Andrew Arden QC and Annette Cafferkey discuss the Government’s proposal to require private sector landlords to check the immigration status of their tenants.   Introduction In March this year, the Prime Minister made a speech on controlling immigration and welfare reform, in which he expressed the view that Britain was a “soft touch” and, as a result, was attracting a disproportionately high number of immigrants. In order to counter this, he said that a multi-faceted approach was necessary. It could not be left to the Home Office; rather, in his view, control should also be exercised through the welfare system, the healthcare system and through housing policy, so as to disincentivise immigrants from coming to UK.   On the subject of social housing, Mr Cameron said “we cannot have a culture of something for nothing. New migrants should not expect to be given a home on arrival. And yet at present one in ten social lettings go to foreign nationals. So, I am going to introduce new statutory housing allocation guidance this spring to create a local residence test.” Two obvious points arise: first, the statistic that one in ten social lettings go to foreign nationals has no relevance to the apparent need for a local residence requirement unless we know how long those foreign nationals had been residing in an area before obtaining social housing; secondly, the current statutory allocation provisions and guidance already enable local authorities to have regard to an applicant’s local connection in determining how the allocation of social housing is prioritised. What difference will yet more guidance make?   Still more controversially, Mr Cameron went on to say that “right now, today it is too easy to be an illegal immigrant in Britain. It’s too easy to get a driving licence, get a house without a check on your immigration. So we are legislating to make sure illegal migrants can’t have driving licences….I now want us to make sure that private landlords check their tenants’ immigration status with consequences for those rogue landlords who fail to do so.”   In effect, the Government intends to turn private sector landlords into quasi-immigration inspectors. As most housing practitioners and most lawyers will agree, immigration law is highly complex and difficult to navigate. One wonders if such a scheme is realistic or whether it is doomed to inevitable fiasco.   Realistic or not, the idea is firmly on the Government’s agenda. It was implicitly alluded to in the Queen’s Speech on May 8, 2013 by reference to a new Immigration Bill. The background briefing notes to the speech state that the “main benefits of the Bill would be stopping immigrants from accessing services they are not entitled to,” including by requiring “private landlords to check the immigration status of their tenants.”   How will this work in practise? What shape will this new proposal take? The Government has repeatedly said that it has no intention of introducing new regulations in the private rented sector, or “additional red tape”: see the DCLG website which explains the Government’s position by stating (on June 13, 2011) that the “private rented sector is already governed by a well established legal framework and we will not introduce any further regulations. This will ensure that the sector is free to grow in response to market conditions. In the past over-regulation drove landlords out of the rental market. We don’t want to introduce any measure which would form a barrier to potential landlords considering renting out their properties. Over regulation would reduce the number of properties to rent and wouldn’t help tenants or landlords…..Councils have a wide range of powers at their disposal to tackle the minority of rogue landlords who fail in their responsibilities. We are working with them, to ensure that any barriers to their using those powers are lifted.”   The policy of not increasing red tape in order to promote and maintain a free market economy in the private rented sector is plainly inconsistent (and not sustainable) with its decision to impose a requirement on landlords to conduct immigration status check before letting their properties.   A recent DCLG news release (May 8, 2013) referred to the new proposal under the sub-heading of “Rogue Landlords”. In earlier guidance to local authorities, Dealing with Rogue Landlords (August 2012), which was on its face primarily concerned with the enforcement of housing standards, the foreword stated that “false promises of work and accommodation are the key means by which illegal migrants are tempted to the UK and then exploited. The activities of rogue landlords helps fuel illegal working and benefit fraud and the harmful effects go beyond those individuals whom them exploit. The victims…are also the wider community…whose local services are robbed of resources. Further, allowing the development of a “shadow” housing market carries wider dangers to public health and community relations.”   Adding it all together, it appears that we have a new description of rogue landlord as including someone who provides accommodation to illegal immigrants and, once the new provisions are in force, as someone who fails to check on the immigration status of his tenants. This is a very long way from a traditional use of the phrase and undermines it in the sense that it takes a concept - the rogue landlord - on which all are agreed and replaces it with one on which there will be divided opinions, for while many people are opposed to illegal immigration, few see immigration control as the business of a landlord: so far as those few will include many local authorities, the effect is to water down rogue landlordism as a universal and priority target.   Of course, targeting “rogue landlords”, will result in increased homelessness – those who are unlawfully accommodated will be evicted with little or no hope of any accommodation elsewhere. The DCLG guidance advises local authorities, in relation to homelessness arising out of their efforts to tackle rogue landlords (as that expression is being used), to “consider reconnecting migrants to their home country especially where the alternative is for them to become destitute and sleep rough. Authorities may also wish to consider the provision of short-term accommodation (‘reconnection beds’) where people have volunteered to return home to prevent rough sleeping. Local authorities will want to work closely with voluntary sector partners to ensure that anyone displaced from beds in sheds or other unsuitable accommodation is picked up. Local authorities should work closely with the UK Border Agency who will be able to confirm which individuals have illegal immigration status and take action.”   What of the landlords? What will be expected of them? Will they be expected to decipher any number of immigration documents? Will they be expected to understand immigration law? Will they be prosecuted if they fail to carry out the necessary checks or misunderstand or misapply the law? Currently, employers have to check the immigration status of prospective and current employees by inspecting documents detailed in an approved Home Office list. Failure to carry out the required checks may result in a maximum fine of £10,000. In addition, it is a criminal offence knowingly to employ an illegal worker, the maximum penalty for which is two years custody and/or an unlimited fine if the matter is dealt with in the Crown Court. If something similar is implemented in relation to private sector landlords, it is inevitable that many will simply refuse to let accommodation to foreign nationals for fear of prosecution.   Conclusion. It is likely that the immigration proposals will be implemented. How they will be enforced is not yet clear but looking at some of the discussion around this issue, it appears that the principal responsibility for enforcement will probably fall to local authorities. Homelessness, which is already on the increase, will undoubtedly increase further, as will the level of destitution that we see in the streets.  But then, the idea was to put people off the UK, wasn’t it?