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  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.