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”.
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).
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).
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?).
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.