Letting to Illegal Immigrants – the New Restrictions

In 2014 the government brought in restrictions on letting residential property to illegal immigrants, but only applied them to a pilot area, made up of Birmingham, Dudley, Sandwell , Wolverhampton and Walsall. I wrote about it at the time, but as the restrictions are now being rolled out across the whole of England (but not Wales, Scotland or Northern Ireland) with effect from 1st February 2016 I need to do so again. I’ve cut and pasted a lot from my earlier piece, so don’t be too surprised if it looks familiar. However, the government has taken the opportunity of tweaking things here and there, so there are some changes too.

The Law

Immigration Act 2014 sets thing out in ss 20-37. It defines:

  • 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 2014 for the Midlands, and 1st February 2016 elsewhere, and relates to lettings (etc) starting on or after then. Existing tenancies and renewals aren’t affected.

The Code of Practice

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  and some Guidance for Landlords 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 access to the Code. And as it gets changed from time to time you need to check the on-line version each time.

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. Fortunately the Home Office has produced a guide with some illustrations, although as the tenant can produce identity cards (current or expired) from any of the EU or EEA  countries or Switzerland it would have been helpful if they had shown a more comprehensive selection.

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. And then evict them (using the existing legal framework – s22(9) of the Act says that the tenancy isn’t void because of the immigration illegality), or they may have more penalties to pay.

What’s going to happen?

There is a serious risk that a lot of landlords are going to 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, 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.

And the future?

More restrictions are set out in the forthcoming Immigration Bill 2015-16. This is working its way through Parliament at the moment so the wording isn’t yet been set in stone. This is the present version, but it may change. However the key points are:

  • Landlords (or agents) who let to tenants (etc) in breach of the restrictions, and know, or have reasonable cause to believe that this is the case will be guilty of an offence and can be sent to prison for up to 5 years.
  • The Home Secretary can serve a notice on a landlord informing them that the occupiers of their premises, or all of them, are disqualified as a result of immigration status from occupying premises under a residential tenancy agreement. The landlord can then serve at least 28 days written notice on the occupants and the tenancy thereby comes to an end. The section goes on to say, rather cryptically

The Notice is enforceable as if it were an order of the High Court.

Presumably this means they can send in the HCEOs, without having to bother the courts themselves at all. Such tenancies are excluded from the protection of the Protection from Eviction Act 1977.

  • There are provisions to insert implied terms into ASTs allowing them to be terminated if the tenants are disqualified as a result of immigration status from occupying premises under a residential tenancy agreement, and to give new mandatory grounds for possession for assured and secure tenancies.

Comment

This is controversial stuff. Although the government said that the pilot scheme doesn’t show there was any increase in the difficulty non-white applicants had over white applicants when seeking accommodation, this seems to have been a very small sample, and a short time-period, and other surveys produced different results. Rolling it out over the whole country, including London, is bound to make things a lot more difficult.

In the meantime, if you are a landlord, check the paperwork carefully, keep good copies, and if you are in any doubt it may be prudent to say no. And if you are a tenant make sure that your paperwork is spotless, or you are going to find things a lot harder.

The provisions in the Immigration Bill are very doubtful. The ability to serve a notice that is enforceable as if it were an order of the High Court is going back to Victorian times, and the ability of a Secretary of State to issue a notice to trigger this, bypassing the courts altogether, is a serious attack on the rule of law, which the courts will not necesarrily take lying down. Watch this space.

As ever, there are more detailed commentaries on the Nearly Legal blog (this is a link to several posts on this subject)  and on Tessa Sanderson’s Landlord Law blog, and elsewhere.

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Author: Coventry Man

A perspective from a litigation lawyer in the Midlands. After many years in Coventry I am now with David Lee Solicitors in Kenilworth, helping people with all sorts of litigation, especially property and landlord & tenant problems.

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