat counterintuitively this operates by defining a “residential tenancy agreement” as any agreement for occupation (including sub-tenancies and licenses) which creates a right of occupation for adults of a premises for residential use as their sole or main residence even if there are other uses of that premises. Rights of occupation set out in Schedule 3 are excluded. These include most social and local authority accommodation and long leases which fall under the Commonhold and Leasehold Reform Act. Presumably the limitation to sole or main residence is to permit hotels to operate without falling foul of this legislation.
Section 16 disqualifies persons from occupying a property under a residential tenancy agreement if they are not a UK, EEA or Swiss national or they do not have a right to rent. A right to rent is something that can be given by the Secretary of State but is not something that you have if you have no right to enter or remain in the UK or your right to enter it remain is subject to a condition preventing you from occupying premises. There is also a limited right to rent which you have if your right to remain is for a limited period or you have entered on an EU right.
Section 17 makes it a contravention (notably not an offence) for someone to allow a person without a right to rent to occupy premises on a residential tenancy agreement. It distinguishes between “pre-grant contraventions” where the occupancy was commenced at a time the person had not right to rent and “post-grant contraventions” which is when there is a limited right to rent which expires during the permitted period of occupancy.
Section 18 permits the Secretary of State to give a penalty notice to a landlord in a variable amount of up to £3,000 for any contravention as defined under s17. It is worth noting that in a post-grant contravention the penalty is not levied on the landlord who originally allowed the occupancy but the landlord at the time the contravention occurred.
Section 19 sets out statutory excuses available to landlords. These all centre around the fulfilment of the “prescribed requirements” at some stage. There is also an excuse if there is an agent who was responsible for the contravention.
Section 20 deals with agents. An agent is responsible for the contravention if they are acting in the course of a business and there is a written arrangement whereby the agent is responsible for compliance with the immigration provisions. In that case s20 permits the Secretary of State may give a penalty notice to the agent of up to £3,000.
Section 21 sets out the excuses available to agents. Again these centre around the prescribed requirements.
Section 22 creates yet another definition. This is the “eligibility period” which relates to limited right to rent occupiers and is created for them once the prescribed requirements are complied with in relation to them. The eligibility period is one year or the remaining period of leave to remain or validity, whichever is the longest.
Section 23 deals with penalty notices and their requirements. Surprisingly one of these can be given without any effort being made to check whether any of the statutory excuses apply. Each adult in a property can have a separate penalty notice issued in respect of them so the £3,000 maximum will, in practice, probably not be the maximum.
Under section 24 someone who is served with a penalty notice can object to the Secretary of State. This must be done in writing. This can be on the grounds that there is no liability to the penalty, that there is an excuse, or that the penalty is excessive. The Secretary of state can then cancel, reduce, or increase the penalty or do nothing. The time to make such an objection is yet to be specified.
Section 25 allows for appeals to the county court (or sheriff in Scotland) without stating which court those appeals can be made to. These appeals can only be made after an objection has been made to the Secretary of State and must be brought within 28 days of the penalty notice being given or the Secretary of State determining the objection.
Enforcement is dealt with under s26 and is treated as a civil penalty made as an order of the county court or sheriffs court.
The Secretary of State is required to issue a code of practice under s27 which must give guidance on how a penalty is to be calculated and may also give guidance on how a residential tenancy agreement will be determined and what an only or main residence might mean.
Section 28 permits a further code of practice to be issued which will specify what a landlord or agent should and should not do to avoid committing racial discrimination. Frustratingly, this code is not a requirement and is entirely at the option of the Secretary of State. The code must be laid before Parliament.
Section 29 deals with the Prescribed Requirements which are to follow in secondary legislation. These may require a landlord or agent to obtain one or more documents from a occupier; to verify, retain or copy it, or take some other steps. The idea of landlords being encouraged to retain documents I find particularly concerning. Even if this is not what is ultimately required I can see some landlords treating this as a permission to help themselves to a more useful variety of tenancy deposit.
The remaining sections deal with transitional provisions, exemption of the Crown as a landlord, and definitions and interpretation respectively.
Comment
This legislation is long and complex. I have had real trouble digesting it all and there is a lot of complex exclusions and other small changes and qualifications. I suspect there are loopholes and that there will be efforts made to find them. I don’t really see why there is a need to separate the penalty system from the criminal courts and this looks like an effort to avoid difficult decisions in the Courts. At the same time it could be argued that it avoids criminalising landlords who have made a mistake.
Guidance
There is also a summary factsheet available from the Home Office. This indicates that there will be an online checking service as well as a telephone and email helpline made available to landlords. There will also be a service to assist migrants who do not have evidence that they have a right to rent. The fact sheet also indicates the intention to implement these provisions from October 2014.
Drafting notes
As a, slightly pointless, aside it is interesting to note the contrast in drafting styles between this bill and those that have come from the CLG drafters. They tend to use definitions from other pieces of housing-related legislation whereas this Bill defines almost everything itself. This leads to a more self-contained piece of legislation but it makes it fiendishly complex and self-referential.