Checking tenants’ immigration status
Last year, a ‘right to rent’ scheme was piloted with landlords in the West Midlands. Under the scheme, landlords were required to check the immigration status of people to whom they were proposing to rent out residential accommodation. Clearly, the idea was designed as part of the government’s endeavours to control illegal immigration – and in some respects this is not so very different from the kind of check that employers have to make.
While it was received with varying degrees of enthusiasm, the government took sufficient encouragement to announce that it would be rolling out the scheme to the country at large, with effect from the beginning of February 2016.
In addition to this, however, and the Immigration Bill contains provisions further tightening the law on renting to illegal immigrants.
Part of this would give landlords the power to evict –without a court order – tenants whose immigration status means that they don’t have the right to rent. But we might wonder how much of a ‘power’ this is: since knowingly letting to people who don’t have the right to rent will be a criminal offence under the Act, it will be – effectively – a duty for a landlord to give notice to terminate the tenancy of someone unlawfully in occupation.
‘Right to rent’ v human rights?
But now the lawfulness of this is being questioned by the Equality and Human Rights Commission (EHRC). The concern is that it might result in families being made homeless, which could amount to a breach of human rights.
The powers created by the Bill will work in one of two ways.
- If the tenant (or all of them, if there is more than one) has no right to rent on grounds of their immigration status, the landlord can serve notice immediately, with 28 days’ notice to leave.
- More contentiously, a new ground will be added for serving section 8’ notices. These are the notices that give the courts power to order repossession, and in some cases if the ground is proved, repossession is mandatory. The new ground will be a mandatory one, making it obligatory for a court to order repossession if any of the tenants is certified as unlawfully renting. In other words, even tenants who have the right to rent can be evicted if one of the other tenants is not there lawfully.
The EHRC says that the parts of the Bill which affect residential tenancies could lead to problems with a range of the UK’s human rights obligations, including the right to a fair trial, the right to a private, home and family life, and the protection of property. They also mention the prohibition of inhuman and degrading treatment, which could arise from people being left destitute and homeless and unable to support themselves: we’ve seen case law that gives strength to this view. And where children are involved, yet more international obligations are involved.
So where does this leave us?
Although at Simplify the Law we have a fair record of anticipating the likely outcome, we can’t yet say for certain. The Bill is still in Parliament, but there are two points to note. First, the Home Secretary has made a declaration that she believes the Bill is compatible with the Human Rights Convention.
Secondly (and on the other hand), if the Bill were passed in its current form and the EHRC subsequently decided to mount a challenge, the High Court would have power to declare provisions incompatible with the Convention. The courts have shown in the past that they are prepared to take that step. But that couldn’t arise until after the Bill became an Act, and a case needed to be decided under its provisions. This debate is not yet over – and indeed it may not be for some time to come.
Our best guess is that the Immigration Bill will go through without significant amendment to this part of it, and that these provisions will have effect from the beginning of February next year.
So for now, it’s prudent to note that the general tendency at the moment is to increase the landlords’ responsibility for the tenants they let premises to. Whether we agree or disagree with the measures being introduced, or the ends they are intended to achieve, the sanctions threatened against landlords who don’t observe the rules (if they become law) will leave them little choice.
When it becomes clear what the actual obligations of the landlord are going to be, we’ll let you know.