Immigration Act 2014 – impact on housing law
The Immigration Act 2014
received Royal Assent on
May 14, 2014 and it contains significant new developments in housing law in
Part.3, Chapter.1.
S.21 introduces the concept of the
person who is, by virtue of his immigration status, “disqualified” from
“occupying premises under a residential tenancy.” A “residential tenancy” is
any lease, licence, sub-lease or sub-licence (including an agreement for any
such thing) which gives a right of occupation of premises (land, buildings,
moveable structure, vehicle or vessel) for residential use (as an only or main
residence) and which provides for payment of a rent (whether market or not) (s.37).
The
disqualifed persons are:
(a) those
who are not “relevant nationals” (i.e. British nationals, EEA
nationals or Swiss nationals – ss.21(1),(5)); and,
(b) who
do not have a “right to rent” (they do not have a right to rent if they
require leave to enter or remain in the UK but do not have such leave or their
right to enter or remain in the UK is subject to a condition preventing them
from occupying the premises – ss.21(1),(2)).
A landlord
must not authorise a disqualified adult to “occupy premises under a residential
tenancy agreement”. Authorisation is given if a tenancy agreement is granted to
either a disqualified adult or if a disqualified adult is named on the
agreement (s.22(3),(4)). Further, subject to a “reasonable enquiries”
provision (s.22(6)), authorisation is given if an unnamed adult who is
disqualified is permitted to occupy the premises .
A landlord
is also taken to authorise an unlawful occupation if a tenancy agreement is
granted to someone with a ‘limited right to rent’ who later becomes
disqualified (i.e. their leave to remain in the UK expires) and who remains in
occupation after becoming disqualified (s.22(5)).
Penalty
fines
Contravention
results in a requirement to pay a penalty of up to £3,000, as the Secretary of
State considers appropriate (s.23). There are two excuses open to
landlords. The first is to show that they complied with prescribed requirements
(yet to be prescribed). The second is to show that an agent was responsible for
the breach (s.24(2)). Similar provisions are made for fining agents (s.25)
and for excuses by agents (s.26). A person given such a penalty may give
notice of objection to the Secretary of State (s.29 – effectively an
internal appeal) and then may appeal (by way of re-hearing) to the county court
(s.30).
Codes
of practice
The
Secretary of State must publish a code of practice, setting out how fines will
be calculated and, more generally, the approach that the Secretary of State
will take to enforcement (s.32). There must also be a code of practice
to help landlords and agents ensure they comply with the law without breaking,
for example, the Equality Act 2010 (s.33).
Exceptions
Schedule
3 has a list of
agreements which are not caught by this provision. They include social housing
provided under Pt.2, 1985 Act (secure/introductory tenancies etc), Pts. 6 and
7, Housing Act 1996 (allocations and homelessness).
Care homes,
hospitals, hospices and other healthcare related accommodation is also excluded
as are hostels and refuges and accommodation provided under the Immigration and
Asylum Act 1999.
Mobile
homes under the Mobile Homes Act 1983 are excluded.
Tied
accommodation and student accommodation are excluded as are long leases.
