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).
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.