Primarily, the Immigration Act 2016 amends the Immigration Act 2014 which is already in force in England.
The below information currently only applies to England but there is power to extend to Wales.
It is currently an offence for a landlord to authorise occupation of premises by an adult who does not have a right to rent. The penalty is currently a civil penalty by way of a fine.
Section 39 Immigration Act 2016 inserts a new section 33A into the 2014 Act which makes it a criminal offence for a landlord if:
- the premises are occupied by an adult who is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement, and
the landlord knows or has reasonable cause to believe that the premises are occupied by an adult who is disqualified as a result of their immigration status.
It will be a defence for any person charged with the above offence where:
- the person has taken reasonable steps to terminate the tenancy, and
- the person has taken such steps within a reasonable period beginning with the time when the person first knew or had reasonable cause to believe that the premises were occupied by the adult occupiers.
Guidance is to be issued which will assist with deciding what are reasonable steps to terminate the residential tenancy agreement. This guidance is currently in draft form.
An agent commits an offence if the agent:
- knew or had reasonable cause to believe that the landlord would contravene the right to rent provisions by entering into the residential tenancy agreement in question,
- had sufficient opportunity to notify the landlord of that fact before the landlord entered into the agreement, but
- did not do so.
The penalties for a guilty person are:
- on conviction on indictment, to imprisonment for a term not exceeding five years, to a fine or to both;
- on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine or to both.
Where All occupiers have no right to rent
Where all the adult occupiers of a residential tenancy do not have a right to rent and the Secretary of State serves a notice on the landlord identifying all those occupiers, the landlord may serve a notice in a prescribed form on all the occupiers giving 28 days to end the tenancy.
The notice may be given:
- by delivering it to the tenant or tenants,
- by leaving it at the premises,
- by sending it by post to the tenant or tenants at the address of the premises, or
- in any other prescribed manner.
The notice is enforceable as if it were an order of the High Court.
Section 3A of the Protection from Eviction Act 1977 (excluded tenancies and licences) is amended to say that where a notice has been served by the Secretary of State identifying all occupiers as not having a right to rent as described above, the tenancy will be an excluded tenancy or licence.
SOME or all occupiers have no right to rent
A new ground 7B is inserted into the Housing Act 1988 by section 41 Immigration Act 2016.
This will allow a landlord of an assured or assured shorthold tenancy to serve a section 8 notice (normally used for rent arrears) using ground 7B. This applies if the Secretary of State has given a notice in writing to the landlord which identifies the tenant or, in the case of joint tenants, one or more of them, or one or more other persons aged 18 or over who are occupying the dwelling-house, as a person or persons who do not have a right to rent.
The person does not have a right to rent if the person:
- requires leave to enter or remain in the United Kingdom but does not have it, or
- leave to enter or remain in the United Kingdom is subject to a condition preventing them from occupying the dwelling-house.
But, the person is to be treated as having a right to rent if the Secretary of State has granted them permission for the purposes of ground 7B to occupy under the tenancy.
Where an application to the court for a possession order is made using ground 7B and:
- Ground 7B is established,
- no other ground in that Schedule is established, or one or more grounds in Part 2 of that Schedule are established but it is not reasonable to make an order for possession on that ground or those grounds,
- the tenancy is a joint tenancy, and
- one or more of the tenants have a right to rent* (so are NOT disqualified from occupying due to their immigration status).
The court may, instead of making an order for possession, order that the tenant’s interest under the tenancy is to be transferred so that it is held by only those persons who do have a right to rent.
The order does not operate to create a new tenancy and if the tenancy is a fixed term tenancy, the term comes to an end at the same time as if the order had not been made.
A similar provision is also added into the Rent Act 1977 for a protected or statutory tenancy under that Act.
For any tenancy that is neither assured, assured shorthold nor under the Rent Act 1977, an implied term is inserted into the tenancy by section 33E Immigration Act 2014 that:
the landlord may terminate the tenancy if the premises to which it relates are occupied by an adult who is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement.
The term is implied into all tenancies (not assured shorthold etc.) whether they were entered into before or after 1 December 2016 (commencement of section 41 Immigration Act 2016).
We have in-depth guidance on establishing whether a tenant has a right to rent and that guidance has been updated with these new provisions.