The UKIP-ification of law

Or, why Nigel Farrage doesn’t need to worry about that house-load of Romanians moving next door to him once the Immigration Act 2014 comes into force.

The Immigration Act 2014 received Royal Assent on May 14, 2014 and, as is obviously the case for an immigration act, it contains significant new developments in housing law in Pt.3, Ch.1 (“Access to Services Etc / Residental Tenancies”). The developments are odious and badly thought out, as I’ll try and explain.

Disqualified potential occupiers

Section 21 introduces the concept of the person who is, by virtue of his immigration status, “disqualified” from “occupying premises under a residential tenancy.” A “residential tenancy” is any lease, licence, sub-lease or sub-licence (including an agreement for any such thing) which gives a right of occupation of premises (land, buildings, moveable structure, vehicle or vessel) for residential use (as an only or main residence) and which provides for payment of a rent (whether market or not) (s.37).

The disqualifed persons are:

(a) those who are not “relevant nationals” (i.e. British nationals, EEA nationals or Swiss nationals – ss.21(1),(5)); and,

(b) who do not have a “right to rent” (and you do not have a right to rent if you require leave to enter or remain in the UK but do not have such leave or your right to enter or remain in the UK is subject to a condition prevening you from occupying the premises – ss.21(1),(2)).

Now, on the face of it, this is a pretty broad exclusion. There is then a limited re-inclusion provision (s.21(4)). If you have been granted leave to enter or remain in the UK for a limited period or if you are not a relevant national but have the right to enter or remain in the UK by virtue of an EU law right, then you have a “limited right to rent”.

Affected landlords

A landlord must not authorise a disqualified adult (not child – s.22(1), s.37(1) – so can I grant to a child to get around this issue? Presumably I’d still need to watch for s.22(6), below) to “occupy premises under a residential tenancy agreement”. Authorisation is given if a tenancy agreement is granted to either disqualified adult or if a disqualified adult is named on the agreement (s.22(3),(4)). Further, subject to a “reasonable enquiries” provision (s.22(6)), authorisation is given if an unnamed adult who is disqualified is permitted to occupy the premises (which seems to be a “Nelsonian blindness” provision to stop landlords just ignoring the likely occupiers and might scupper my attempt to avoid this by letting to a child).

A landlord is also taken to authorise an unlawful occupation if a tenancy agreement is granted to someone with a limited right to rent who later becomes disqualified (i.e. their leave to remain in the UK expires) and who remains in occupation after becoming disqualified (s.22(5)). Yes, you read that right, landlords will have to evict people whose immigration status changes. But, helpfully, the Act makes clear that a contravention of this section does not affect the validity of the tenancy agreement itself (so landlords can’t rely on their illegality to circumvent the tenancy – s.22(9); although I confidently predict we’ll see a rash of unlawful evictions in purpoted reliance on this provision).

Penalties

Contravention results in a requirement to pay a penalty of up to £3,000, as the Secretary of State considers appropriate (s.23). There are two excuses (as they are called) open to landlords. The first is to show that they complied with prescribed requirements (yet to be prescribed, presumably there  will be a “checklist” designed to make people prove they are not disqualified). The second is to show that an agent was responsible for the breach (s.24(2)). Similar provisions are made for fining agents (s.25) and for excuses by agents (s.26). A person given such a penalty may give notice of objection to the Secretary of State (s.29 – effectively an internal appeal) and then may appeal (by way of re-hearing) to the county court (s.30).

Codes of practice

The Secretary of State must publish a code of practice, setting out how fines will be calculated and, more generally, the approach of the Secretary of State will take to enforcement (s.32). There must also be a code of practice to help landlords and agents enture they comply with the law without breaking, inter alia, the Equality Act 2010 (s.33).

Exceptions

Schedule 3 has a list of agreements which are not caught by this provision. They include social housing provided under Pt.2, 1985 Act (secure etc tenancies), Pts. 6 and 7, Housing Act 1996 (allocations and homelessness). Interestingly, I can’t see an exception for housing associations. Care homes, hospitals, hospices and other healthcare releated accomodation is also excluded as are hostels and refuges and accomodation provided under the Immigration and Asylum Act 1999. For reasons I cannot fathom, mobile homes under the Mobile Homes Act 1983 are excluded. Tied accomodation and student accomodation are excluded as are long leases (since even this government wouldn’t ban immigrants from living in flats that they own; how would the London-based Russians manage?).

Thoughts

Landlords and agents find it hard enough to comply with the Tenancy Deposit rules. Do we really think they’ll be able to manage to follow all this? By way of example, you can have a “limited right to rent” if you’re a Zambrano carer. I doubt you’d find any landlord who knows what a Zambrano carer is, let alone how to identify one. And how on earth is the landlord supposed to know when they cease to be a Zambrano carer (and, hence, have to evict them otherwise the landlord is in breach of these provisions; if s.21, HA 1988 is available, that might not be a problem, but suppose it is during a fixed term? What Ground in Sch.2, HA 1988 will apply?). There will be outright discrimination against “foreigners”, partly through ignorance and partly through an abundance of caution. As Diane Abbott MP said at the second reading:

The effect of the Bill will be that when people such as my son and the children of some of my colleagues go to see a flat, they will be told that the flat is taken. Landlords will not want to take the chance of letting to someone who “might be” an illegal immigrant. I do not believe Ministers understand how it feels to knock on a door and be told, blatantly wrongly, that the flat or room is taken. That is what will happen as a consequence of the Bill.

If you’re a UKIP-supporting bigot you might think this sort of thing is fine. I, however, do not. This is a law which will lead to lots of lucrative work for lawyers (since eligibility law is very complicated) and misery for landlords and potential tenants. Well done to all concerned.

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.
Posted in Assured Shorthold tenancy, Housing law - All and tagged , .

21 Comments

  1. But, of course, if you can prove you are Romanian then you will not be caught by the new provisions as an EU citizen. Welcome to the world of immigration where the performance of enforcement is what counts: not good law or policy. And where whatever lip service is paid to the Equality Act disappears as soon as a politican or journalist wants to make a point.

    • Is that quite right? As I read it, you’ll need to be exercising a Treaty right, so simply being an EU national in itself won’t be enough.

  2. Romanians cannot be disqualified as they are “relevant” citizens, as the country belongs to the EEA.

  3. In fairness to me (which I always consider important) it was only supposed to be a topical joke :-)

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  5. An illuminating view on the pitfalls of legislation only very few comprehend and even fewer know how to apply. Landlords as agents of the Home Office re immigration matters – there must be something that can be brought to Judicial Review somehow, surely?

  6. Portuguese family, severely disabled child, 6 months pregnant 15 year old, mum was sex trafficked into this country by her family with promises of a job in catering. There was none. Now she’s been told she has to work as a prostitute to pay off they passage.
    Guess what Mr Cameron, I’m housing them in a 5 bed house in Kent this week and stuff me with straw if you think I’m going to become your Stasi housing officer.

  7. 1 we are not only talking about landlords but also people taking a lodger into their home owned or rented, or a tenant taking in a repalcement flatsharer technically asa alandlord

    2 do 7+ year leases escape the provisions if there is the normal forfeiture clause? is this where “the agreement can be terminated at the option of a party”

    “(3) An agreement does not grant a right of occupation for a term of 7 years or more if the agreement can be terminated at the option of a party before the end of 7 years from the commencement of the term.”

  8. Hello Folks – does anyone have an idea of whether charities providing accommodation to refused asylum seekers will get clobbered by this. We currently house around 15 destitute people and are worried that this act spells the end. We don’t charge and there are no tenancy agreements

    • Hm. S.20(2)(c) apparently requires payment of rent (whether or not a market rent) as a conditions of being a ‘residential tenancy’ for the purposes of the Act. I think this would be worth looking at carefully.

    • Thanks Giles – I’m sure it will be tested at some point but hopefully not by us. Our goal is to return people to the system and try and find a way forward, rather than hide them which doesn’t really serve any good purpose. However the current climate is a bit hostile to say the least and people take a lot of convincing. Thanks Ewan

    • Think I’ve worked it out – by looking at the act not the guidance on the act –

      Chapter 1
      (a)grants a right of occupation of premises for residential use,
      (b)provides for payment of rent (whether or not a market rent), THIS IS US – NO RENT and
      (c)is not an excluded agreement.

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  10. So, let me get this right –

    If a person falls fowl of this act, the landlord would serve notice, but the tenant has rights under the protection from eviction act to remain until a court order.

    If the eligibility changes back, would the tenant then have to prove to the Landlord they are eligible? Would a new tenancy start once they become eligible again?

    This seems an overly difficult task to someone who is not legally trained/ does not have a interest in law.

    • Yes, landlord would have to use s.21 process to evict. There is no penalty if the landlord/agent has notified the Secretary of State of the ‘post grant’ contravention “as soon as reasonably practicable” – S.24(6)(a).

      Yes, tenant should notify of change back to eligibility. No that wouldn’t stop there having been a contravention in the interim as far as I can see!

      There is no automatic new tenancy on T becoming eligible again.

  11. This could be made to work…

    What if anyone could get a document from the post office that confirmed they were allowed to rent in the UK, and a landlord could check the document was valid on line. The document could constrain the person’s photo and password number so making it easy for the landlord to confirm they were letting to the correct person.

    The rule could then be that if someone did not have a full UK passport the landlord would get sent to the post office to pay for the checks to be done.

    • Um Ian, the big problem is that immigration status and various rights to reside is insanely complicated. As J suggests, what about a Zambrano right to reside where a non-EU person with no immigration rights still has a right to reside as the carer for an EU citizen child? There will be nothing on the papers.

      The Govt is suggesting there will be a 48 hour response from a Home Office helpline. This is as likely to work as the Post Office. Meaning not a hope in hell.

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