They said it was coming and now it’s almost here. The new rules under the Immigration Act 2016. So what are these?
New rules on criminal liability
After 1 December, landlords who knowingly let to someone without a right to rent and agents who fail to notify their landlords that someone has a right to rent, will be vulnerable to criminal proceedings.
If found guilty the penalties are an unlimited fine or imprisonment for up to five years.
I don’t think honest landlords / agents who make genuine mistakes should worry about this too much. These rules are aimed at the low life criminal element who provide substandard accommodation for illegal immigrants at rip off prices.
I suspect also that the Home Office has better things to do than bring expensive prosecutions against anyone else. Most people breaching the rules will probably be dealt with via the existing penalty charges.
There will also be a defence to any criminal proceedings if you have taken steps to evict the offending tenant within a reasonable period of time from finding out that they do not have a right to rent – three months being considered a ‘reasonable time’.
So let’s have a look at the new rules on gaining possession.
New procedures to recover possession.
There are two of these:
The 28-day notice procedure
This is a prescribed form which you can serve on your tenant (or tenants if all of them are there without any right to rent), after getting notification from the Secretary of State (a copy of which you need to attach to the notice).
Once the 28 day notice period has expired, you can treat the notice as being an order of the High Court and use the High Court Sheriffs to evict them without further ado (the Sheriffs will be pleased at the prospect of this extra work).
However, as the occupiers are no longer protected under the Protection from Eviction Act 1977 you could arguably just change the locks one day when they are out – provided no force or violence is involved. (Although note that I need to check this point – see comments below)
The big issue with this procedure is that there does not seem to be any appeal procedure if the Secretary of State serves the notice in error where the occupiers DO have a right to rent. Or have I missed something?
A new Ground 7B
This is a new mandatory ground which has been added to Schedule 2 of the Housing Act 1988. This will probably be used mostly if the 28-day notice procedure is inappropriate for example if only one of joint tenants does not have a right to rent.
However, if this is the case, the Judge will have the option, at the hearing, instead of making a possession order, to order that the tenancy agreement be changed by removing the tenant without the right to rent. The tenancy agreement will otherwise remain unchanged and the other tenants will retain all their rights (apart from the fact that there are fewer of them liable for the rent).
New section 8 notice
As we have a new ground for possession, this means that the Section 8 notice prescribed form is being amended.
My Landlord Law forms have already been updated so Landlord Law members will be all right.
Tenants – after 1 December, if you are served a section 8 notice which does not refer to the Immigration Act 2016 at the top, it will be invalid and you will have a technical defence to any possession proceedings based on it.
Conclusion
Landlords and letting agents will no doubt be feeling very alarmed at these new rules, particularly the prospect of imprisonment for getting things wrong. However so long as they are careful they should be all right. As I say above, the Home Office have better things to do with their time than bring prosecutions against people making genuine errors.
I would suggest you introduce very strict procedures which include double checking that right to rent checks have been done before any keys are handed over to tenants. And if you find out that any of them do not have a right to rent – take action swifly.
Things are looking grim for obviously foreign looking and sounding tenants, with a right to rent, as they are going to find it increasingly hard to find somewhere to live.
It could also be difficult for British citizens who cannot afford to get a passport.
These are the times we are living in though. Be thankful if you are not at risk.
Romain says
November 28, 2016 at 10:32 AM“However, as the occupiers are no longer protected under the Protection from Eviction Act 1977 you could arguably just change the locks one day when they are out – provided no force or violence is involved.”
Interestingly that’s the same scenario as if a tenant serves notice to quit but does not leave.
Tessa Shepperson says
November 28, 2016 at 10:52 AMI have just had a quick look at the section in the Immigration Act 2016 http://www.legislation.gov.uk/ukpga/2016/19/part/2/crossheading/residential-tenancies/enacted and I can’t see anything about amending the Protection from Eviction Act 2016 (which I had sort of assumed, from what I had read, was there) – so I will have to do a bit more research on that one.
That will teach me to write a blog post without double-checking every point!
I have amended the blog point to flag up that this point is uncertain.
Richard says
November 29, 2016 at 1:59 PMDoes 33e (5) not now exclude them from PoE Act 1977?
Tessa Shepperson says
November 29, 2016 at 2:34 PM33e(5) of what? Is it possible for you to put a link? I can’t seem to find it …
Richard says
November 29, 2016 at 2:40 PMSorry, section 33E (5) Immigration Act 2016
http://www.legislation.gov.uk/ukpga/2016/19/part/2/crossheading/residential-tenancies/enacted
33E
Other procedures for ending agreement
.
(1)
It is an implied term of a residential tenancy agreement to which this subsection applies 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 their immigration status from occupying premises under a residential tenancy agreement.
.
(2)
Subsection (1) applies to a residential tenancy agreement relating to premises in England if—
.
(a)
it is a tenancy or sub-tenancy or an agreement for a tenancy or sub-tenancy, but
.
(b)
it is not a protected or statutory tenancy within the meaning of the Rent Act 1977 or an assured tenancy within the meaning of the Housing Act 1988.
.
(3)
For provision relating to a residential tenancy agreement which is a protected or statutory tenancy where a tenant or occupier is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement, see Case 10A in Part 1 of Schedule 15 to the Rent Act 1977.
.
(4)
For provision relating to a residential tenancy agreement which is an assured tenancy where a tenant or occupier is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement, see Ground 7B in Part 1 of Schedule 2 to the Housing Act 1988.”
.
(3)
In section 35 (transitional provision) after subsection (6) (inserted by section 39(3)) insert—
.
“(7)
Sections 33D and 33E apply in relation to a residential tenancy agreement entered into before or after the coming into force of section 40 of the Immigration Act 2016 (which inserted those sections into this Act).”
.
(4)
In section 37(4)(a) (provisions in which references to the landlord are to any of them) after sub-paragraph (iv) (inserted by section 39(5)(b)) insert—
.
“(v)
section 33D, and
.
(vi)
section 33E,”.
.
(5)
In section 3A of the Protection from Eviction Act 1977 (excluded tenancies and licences) after subsection (7C) insert—
.
“(7D)
A tenancy or licence is excluded if—
.
(a)
it is a residential tenancy agreement within the meaning of Chapter 1 of Part 3 of the Immigration Act 2014, and
.
(b)
the condition in section 33D(2) of that Act is met in relation to that agreement.”
.
(6)
In section 5 of the Housing Act 1988 (security of tenure)—
.
(a)
in subsection (1) omit the “or” at the end of paragraph (b) and at the end of paragraph (c) insert “, or
.
(d)
in the case of an assured tenancy—
.
(i)
which is a residential tenancy agreement within the meaning of Chapter 1 of Part 3 of the Immigration Act 2014, and
.
(ii)
in relation to which the condition in section 33D(2) of that Act is met,
.
giving a notice in accordance with that section,”, and
(b)
in subsection (2) omit the “or” at the end of paragraph (a) and at the end of paragraph (b) insert “, or
.
(c)
the giving of a notice under section 33D of the Immigration Act 2014,”.
.
(7)
The amendments made by subsections (5) and (6) apply in relation to a tenancy or (in the case of subsection (5)) a licence entered into before or after the coming into force of this section.
Colin Lunt says
November 29, 2016 at 3:37 PMWhen I last looked at the legislation, i understood it that there were two routes to end a tenancy that is in breach of the Right to Rent.; the landlord could simply give notice by virtue of the Home Office letter or apply to the Court for a possession order which would then allow any residents not barred from renting to ask the court for a variation of contract. The drafting does not make it exactly clear, but there is the 28 day notice (where all occupiers are unlawful occupiers) or as Richard notes, simply put ,*Other procedures for ending agreement’ in that the person should not be there so as long as no force is used against the occupiers, they can be evicted on the strength of the Home Office letter.
Any errors of course by the Home Office wrongly issuing a letter has not been considered. I suppose a TRO who might be able to prove that a Home Office letter was incorrect could prosecute for an illegal eviction or even reinstate?