Letting to Illegal Immigrants – Not in the Midlands

From 1st December 2014 the new restrictions on letting residential property to illegal immigrants come into force for Birmingham, Dudley, Sandwell, Wolverhampton and Walsall (I was going to say Birmingham and the Black Country but thought better of it.) It is a pilot scheme and the restrictions are intended to roll out across the rest of the country in due course, and subject to the result in May. Landlords need to be aware of them because if they are broken they may be subject to a civil penalty of up to £3,000, per immigrant. Hence this short piece.

ss 20-37 of the Immigration Act 2014 hold the legislation. They define

• persons disqualified by immigration status –  who are, not terribly surprisingly, people who have no right to remain in the UK; and
• persons with limited right to rent – who are people with time-limited rights to be in the UK, plus people exercising EU rights to be in the UK, but are not EU citizens.

and make a landlord liable to a penalty if they allow them to occupy residential property, either as tenants, or licensees, or indeed lodgers.

There are a number of exceptions for the people

• only adults count;
• and UK, EU, EEA and Swiss nationals are exempt.

and for the lettings

• only residential lettings – ie which the adult will occupy as their only or main residence (even if the premises are also used for other purposes.)
• leases of 7 years or more don’t count;
• nor does social housing, hostels, care homes, student accommodation and a variety of other things that are set out in Sch3,

However, lettings include leases, licences, sub-leases and licences and agreements for them  (s20(3)). And the prohibition can be broken by the tenant, or any other adult authorised to live there, or any adult not named in the tenancy agreement who actually lives there unless reasonable enquiries were made and they were not disclosed.

All this starts on 1st December, and relates to lettings (etc) starting on or after then. Existing tenancies and renewals aren’t affected.

What Does the Landlord Have to Do?

Immigration law is notoriously complex, and so the Government, rather than giving all landlords a 3 year training course, and free legal assistance afterwards, has prescribed a Code of Conduct which landlords are meant to follow. If they carry out the procedure in the Code they won’t have to pay the penalties. All landlords really need to have a copy of the Code.

Some of the procedure is obvious. The landlord or agent should interview all the prospective occupants and see if they are intending to live there. If there is any doubt about the age of a child then documentary evidence should be seen and a copy kept. And all the adults should produce appropriate original documents which should be checked in their presence and a copy taken.

And for some people the documents are easy too – UK, EU or EEA or Swiss passport, or EU/EEA/Swiss identity card. They don’t even need to be current.

However, it rapidly gets a lot harder – do you know what a biometric immigration document issued by the Home Office looks like? Me neither.

And once you get onto the “acceptable document combinations” or the “Documents where a time-limited statutory excuse is established” – there is a long list of things that most landlords have never heard of, and will have no idea if they are genuine or not.

Finally, if there is an application in train at the Home Office for permission to remain the landlord has to contact the Home Office online (or by phone) quoting the reference number supplied by the applicant.

For time-limited occupants the landlord has to follow their cases up to make sure they don’t overstay their leave. And the document combinations need to be repeated every 12 months.

If a landlord finds that an occupant is there illegally they should report them to the Home Office right away. Provided of course that they have already followed the Code to the letter, or they are just going to bring down hefty penalties on themselves.

What is the Landlord likely to do?

Avoid anybody who looks even slightly foreign. So there is another Code of Practice on Avoiding Discrimination which says in effect that landlords have to document-check everybody, including in some circumstances their own adult children, and keep copies for inspection, or they can be accused of racial discrimination. So the revised expectation is that they will avoid anybody who can’t produce a UK passport, or possibly an EU one. How do you know if the other documents are real?

This is wrong, and very unfair on a lot of people who are having a hard enough time living in a strange land but are on the right side of the immigration line. But a family of four may cost a landlord £12,000 in penalties, so why take the risk? Mind you the £3,000/head level only kicks in if the landlord has already had one breach, and the occupant isn’t just a lodger.

Comment

Regrettably there is a lot of feeling that whipping up widespread discrimination against foreigners is the intention of the legislation. And that the choice of the West Midlands was the result of the row over religion in schools. These feelings may be entirely wrong, and one would certainly hope that a government would be above these sorts of things.

That beside, it is horribly complicated. There have been pieces by Nearly Legal and in Tessa Shepperson’s Landlord Law blog giving a lot more info, as ever. This piece is just a warning.

Because you have to know that you’re in a minefield before you start looking for the mines.