Monthly Archives: June 2016

The Right to Rent and The Immigration Act 2016

In this post Alice Richardson considers the Immigration Act 2016 as it relates to possession proceedings and eviction.

 

How did we get here?

The Immigration Act 2014 sought to prevent landlords and letting agents from renting residential property to people who are unlawfully present in the United Kingdom. It did so by prohibiting letting of residential property to those people who did not have a “right to rent” (s.21) (in general terms, those people not lawfully present); enforcement was by way of civil penalties on landlords and agents (ss.23, 25).

The provisions of the 2014 Act were, and are, controversial. Landlords are not border officials, immigration specialists or experts in identifying valid identity documents. In  Ryanair Ltd v. Secretary of State for Home Department [2016] EWFC B5 the judge held, albeit in a different statutory context, that airline staff cannot be expected to have the same level of knowledge as the UK Border Agency and could not be expected to spot certain forged documents. There are also practical issues with retaining personal data which arise under the Data Protection Act 1998.

Conducting the necessary checks to protect a landlord or agent from falling foul of the Act is potentially time-consuming and costly. Most troubling therefore is the potential for discrimination. In a study carried out by the Joint Council for the Welfare of Immigrants 27% of landlords said that they would be less likely to rent to someone with a “foreign-sounding name or accent”. The research also found that 42% of landlords were less likely to consider someone who does not have a British passport as a result of the Right to Rent requirements. All landlords must be aware that any such discrimination would, of course, be in breach of the provisions of the Equality Act 2010 (s.33, s.13 & s.19 EA 2010).

The 2016 Act

The Immigration Act 2016 received Royal Assent on 12th May 2016. Sections 39-42 concern residential tenancies and will come into force in England on a date to be appointed. The issues with the 2014 Act identified above apply equally, if not even more so, to the new provisions given their punitive effect.

 

s.39 of the 2016 Act amends the Immigration Act 2014 by inserting new ss.33A-C. These provisions introduce the criminal offence of “leasing premises” to someone who does not have a “right to rent”. A landlord, or agent, who is guilty of the offence is liable on conviction, on indictment, to imprisonment for a term of up to five years.  This aspect of the new Act is particularly controversial and has probably received the most press coverage.

However, this post is concerned primarily with the new methods for gaining possession introduced by the 2016 Act.

The “Notice Only” Ground

s.40 of the 2016 Act inserts ss.33D-E into the 2014 Act and s.33D introduces a new “notice only” ground for possession.

By s.33D a landlord may terminate a residential tenancy agreement where he or she has been notified by the Secretary of State that the occupier(s) of the premises is disqualified from renting the premises because of their immigration status. The landlord simply has to give notice in writing, in the prescribed form specifying the date on which the agreement will come to an end (s.33D(3)). That date must not be earlier than the period of 28 days beginning the date the notice is served (s.33D(4)). This method will only apply where all occupiers are disqualified.

Crucially the notice will be enforceable as if it were an order of the High Court (s.33D(7)) and therefore a landlord would, presumably, be able to instruct a High Court Enforcement Officer (“HCEO”) to enforce the notice.

However it is not even necessary for a landlord to instruct an HCEO/bailiff to carry out an eviction where s.33D(2) is met as s.3A Protection From Eviction Act 1977 is amended by s.33E(5) so as to exclude such a tenancy from protection.

This new method of obtaining possession is potentially extremely problematic and will no-doubt face legal challenged once implemented.  The first question is, how would one challenge the Secretary of State’s notice? There is no internal review or appeals process so the only potential way must be by Judicial Review. The next question is who brings the Judicial Review? It is unlikely that the landlord would have inclination or interest in doing so in which case it must be the tenant.

The difficulty then is that the tenant has only 28 days from the date the notice is served before she is evicted and may well be a very vulnerable individual. It seems that the tenant would have to issue a claim for Judicial Review, before the 28 days expire, naming the landlord as an interested party and seeking an injunction against the landlord to prevent him executing the eviction pending the outcome of the Judicial Review claim.

Legal aid should, in theory, be available for such a claim subject to the usual means-testing and merits criteria and the rules on payment in Judicial Review cases contained in the Civil Legal Aid (Remuneration) (Amendment) Regulations 2015. But given the well-known backlog in processing legal aid claims (and the #CCMSfail), there must be real concerns that people will not get funding in time to secure proper representation.

 

The Mandatory Ground

By ss.33E(1) it is an implied term of a residential tenancy agreement to which the subsection applies that the landlord may terminate the tenancy if the premises to which it relates are occupied by an adult who does not have the “right to rent”.

 

By s.33E(2) subsection (1) applies to any tenancy (or sub-tenancy) which 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.

S.33E(3) deals with Rent Act tenants (see Case 10A in Part 1 of Schedule 15 to the Rent Act 1977) and s.33E(4) refers to the new mandatory Ground 7B which is inserted into Part 1, Schedule 2 to the Housing Act 1988 by s.41 of the 2016 Act.

Ground 7B applies where an occupier is disqualified; unlike the “notice only” ground it is not necessary for all occupiers to be disqualified. The ground is satisfied where the Secretary of State has given notice in writing to the landlord which identifies that the tenant (or one or more of the joint tenants) or another adult who is occupying the dwelling-house is disqualified as a result of their immigration status from occupying the dwelling-house under the tenancy.

Ground 7B is a mandatory ground and therefore the Court will have no discretion to consider reasonableness.

 

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Stepchildren and succession after divorce

Stepchildren and succession after divorce

 

Annette Cafferkey and Alice Richardson ask whether the Housing Act 1985 (as it read pre-Localism Act 2011), permit a stepchild succeed to a secure tenancy on the divorce of his natural parent from his step-parent?

 

Succession to a secure tenancy

Under s.87 Housing Act 1985, pre-April 2012 Localism Act amendments,

“a person is qualified to succeed to a secure periodic tenancy if he occupied the dwelling house as his only or principal home at the time of the tenant’s death and either:

  1. i) He is the tenant’s spouse or civil partner or
  2. ii) He is another member of the tenant’s family and has resided with the tenant throughout the period of 12 months ending with the tenant’s death.

unless, in either case, the tenant was himself a successor, as defined in section 88”

By s.113(1)(b) of the Act, a person is a “member of the family” if he is, inter alia, that person’s parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece. By s.113(2)(c), the stepchild of a person is to be treated as his child.

A stepchild clearly therefore falls within the definition of “member of the family” and could succeed a tenancy from his step-parent.

 

“Former” stepchild

The question that arises is whether the child ceases to be a stepchild when his natural parent and step-parent divorce? Or, even if that were the case, could someone who was a stepchild succeed to the tenancy despite the divorce?

 

The definition of “family member” in s.113 of the 1985 Act is an exhaustive one: Michalak v Wandsworth LBC [2002] EWCA Civ 271; [2002] H.L.R. 39. In Sheffield City Council v Wall [2010] EWCA Civ 922; [2010] H.L.R. 47 the Court of Appeal held that a foster child does not fall within the definition, and any discrimination under Art.14 and Art.8 was justified as a deliberate policy choice made by Parliament as part of the balance involved in the allocation of social housing.

 

Given that the definition of family member under s.113 is exhaustive, the only way that a former stepchild could fall within the Act would be if, in law, he retained that status after his parent has divorced his step-parent.

 

Under some statutory schemes, provision is made for children if they have been treated as a “child of the family”:

 

  1. Under the Matrimonial Causes Act 1973 a step-parent may be required to provide financial provision for a child where the child has been treated as a “child of the family”, even if they have divorced the child’s parent. In determining whether such an order should be made, the court must take into account various factors including whether the step-parent has assumed any responsibility for the child’s maintenance: Snow v Snow [1972] Fam. 74; [1971] 3 W.L.R. 951.

 

  1. Under s.1(1)(d) Inheritance (Provision for Family and Dependants) Act 1975 any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family may apply to the court for an order under s.2 of that Act.

 

  • Under the Fatal Accidents Act 1976 s.3(f) any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage is classed as a “dependent” for the purposes of a claim for damages.

 

  1. Under s.1(2) and Part 2 of Schedule 1 of the Marriage Act 1949 a marriage between a person and a child of their former spouse/ the former spouse of a parent is void if the younger party was at any time before attaining the age of 18 a child of the family.

These various provisions, of course, do not answer question of whether the status of stepchild is retained following the divorce of his parent.

 

The case-law

There is scant authority in England and Wales that deals with the status of stepchildren or former stepchildren.

 

In Mander v O’Toole [1948] NZLR 909 the New Zealand Supreme Court held that the term “stepson”, in s.2 of the Deaths by Accident Compensation Act 1908, extended only to children who possessed that character by virtue of a marriage subsisting when the cause of action sought to be enforced under the statute arose. The court held at [912] that any suggestion that the step-parent/child relationship was retained after divorce;

“… implies that the consequential and sub-ordinate relationships remain unbroken whilst the link by which they were created is complete severed… if Mr West’s contention is correct, the stepson of the man to whom his mother is currently married might also be the stepson to any number of other men whom his mother may, during the life of the son, have married and divorced”.

 

That position is established in the US: Brotherhood of Locomotive Firemen and Enginemen v. Hogan (1934) 5 Fed. Supp. 598 (at 604) where the court held that:

“The wife in this case was the cause of the affinity which existed between Kennedy and her children. When the cause ceases, it should logically follow that the result ceases. No sound reason for any other view occurs to the Court.”

 

The same interpretation is taken in Australia. In Re Burt [1988] 1 Qd R 23 the Supreme Court of Queensland relied on Mander v O’Toole and Hogan and held at [32] that:

“The status of stepchild, as ordinarily understood, does not apply to a case in which the natural parent has been divorced from the step-parent, and probably does not survive the death of the natural parent”.

 

Conclusion

The defining feature of a step-parent/child relationship is that the step-parent is married to the natural parent. The status of stepchild does not endure when that marriage ends: it is not the equivalent to adoption. The reasoning in Mander and Hogan must surely be correct.

 

This could result in some seemingly harsh decisions where a step-child, despite the divorce, continues to consider his former step-parent to be his parent, perhaps having been brought up by him/her, the divorce only occurring when the child is an adult.

 

Whether the status is severed by the death of the natural parent, as suggested in Re Burt, appears to be more doubtful, where the marriage has endured “til death [they] did part”.

 

The statutory schemes outlined above make provision for these circumstance. But the Housing Act 1985, which, notably, was enacted after each of those schemes, makes no such provision.

 

It seems likely that a former stepchild could be a “status” for the purposes of Art.14. However, any challenge on the basis of discrimination under Art.14 and Art.8 may be difficult, below the Supreme Court in any event, unless Sheffield City Council v Wall could be distinguished.

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