The Immigration Bill has been published and has been causing much discussion. This article lists a few pointers.

Interpretation

“Residential tenancy agreement” is described in the bill as a tenancy which grants a right of occupation of premises for residential use and that agreement provides for payment of rent (even if not a market rent).

“Tenancy” is described as including any lease, licence, sub-lease or sub-tenancy and so includes lodgers

An agreement grants a right of occupation of premises “for residential use” if, under the agreement, one or more adults have the right to occupy the premises as their only or main residence. Therefore, the provisions don’t apply to company lets for example (where the company does not occupy).

Exclusions

The usual and expected exclusions apply as listed in schedule 3 of the bill including the following:

  • Social housing
  • Housing with local authority involvement
  • Care homes
  • Hospitals
  • Certain hostels
  • Mobile homes

Persons disqualified by immigration status

A person is disqualified from occupying premises under a residential tenancy agreement if the person is not a relevant national and either:-

  • requires leave to enter or remain in the UK but does not have it, or
  • their leave to enter or remain is subject to a condition preventing the person from occupying the premises.

Limited right to rent

A person has a “limited right to rent” if they have been granted leave to enter or remain in the UK for a limited period or if they are not a relevant national but entitled to enter or remain by virtue
of an enforceable EU right or of any provision made under the European Communities Act 1972.

Relevant national

A “relevant national” is

  • a British citizen,
  • a national of an EEA State other than the United Kingdom, or
  • a national of Switzerland.

Contraventions

A landlord must not authorise an adult to occupy premises under a residential tenancy agreement if the adult is disqualified as described above. This is described as a “contravention” and so failure to comply is not an offence.

There are two cases where a contravention might occur

Pre-grant contravention

There is a “pre-grant contravention” if a residential tenancy agreement is entered into that grants a right to occupy premises to—

  • a tenant who is disqualified, or
  • another adult named in the agreement who is disqualified, or
  • another adult not named in the agreement who is disqualified (this latter only applies if the landlord was reasonably aware)

Post-grant contravention

A contravention may occur if a residential tenancy agreement is entered into with an adult who has a limited right to rent, that adult then later becomes disqualified and they continue to occupy the premises after becoming disqualified.

Penalty notices

If there is a contravention (pre or post-grant) a penalty notice maybe issued. The amount of the penalty must not exceed £3,000 although a penalty notice may be one per occupying adult.

A notice may not be given if the disqualified adult is no longer occupying and hasn’t occupied for at least 12 months since the contravention.

Any penalty is recoverable as a regular county court judgment.

Excuses

To avoid paying the penalty contained in the notice, landlords and agents are given “excuses”.

Landlord excuses – pre-grant penalty notice

A landlord is excused from paying the penalty in relation to a pre-grant (where person disqualified) if the landlord shows that—

  • the prescribed requirements were complied with (see later) before the residential tenancy agreement was entered into, or
  • a person acting as the landlord’s agent is responsible for the contravention (see later).

Landlord excuses – post-grant penalty notice

A landlord is excused from paying the penalty regarding a post-grant contravention (where person had limited right to rent) if, when the occupiers limited period ended, the landlord complied with the prescribed requirements and if the landlord discovered the occupier is now disqualified notifies the Secretary of State without delay.

The landlord is also excused from paying the penalty if a person acting as the landlord’s agent is responsible for complying with above.

Agents responsible

An agent is responsible for complying with the prescribed requirements if (and only if):

  • the agent acts in the course of a business, and
  • under arrangements made with the landlord in writing, the agent is under an obligation to comply with the prescribed requirements on behalf of the landlord.

Agents excuses

Just like landlords have excuses to not pay the penalty, so too do agents.

Where the notice is given for a pre-grant contravention (person disqualified), the agent is excused from paying the penalty if the agent shows that the prescribed requirements were complied with before the tenancy agreement was entered into.

However, that excuse is not available if after finding out the person was disqualified, the agent then failed to notify the landlord so that the landlord wouldn’t bypass the agent and grant the tenancy him/herself. Therefore, if a person is found to be disqualified, it will be imperative (if the bill remains in its current form) to promptly notify the landlord of the findings and to ensure the landlord doesn’t then go onto grant the tenancy themselves.

Where the notice is in relation to a post-grant contravention (where occupier had limited time to rent) the excuse is the same as the landlord namely that the prescribed requirements must be complied with at the end of the period and if the person is then found to be disqualified, the agent must notify the Secretary of State.

Objections and appeals

The recipient may object to the Secretary of State against a penalty notice on any of the following grounds:

  • the recipient is not liable to the imposition of the penalty,
  • the recipient has an excuse, or
  • the amount of the penalty is too high.

In addition, the recipient may appeal to the county court (in England or Wales) against a penalty notice on the same grounds as above. An appeal must be made within 28 days. It’s unclear whether an objection to the Secretary of State must first have been made.

Code of practice

The Secretary of State will be required to produce a code of practice which would include (amongst other things):

  • Considerations when determining the amount of the penalty
  • The reasonable enquiries that a landlord should make to identify relevant occupiers
  • What constitutes a grant of a right of occupation and when a person is occupying premises as their “only or main residence”
  • Ensuring landlords and agents comply with the Equality Act 2010

The code of practice must be considered by the court if an appeal has been made.

Prescribed requirements

The excuses given above all relate to the landlord or agent having complied with the “prescribed requirements”. These prescribed requirements are to made by regulations and are not detailed at this stage but those regulations may require a landlord or agent to –

  • obtain a document of a prescribed description from relevant occupiers before or during the course of a residential tenancy agreement;
  • obtain one document of each of a number of prescribed descriptions from relevant occupiers before or during the course of a residential tenancy agreement;
  • take steps to verify, retain, copy or record the content of a document;
  • take such other steps before or during the course of a residential tenancy agreement as the order may specify.

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