Compliance update: Immigration Act 2016

With effect from the 1st December 2016, amendments to the Immigration act 2014 were made through the Immigration Act 2016.   

The soundbite change was revising the penalty for non-compliance from a civil penalty to a criminal penalty with larger fines and a custodial sentence being available to culprits.

In reality, that should not really affect the 99% of landlords and agents in the market but subtle changes to the eviction of those occupiers without the ‘right to rent’ may have more of an effect. 

The changes place an emphasis upon the landlord to commence possession action within a reasonable time period with the type of action required being different depending on the following two situations:

1.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 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,
• leaving it at the premises,
• 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.

2.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 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.

If you would like to know more, Training for Professionals have recently recorded a webinar on the subject. More details of which you can find on our website.

*Darrel Kwong is lettings consultant at Training for Professionals