Adrian Berry
Barrister at Garden Court Chambers
A shorter version of this article was first published for Legal Action magazine in the UK; thereafter expanded for his blog, Cosmopolis: Migration, Citizenship, and Free Movement
The Hostile Environment
The right to rent scheme is part of a UK government initiative, pursued through legislation and administrative action, to make the United Kingdom a hostile environment for undocumented migrants not lawfully resident. Other parts of the initiative concern access to bank accounts and driving licences by reference to immigration status.
Taken together with existing measures that bear down on working without permission and that prohibit access to social assistance, the effect of the initiative is to drive undocumented migrants to the shadow land where they are made homeless or are forced to live in hidden and insecure accommodation, they work for abusive employers, and they live hand-to-mouth from the cash they are able to hold.
In the result, undocumented migrants may walk down the same streets as British citizens and others lawfully resident, live in the same neighbourhoods, and work in the same buildings (perhaps on nightshifts cleaning offices and shops) but the world they inhabit exists in parallel and they disappear from public view. By excluding them from participation in society in this hostile way, the government hopes to put pressure on them to leave the UK; however the result in many cases will be that the government simply ceases to know where they are or what they are do. Out of sight and out of mind, perhaps. But not out of the UK.
The Right to Rent Scheme
The Right to Rent Scheme compels landlords to act like immigration officers and check the status of adult occupiers of residential premises, see sections 20-37 of the Immigration Act 2014 (‘the 2014 Act’). The sanction for permitting an adult, disqualified on immigration grounds, to occupy accommodation pursuant to a residential tenancy agreement, is the imposition of a civil penalty. By establishing that a migrant’s documents were checked and copied in accordance with prescribed requirements (a process that requires the landlord to confirm a migrant’s identity as well as her right to rent), a landlord may establish a statutory excuse so that she does not have to pay the penalty.
Under the scheme a landlord needs to check and copy the documents of all occupiers of accommodation provided under a residential tenancy agreement. Thus British citizens, like others, have to show their ‘papers’. In effect this means that a British citizen must present her passport ( a document the purpose of which is to facilitate foreign travel) and use it as an ID card to prove that she is authorised to occupy residential accommodation.
The Machinery of the Scheme
The scheme governs residential tenancy agreements that grant a right of occupation to one or more adults (as their only or main residence) and that make provision for payment of rent. Both tenancies and licences fall within the scheme. In practice the scheme applies to private sector residential tenancy agreements; Schedule 3 of the 2014 Act makes provision for classes of agreements that are excluded from the scheme and embraces residential tenancy agreements conferred in the public sector or in performance of a public function.
British citizens, nationals of other European Economic Area (EEA) states, and Swiss nationals need only prove their nationality to the satisfaction of a landlord to establish that they qualify to occupy accommodation; nationals of other countries must prove that they have a right to rent, see section 21(5) of the 2014 Act. If a person requires leave to enter or remain in the UK and does not have it, or if that person’s leave is subject to a condition that prevents her occupation of the premises, then she does not have a right to rent. As regards persons who lack a right to rent, the Home Secretary has the power to grant permission to occupy premises.
Where a person has time-limited leave to enter or remain, or that person is a non-EEA national family member exercising an EU right of residence, she is said to have a limited right to rent; a person who is lawfully present in the UK without restriction as to time enjoys – by necessary implication- an unbound right to rent. Landlords are prohibited from authorising an adult to occupy premises under a residential tenancy agreement where that person is disqualified as a result of her immigration status.
Landlords must check a person’s immigration and nationality documents prior to concluding a residential tenancy agreement, see the Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order 2014 (SI 2874/2014) and Immigration (Residential Accommodation) (Prescribed Cases) Order 2014 (SI 2873/2014); see also the Code of practice on illegal immigrants and private rented accommodation and the Code of Practice for Landlords: Avoiding unlawful discrimination when conducting ‘right to rent’ checks in the private rented residential sector.
The prohibition on granting a right of occupation by way of a residential tenancy agreement to disqualified persons, extends to (i) tenants, (ii) other adults named in the agreement, and (iii) other adults not so named (where reasonable enquires as to relevant occupiers were not made, or where such enquires were made and it ought to have been apparent that the person was a relevant occupier).
The prohibition on granting a right of occupation extends to the situation where a residential tenancy agreement grants a right of occupation to an adult with a limited right to rent and that that adult later becomes disqualified as a result of her immigration status but continues to occupy the premises.
Where a family with minor children occupies accommodation pursuant to a residential tenancy agreement, the children are not regulated by the scheme. However, a landlord may refuse an adult who is a disqualified person permission to occupy the accommodation for fear of a civil penalty or for fear of prosecution for the commission of a criminal offence; in the result a family may be forced to break up (as the adult concerned it refused permission to occupy) and a child may lose a parent or carer from her home. Such an outcome is inherent in the design of the scheme. That it may operate in this way ought to be a source of shame for the Ministers, Home Office officials and politicians responsible for its introduction.
Where a disqualified person occupies premises under a residential tenancy agreement, the Home Secretary may give the responsible landlord a notice requiring payment of a penalty (up to £3,000 per person).
In cases where immigration status was in issue prior to the grant of residential tenancy agreement, the principal basis upon which a landlord may establish a statutory excuse and avoid the penalty is where she complied with the prescribed requirements for checking and keeping copies of the person’s immigration and nationality documents, see section 24(2)(a) of the 2014 Act.
In cases where a residential tenancy agreement is in effect and an adult with a limited right to rent who is occupying the premises becomes disqualified from so doing (for example where his or her time-bound leave to remain runs out), a statutory excuse to avoid the penalty is established where the Home Secretary is notified of the position as soon as reasonably practicable, see section 24(6)(a) of the 2014 Act.
Where an agent acts for a landlord by agreement and has assumed responsibility for right to rent checks, provision is made to distribute responsibility to that agent, see section 25(2) of the 2014 Act. The Home Secretary may give a penalty notice to an agent. As is the case for a landlord, an agent may establish a statutory excuse to avoid a penalty.
Penalty notices must contain prescribed information giving reasons for the penalty, stating the amount to be paid, and giving information about the procedure for challenge. On receipt of such a notice there is an administrative review procedure whereby a landlord or agent may object that she is not liable to the imposition of a penalty, has established a statutory excuse, or ought not to pay that amount. On consideration of such an objection, the Home Secretary may cancel, reduce or increase the penalty, or she may determine to take no action. A landlord or agent whose objection is not sustained may, thereafter, appeal to the county court seeking the cancellation or reduction of the penalty on the same grounds. A penalty lawfully imposed is recoverable as if it were payable under court order.
Innovations in the Immigration Act 2016
The Immigration Act 2016 (‘the 2016 Act’) adds further provisions to the right to rent scheme. It is hard to discern the basis for the 2016 Act innovations: the scheme was in its infancy when they were enacted, it had begun to operate in certain local authorities in the West Midlands from 1 December 2014 and was extended nationwide on 1 February 2016. At the time the Bill that became the 2016 Act was making its way through Parliament, it was too soon to tell whether or not the scheme operated effectively in furtherance of its objectives. Nonetheless, further provisions were made.
The 2016 Act introduces into the 2014 Act a number of provisions to make the scheme even more muscular. The new provisions concern the commission of criminal offences and the basis upon which a landlord may recover possession of the accommodation. Further, related, changes are made to the Protection from Eviction Act 1977, the Rent Act 1977 and the Housing Act 1988. The provisions are in force from 1 December 2016 and need to be read together with the Immigration (Residential Accommodation) (Termination of Residential Tenancy Agreements) (Guidance etc) Regulations 2016.
New Criminal Offences
A criminal offence is created where a landlord knows or has reasonable cause to believe that premises are occupied under a residential tenancy agreement by an adult disqualified as a result of her immigration status, see section 33A of the 2014 Act. A similar offence is created in respect of agents, see section 33B of the 2014 Act. The offences may be tried summarily or on indictment. In the latter case a term of imprisonment of up to five years may be imposed, see section 33C of the 2014 Act.
Recovery of Possession
In addition, by the 2016 Act further regulation is imposed upon tenancy agreements, so that landlords may recover possession more readily where an adult who is disqualified on immigration grounds, occupies premises, see section 33D of the 2014 Act. This erodes the protection afforded to tenants and other occupiers.
Where all the occupiers of premises are disqualified on immigration grounds, a landlord may terminate the residential tenancy agreement where she has received notice in writing from the Home Secretary identifying the occupier or occupiers and stating that they are disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement, see section 33D(1)–(2) of the 2014 Act. Thereafter the landlord may terminate the residential tenancy agreement by giving notice in the prescribed form, see section 33D(3) of the 2014 Act. Such a notice is to be treated as a notice to quit and is enforceable as if it were an order of the High Court, see section 33D(6)–(7) of the 2014 Act.
Further, where the Home Secretary has given notice to the landlord stating that all the occupiers are disqualified from occupation as a result of their immigration status, and the residential tenancy agreement has been terminated following the landlord’s service of notice on the tenant, there is no requirement to obtain a court order to recover possession as the tenancy or licence is treated as excluded from the provision for protection from eviction, see section 3A(7D) of the Protection From Eviction Act 1977, as inserted by section 40(5) of 2016 Act. Whether a landlord may recover the accommodation by peaceable re-entry or whether High Court Enforcement Officers must be deployed is unclear. If a landlord may take action without Court assistance, there is the risk that some evictions may be unlawful.
In addition, in the case of an assured tenancy under the Housing Act 1988 (‘the 1988 Act’), where the Home Secretary has given notice to the landlord stating that all the occupiers are disqualified from occupation as a result of their immigration status, the tenancy is brought to an end following service by the landlord of a notice (in the prescribed form) on the tenant terminating the residential tenancy agreement, see section 5(1)(d) of the 1988 Act, inserted by section 40(6) of the 2016 Act. Thereafter, once again, the landlord may recover possession without a court order.
The 2016 Act also makes provision for other procedures for ending a residential tenancy agreement. As a result, it is an implied term of a residential tenancy agreement 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 her immigration status from occupying premises, see section 33E of the 2014 Act. This provision applies to a residential tenancy agreement relating to premises in England if it is a tenancy or sub-tenancy or an agreement for the same and it is not a protected or statutory tenancy under the Rent Act 1977 or an assured tenancy under the 1988 Act.
As regards a residential tenancy agreement which is a protected or statutory tenancy, and where a tenant or occupier is disqualified as a result of their immigration status from occupying premises, Case 10A has been introduced into Part 1 (Cases in Which Court May Order Possession) of Schedule 15 to the Rent Act 1977, to facilitate a landlord’s recovery of possession.
As regards a residential tenancy agreement which is an assured tenancy where a tenant or occupier is disqualified as a result of their immigration status from occupying premises, Ground 7B has been introduced into Part 1 (Grounds on which Court must order possession) of Schedule 2 to the 1988 Act, to facilitate a landlord’s recovery of possession.
In the result, landlords are given great powers to recover possession; tenants and occupiers disqualified from occupying premises are vulnerable to the use of these powers and enjoy less protection that British citizens and other persons lawfully resident.
The Hostile Environment revisited
Poor naked wretches, wheresoe’er you are,
That bide the pelting of this pitiless storm,
How shall your houseless heads and unfed sides,
Your looped and windowed raggedness, defend you
From seasons such as these?
– Lear in King Lear, Act 3, Sc 4.
It is simply too early to tell whether the right to rent scheme operates effectively. It forms part of a government initiative to create a hostile environment for undocumented migrants. If not rendered homeless by the scheme, at the very least these persons will be unable to secure accommodation from law-abiding landlords and will be left at the mercy of unscrupulous landlords who are prepared to provide poor-quality accommodation, to charge over the odds, and to exploit them as occupiers who have no-where else to turn.
As a way of manufacturing danger, exploitation and risk for people living in the UK, the hostile environment initiative may well succeed. However, the pressure so placed on people to secure a roof over their heads, as with other elements of the initiative such as restricted access to bank accounts and driving licences, is unlikely to compel them to leave the UK. People who have known the hardship of irregular migration have experienced greater adversity and have a resourcefulness that may surprise the settled population. Far more likely is the growth of the shadow world where people unknown to the law live wretched lives in hidden rooms, working odd-jobs for minimal pay, in a society in parallel to the one that surrounds them.
