The Right to Rent

Criminal sanctions and new routes to possession introduced

In my January 2016 Right to Rent article, I discussed the obligations landlords of private residential properties would be subject to from 1 February 2016 under the Immigration Act 2014. By way of brief reminder, all private landlords have since 1 February 2016 been required to carry out checks upon all adult occupiers for whom the property being let is their primary residence so as to ensure that each adult occupier has the "right to rent" the property in the UK, that is, they have a right to reside in the UK.

On 1 December 2016, section 39 - 41 Immigration Act 2016 came into force. Residential landlords, read on!

Section 39 - Landlord now face criminal sanctions

Prior to 1 December 2016, if a private landlord failed to fulfil their obligations to investigate the immigration status of a proposed occupier, the Landlord faced civil penalties being imposed upon them.

On 1 December 2016, section 39 of the Immigration Act  2016 came into force, pursuant to which a landlord now commits a criminal offence if the property is occupied by

  • an adult who is unlawfully living in the UK; and
  • the landlord knows or has reasonable cause to believe that the property was being occupied by someone who is unlawfully living in the UK.

Landlords (or their agents if a landlord passes the checking obligations onto a letting agent) who fail to properly check the immigration status of adult occupiers of their property not only face civil penalties, but now also face:-

  • up to 5 years in prison; 
  • an unlimited fine; or 
  • both

It is worth highlighting here again that landlords need to ensure that they carry our checks not only on the tenants, but on all adult occupiers of the property for whom the property is their primary place of residence.  Checks must be carried out not only upon potential occupiers of the property before a tenancy commences, but also throughout the period of the tenancy to ensure that each adult occupier continues to have a right to rent. 

If a landlord discovers that an adult occupier does not have a right to rent, either prior to or during the tenancy, they should report this to the Home Office as soon as possible (there is an online form available for this purpose) and, if the person without a right to rent is a tenant, promptly take steps to terminate the tenancy.  

Recovering possession   

When the Right to Rent Scheme was first introduced, many landlords expressed concern as to how they could recover possession of their properties in the event that a tenant was found not to have a right to rent. That concern has now being addressed, albeit not in an entirely satisfactory manner.

Section 40 - "Notice only" route to repossession

Section 40 Immigration Act 2016 introduces a process whereby a landlord is able to recover possession of a property without the need to issue possession proceedings.

Where a landlord has been notified by the Secretary of State that the occupier/all of the occupiers of the landlord's property has no right to rent due to their immigration status, the landlord is able to terminate the tenancy relying upon that notice.  The landlord need simply serve a prescribed notice  - the prescribed form can be found in The Immigration (Residential Accommodation) (Termination of Residential Tenancy Agreements) (Guidance etc.) Regulations 2016  - which informs the tenant that the tenancy will end of a specified date, that date to be no earlier than 28 days after the date the notice is served. 

On the wording of the legislation, the notice served by the landlord is enforceable as if it were an order of the High Court. Consequently, if the tenants do not vacate the property upon the expiry of the notice, the landlord can, if they wish, proceed to instruct a High Court Enforcement Officer to enforce the notice without there being any need to obtain a possession order.

One surprising aspect of the recently introduced legislation is that where the circumstances are such that a landlord is able to rely upon this procedure, the provisions of the Protection of Eviction Act 1977 which prevent a landlord from simply changing the locks to a property no longer apply to the tenancy in question. A landlord could, therefore, decide not to instruct a High Court Enforcement Officer and instead, on the expiry of the notice, simply change the locks.

The legislation does not provide any appeal procedure in respect of any notice served by the Secretary of State. It remains to be seen, therefore, as to what will happen when, as is inevitable, a notice is issued to a Landlord by the Secretary of State which mistakenly states that the occupier/all of the occupiers of a property have no right to reside in the UK, which the landlord then acts upon.

Section 41 - Ground 7B inserted into section 8 notice  

The Assured Tenancies & Agricultural Occupancies (Forms)(England)(Amendment No.2) Regulation 2016 added a new ground for possession  - Ground 7B - to the prescribed form which Landlords must use when seeking to recover possession of a residential property let under an assured tenancy under Section 8 of the Housing Act 1988. 

In order to satisfy Ground 7B, a landlord must satisfy 2 conditions, those being

1. The Secretary of State has given a notice in writing to the landlord which identifies that

(a) the tenant or, in the case of joint tenants, one or more of them, or

(b) one or more other persons aged 18 or over who are occupying the dwelling-house,

is a person that, as a result of their immigration status, is disqualified from occupying the property under a tenancy i.e. has no right to rent

2. The person or persons named in the notice received from the Secretary of State

 (a) falls paragraph (a) or (b) of condition 1 as set out above; and

 (b) as a result of their immigration status, is disqualified from occupying the property.

It is anticipated that the new ground will be used in those instances where the "no proceedings" route introduced by Section 40 is not available to a landlord due to not all of the occupiers of the property being disqualified from occupying a property due to their immigration status.

Ground 7B is stated to be a mandatory ground for possession. Landlords could, therefore, be forgiven for believing that if they satisfy the Court that Ground 7B has been made out, the Court will in all instances grant a possession order. However, that is not the case. Instead, where there are joint tenants and one or more of the tenants is not disqualified from occupying the property, the Court has the power to order that the tenancy is transferred into the non-disqualified joint tenant's name.

The introduction of Ground 7B does introduce a trap that landlords may not identify until it is too late. All notices served after 1 December 2016 must refer to the Immigration Act 2016. If it does not, the notice will not be in the prescribed form, which will provide a tenant with a technical defence to any possession claim based upon that notice, irrespective of whether the landlord is relying upon the immigration status of the tenant as a ground upon which to recover possession. 

If you have any queries arising from this article, would like to suggest a topic for a future article or wish to discuss a contentious property issue, contact Chris Drinkall, Head of Rollits' Property Dispute Resolution Team on 01482 337367 or christopher.drinkall@rollits.com

Posted on: 13/01/2017

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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