Right to Rent? The Immigration Bill 2013

Landlords would not normally expect laws with far reaching consequences for their business detailed in Immigration legislation. Safiye Conner, specialist housing and social care solictor at Osbornes discusses how the Immigration Bill 2013 is set to change this position.

A draft of the Immigration Bill 2013 has been recently published in order to ‘ address public concern about immigration.’https://www.gov.uk/government/publications/immigration-bill-overarching-documents.

The Bill will introduce new measures which aim to:

• Reform the removals and appeals system, making it easier and quicker to remove those with no right to be here;
• End the abuse of Article 8 – the right to respect for private and family life;
• Prevent illegal immigrants accessing and abusing public services or the labour market.

These measures will include, among others, increased powers to stop and search for passports and the removal of avenues of appeal for immigration decision, including applications for bail from immigration detainees.

Measures to restrict access to services will include checks to be made when people apply for a driving licence, bank accounts, NHS treatment or try to rent residential property.

It is the last of these checks which concern us here, as they will have an impact on all landlords of residential property, both large companies and individuals who let only one property or a room in their house.

Chapter 1 of Part 3 of the Bill sections 15 to 32 inclusive along with Schedule 3 are the relevant sections.

Section 17 (1)20 states, A landlord must not authorise an adult to occupy premises under a residential tenancy agreement if the adult is disqualified as a result of their immigration status.

This applies to a landlord of a ‘residential tenancy agreement’ which includes section 15 (3) (a) any lease, licence, sub-lease or sub-tenancy, basically any agreement for occupation for the purposes of principle residence which includes payment of rent. So it will include, Assured Shorthold Tenancy Agreements and will apply to lodgers.

Those who are disqualified as a result of their immigration status is described in sections 16 and 17 with another category of those with a ‘limited right to rent’.

A contravention will only apply if reasonable enquiries were not made of the tenant before entering into the agreement as to the relevant occupiers, or, reasonable enquiries were so made and it was, or should have been, apparent from the enquiries that the adult in question was likely to be a relevant occupier(section 17 (5))

It should be noted that a contravention by a landlord will apply if the agreement grants a right of occupation to an adult ‘not named in the tenancy agreement’. So this may mean that the head landlord may be in contravention, even  if their tenant sublets the property.

A landlord will also be in contravention of someone with a limited right to rent, who had a right to rent when the tenancy agreement was entered into, subsequently has no right to rent and remains in occupation. Apparently Landlords will be required to know when their tenants right to rent will expire, to check whether it has been renewed and to take steps to evict the tenant if not.

A £3000 fine will apply to those in contravention of section 17, and if the property is let or managed by an agent it is they who will be in contravention of the act and subject to payment.

The Impact Assessment for the legislation states that these measures will:

Ensure that migrants who are not lawfully present in the UK cannot rent private sector housing and establish a settled life here, by creating a duty on landlords in the private rented housing sector to check the immigration status of prospective tenants before letting the property.

Housing is an important enabler of illegal migration. Requiring landlords to check residency status is intended to reduce the availability of accommodation for those intending to stay illegally in the UK. The policy is also intended to tackle the exploitation of migrants by rogue landlords.

However, it is not hard to see how these requirements will lead to complex scenarios and scare landlords off from renting to anyone who ‘appears they might have an immigration issue’. This is not just a problem of race , it will lead to anyone with a foreign accent encountering difficulties with renting properties.

Immigration law and the right to reside is extremely complicated. People can send their papers to the UKBA and Immigration Service and encounter long delays in having their applications processed and often lose their documents all together.   Those with a ‘limited right to reside’ include those who have a right to reside because they are ‘ entitled to enter or remain in the United Kingdom by virtue of an enforceable EU right or of any provision made under section 2(2) of the European Communities Act 1972.’ Not many landlords will be able to identify these enforceable EU rights, leading to contraventions or perhaps lengthy consultations with government ‘helplines’. It is not clear whether all migrants to the UK will get a ‘right to rent’ stamp in their passports making it clear to Landlords whether their potential tenants should be let to or not.

Landlords will not be able to rely on saving clauses written into tenancy agreements to exclude their liability for a contravention.   It adds an extra burden on landlords, not only those professional but also those who rent out their ex residence on a private basis, never mind those who take in lodgers.

The Impact Assessment states that in the private sector, landlords of privately rented accommodation and third sector immigration advisors will face additional costs,  and actually puts the cost for landlords of processing checks at £36.5 million over 10 years and additional charges made to landlords and tenants by lettings agencies at £18.2 million each, and the cost to businesses per year at £4.7 million.

A pilot scheme is planned for a London Borough in October 2014, although it is hard to see how its success will be measured,  and if the scheme is implemented how might it be policed and what might the cost be to the private rental market overall?

General opinion seems to find it unlikely that these measures will curtail rogue landlords who already operate outside the law, or to see how it will address the illegal housing market which is presumably already fairly underground.  Some might consider  that this ‘requirement to snoop’ is asking private landlords to do the job of the UK Border Agency for them and to carry the cost, whilst others might fret that the measures are taking immigration control in a sinister direction.

With the tabling of a New Private Members Bill for the Regulation of the Private Rented Sector 2013-14, Draft guidance for lettings professionals from the Office of Fair Trading produced and recommendations from the Commons Select Committee for a review of the Housing Health and Safety Rating System (HHSRS) housing standards regime, the promotion of a Tenants’ Charter, the  establishing of a model tenancy agreement and  the issue of further guidance on enforcement of standards and prosecutions for illegal eviction, being a private landlord just became rather more complicated.