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Extension of the “right to rent”: Immigration Act 2016

16 Feb 2017

The Immigration Act 2014 (IA 2014) imposed for the first time obligations on private landlords to check that prospective tenants (and in some cases, current tenants) have a lawful right to live in the UK. Those provisions came into effect on 1st February 2016 and landlords face hefty fines if they fail to carry out the right checks.

The aims of the IA 2014 provisions are laudable, to restrict those with no lawful right to reside in the UK access to the private rented sector. However, the onus falls squarely on landlords to monitor and patrol the immigration status of their tenants and prospective tenants, with no recourse in the event a tenant’s right to reside in the UK comes to an end.

No sooner had the IA 2014 taken hold, the Immigration Act 2016 (IA 2016) came into force. This introduced further changes as part of the government’s initiative to make the UK a hostile environment for migrants who are not lawfully resident in the UK. The new provisions came into force on 1 December 2016.

New criminal offence

The IA 2016 goes one step further, and makes it a criminal offence if a landlord knows, or has reasonable cause to believe, that premises are occupied under a residential tenancy agreement by an adult with no right to reside in the UK. A similar offence is created for agents. The offences may be punishable by up to five years' imprisonment.

It is a defence if the landlord has taken reasonable steps, within a reasonable period of time after discovering or having cause to believe that the tenant was so disqualified, to terminate the tenancy.

New powers to recover possession

Unlike the IA 2014, the IA 2016 is set to make it easier for landlords to recover possession where a tenant occupies the premises with no lawful right to reside in the UK:-

  • An implied term is created for residential tenancy agreements, that the landlord may terminate the tenancy if the premises are occupied by an adult with no right to reside in the UK. A new mandatory ground 7B is introduced into Schedule 2 of the Housing Act 1988 and there is a new form of Section 8 Notice, for assured and assured shorthold tenancy. Two weeks’ notice is required before possession proceedings can be commenced. Similar provisions are introduced for Rent Act tenancies;
  • A landlord may also give notice in the prescribed form to terminate a residential tenancy agreement where they have received notice from the Home Office that people living there have no right to live in the UK. The landlord’s notice is treated as a notice to quit and is enforceable as if it were an order of the High Court. This means that no possession order is required and High Court enforcement officers can effect an eviction. The process is likely to be far quicker and cheaper than pursuing possession through the Courts.

What next?

The new powers for possession are undoubtedly welcomed by landlords who find themselves with tenants who are not in the UK legally. Home Office guidance has made it very clear that landlords should not discriminate against prospective tenants on grounds of nationality (or risk falling foul of the Equality Act 2010). However, concerns have been raised about prejudice that migrants in the UK may face in light of the criminal and financial consequences for landlords who fail to carry out the correct checks and fail to keep up with their tenants’ immigration status. Further Home Office guidance is expected to be issued following the introduction of the IA 2016, but in the meantime it remains to be seen how effective both the IA 2014 and IA 2016 will be in tackling illegal immigration in the UK.

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