Pressure growing for landlords and migrants
Adrian Berry examines the new provisions added to the right to rent scheme by the Immigration Act 2016.
Landlords are prohibited from authorising an adult to occupy premises under a residential tenancy agreement where that person is disqualified as a result of his or her immigration status.
The Immigration Act (IA) 2016 adds further provisions to the right to rent scheme introduced into law by the IA 2014. It is hard to discern the basis for the 2016 Act innovations: the scheme was new, it had begun to operate in certain local authorities in the West Midlands from 1 December 2014, and it had been extended nationwide on 1 February 2016. At the time the bill that became the 2016 Act was making its way through parliament, it was simply too soon to tell whether or not the scheme operated effectively in furtherance of its objectives. Nonetheless, further provisions were made and these may only be properly understood in the context of the scheme itself.
Landlords as immigration officers
The right to rent scheme forms part of a government initiative, pursued through legislation and administrative action, to make the environment hostile for migrants who are not lawfully resident in the UK. It compels (via IA 2014 ss20-37) landlords to act like immigration officers and check the status of adult occupiers of residential premises. The sanction for permitting an adult who is disqualified on immigration grounds to occupy accommodation pursuant to a residential tenancy agreement is the imposition of a civil penalty. In addition, the IA 2016 introduces criminal sanctions. By establishing that a migrant’s documents were checked and copied in accordance with prescribed requirements (a process that requires the landlord to confirm a migrant’s identity as well as his or her right to rent), a landlord may establish a statutory excuse so he or she does not have to pay the civil penalty.
The machinery of the scheme
The scheme governs residential tenancy agreements that grant a right of occupation to one or more adults as their only or main residence and that make provision for payment of rent (IA 2014 s20(2), (4)–(6)). Both tenancies and licences fall within the scheme (s20(3)). In practice, this means private sector residential tenancy agreements, as IA 2014 Sch 3 makes provision for classes of agreements that are excluded from the scheme and embraces residential tenancy agreements conferred in the public sector or in performance of a public function.
British citizens, nationals of other European Economic Area (EEA) states, and Swiss nationals need only prove their nationality to the satisfaction of a landlord to establish that they qualify to occupy accommodation; nationals of other countries must prove that they have a right to rent (s21(5)). If a person requires leave to enter or remain in the UK and does not have it, or if that person’s leave is subject to a condition that prevents his or her occupation of the premises, then he or she does not have a right to rent (s21(2)). As regards persons who lack a right to rent, the home secretary has the power to grant permission to occupy premises (s21(3)).
Where a person has time-limited leave to enter or remain, or that person is a non-EEA national family member exercising an EU right of residence, he or she is said to have a limited right to rent (s21(4)); others who are lawfully present in the UK without restriction as to time enjoy an unbound right to rent. Landlords are prohibited from authorising an adult to occupy premises under a residential tenancy agreement where that person is disqualified as a result of his or her immigration status (s22(1)).
Landlords must check a person’s immigration and nationality documents prior to concluding a residential tenancy agreement, see: Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order 2014 SI No 2874; Immigration (Residential Accommodation) (Prescribed Cases) Order 2014 SI No 2873; Code of Practice on Illegal Immigrants and Private Rented Accommodation (Home Office, updated May 2016); and Code of Practice for Landlords: Avoiding Unlawful Discrimination When Conducting ‘Right to Rent’ Checks in the Private Rented Residential Sector (Home Office, October 2014).
The prohibition on granting a right of occupation, by way of a residential tenancy agreement, to disqualified persons, extends to tenants, other adults named in the agreement, and other adults not so named (where reasonable enquiries as to relevant occupiers were not made, or where such enquiries were made and it ought to have been apparent that the person was a relevant occupier) (s22(4) and (6)). The prohibition on granting a right of occupation extends to the situation where a residential tenancy agreement grants a right of occupation to an adult with a limited right to rent and that adult later becomes disqualified as a result of his or her immigration status but continues to occupy the premises (s22(5)).
Where a disqualified person occupies premises under a residential tenancy agreement, the home secretary may give the responsible landlord a notice requiring payment of a penalty (up to £3,000 per person) (s23(1)–(2)). In cases where immigration status was in issue prior to the grant of the residential tenancy agreement, the principal basis on which a landlord may establish a statutory excuse and avoid the penalty is where he or she complied with the prescribed requirements for checking and keeping copies of the person’s immigration and nationality documents (s24(2)(a)).
In cases where a residential tenancy agreement is in effect and an adult with a limited right to rent who is occupying the premises becomes disqualified from so doing (for example, where his or her time-bound leave to remain runs out), a statutory excuse to avoid the penalty is established where the home secretary is notified of the position as soon as reasonably practicable (s24(6)(a)).
Where an agent acts for a landlord by agreement and has assumed responsibility for right to rent checks, provision is made to distribute responsibility to that agent (s25(2)). The home secretary may give a penalty notice to an agent (s25(3)). As is the case for a landlord, an agent may establish a statutory excuse to avoid a penalty (s26).
Penalty notices must contain prescribed information giving reasons for the penalty, stating the amount to be paid and giving information about the procedure for challenge (s28(2)). On receipt of such a notice, there is an administrative review procedure whereby a landlord or agent may object that he or she is not liable to the imposition of a penalty, has established a statutory excuse, or ought not to pay that amount (s29(1)). On consideration of such an objection, the home secretary may cancel, reduce or increase the penalty, or she may determine to take no action (s29(5)). A landlord or agent whose objection is not sustained may, thereafter, appeal to the county court seeking the cancellation or reduction of the penalty on the same grounds (s30(1)). A penalty lawfully imposed is recoverable as if it were payable under court order (s31(2)).
Innovations in the Immigration Act 2016
The IA 2016 introduces into the 2014 Act a number of provisions to make the scheme even more muscular. The new provisions concern the commission of criminal offences and the basis on which a landlord may recover possession. Further, related, changes are made to the Protection from Eviction Act (PEA) 1977, the Rent Act (RA) 1977 and the Housing Act (HA) 1988.
A criminal offence is created where a landlord knows or has reasonable cause to believe that premises are occupied under a residential tenancy agreement by an adult disqualified as a result of his or her immigration status (IA 2014 s33A, inserted by IA 2016 s39(2)). A similar offence is created in respect of agents (IA 2014 s33B, inserted by IA 2016 s39(2)). The offences may be tried summarily or on indictment; in the latter case, a term of imprisonment of up to five years may be imposed (IA 2014 s33C, inserted by IA 2016 s39(2)). At the time of writing, these provisions are not yet in force.
In addition, further regulation is imposed on tenancy agreements, so that landlords may recover possession more readily where an adult disqualified on immigration grounds occupies premises (IA 2014 s33D, inserted by IA 2016 s40(2)). This erodes the protection afforded to tenants and other occupiers.
Where all the occupiers of premises are disqualified on immigration grounds, a landlord may terminate the residential tenancy agreement where he or she has received notice in writing from the home secretary identifying the occupier or occupiers and stating that they are disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement (s33D(1)–(2)). The landlord may then terminate the residential tenancy agreement by giving notice in the prescribed form (s33D(3)). Such a notice is to be treated as a notice to quit and is enforceable as if it were an order of the High Court (s33D(6)–(7)). At the time of writing, this provision is not yet in force.
Where the home secretary has given notice to the landlord stating that all the occupiers are disqualified from occupation as a result of their immigration status, and the residential tenancy agreement has been terminated following the landlord’s service of notice on the tenant, there is no requirement to obtain a court order to recover possession as the tenancy or licence is treated as excluded from protection from eviction provision (PEA 1977 s3A(7D), inserted by IA 2016 s40(5)). At the time of writing, this provision is not yet in force.
In addition, in the case of an assured tenancy under the HA 1988, where the home secretary has given notice to the landlord stating that all the occupiers are disqualified from occupation as a result of their immigration status, the tenancy is brought to an end following service by the landlord (in the prescribed form) on the tenant terminating the residential tenancy agreement (HA 1988 s5(1)(d), inserted by IA 2016 s40(6)). This allows the landlord to serve a notice on the tenant terminating the residential tenancy agreement. Thereafter, the landlord may recover possession without a court order. At the time of writing, this provision is not yet in force.
The IA 2016 also makes provision for other procedures for ending a residential tenancy agreement. As a result, it is an implied term of a residential tenancy agreement that the landlord may terminate the tenancy if the premises to which it relates are occupied by an adult who is disqualified as a result of his or her immigration status from occupying premises (IA 2014 s33E, inserted by IA 2016 s40(2)). This provision applies to a residential tenancy agreement relating to premises in England if it is a tenancy or sub-tenancy or an agreement for the same, but it is not a protected or statutory tenancy under the RA 1977 or an assured tenancy under the HA 1988. At the time of writing, this provision is not yet in force.
It is simply too early to tell whether the right to rent scheme is operating effectively.
As regards a residential tenancy agreement that is a protected or statutory tenancy, and where a tenant or occupier is disqualified as a result of his or her immigration status from occupying premises, IA 2016 s41(6) has introduced Case 10A into RA 1977 Sch 15 Pt 1 (‘Cases in which court may order possession’), to facilitate a landlord’s recovery of possession.
As regards a residential tenancy agreement that is an assured tenancy where a tenant or occupier is disqualified as a result of his or her immigration status from occupying premises, IA 2016 s41(2) has inserted Ground 7B into HA 1988 Sch 2 Pt 1 (‘Grounds on which court must order possession’), to facilitate a landlord’s recovery of possession.
Further difficulties for migrants
It is simply too early to tell whether the right to rent scheme is operating effectively. It creates a hostile environment for migrants who lack a right to rent, not only because they will not be able to secure accommodation from law-abiding landlords but also because they will be left at the mercy of unscrupulous landlords prepared to provide poor-quality accommodation, to charge over the odds and to exploit them as occupiers who have nowhere else to turn. While it is unlikely to succeed in putting pressure on unlawfully present migrants to leave the UK, it is likely to make it more difficult for all migrants (whether lawfully or unlawfully present) to secure residential accommodation and to do so free from prejudicial discrimination. ■