They said it was coming and now it’s almost here. The new rules under the Immigration Act 2016. So what are these?
New rules on criminal liability
After 1 December, landlords who knowingly let to someone without a right to rent and agents who fail to notify their landlords that someone has a right to rent, will be vulnerable to criminal proceedings.
If found guilty the penalties are an unlimited fine or imprisonment for up to five years.
I don’t think honest landlords / agents who make genuine mistakes should worry about this too much. These rules are aimed at the low life criminal element who provide substandard accommodation for illegal immigrants at rip off prices.
I suspect also that the Home Office has better things to do than bring expensive prosecutions against anyone else. Most people breaching the rules will probably be dealt with via the existing penalty charges.
There will also be a defence to any criminal proceedings if you have taken steps to evict the offending tenant within a reasonable period of time from finding out that they do not have a right to rent – three months being considered a ‘reasonable time’.
So let’s have a look at the new rules on gaining possession.
New procedures to recover possession.
There are two of these:
The 28-day notice procedure
This is a prescribed form which you can serve on your tenant (or tenants if all of them are there without any right to rent), after getting notification from the Secretary of State (a copy of which you need to attach to the notice).
Once the 28 day notice period has expired, you can treat the notice as being an order of the High Court and use the High Court Sheriffs to evict them without further ado (the Sheriffs will be pleased at the prospect of this extra work).
However, as the occupiers are no longer protected under the Protection from Eviction Act 1977 you could arguably just change the locks one day when they are out – provided no force or violence is involved. (Although note that I need to check this point – see comments below)
The big issue with this procedure is that there does not seem to be any appeal procedure if the Secretary of State serves the notice in error where the occupiers DO have a right to rent. Or have I missed something?
A new Ground 7B
This is a new mandatory ground which has been added to Schedule 2 of the Housing Act 1988. This will probably be used mostly if the 28-day notice procedure is inappropriate for example if only one of joint tenants does not have a right to rent.
However, if this is the case, the Judge will have the option, at the hearing, instead of making a possession order, to order that the tenancy agreement be changed by removing the tenant without the right to rent. The tenancy agreement will otherwise remain unchanged and the other tenants will retain all their rights (apart from the fact that there are fewer of them liable for the rent).
New section 8 notice
As we have a new ground for possession, this means that the Section 8 notice prescribed form is being amended.
My Landlord Law forms have already been updated so Landlord Law members will be all right.
Tenants – after 1 December, if you are served a section 8 notice which does not refer to the Immigration Act 2016 at the top, it will be invalid and you will have a technical defence to any possession proceedings based on it.
Landlords and letting agents will no doubt be feeling very alarmed at these new rules, particularly the prospect of imprisonment for getting things wrong. However so long as they are careful they should be all right. As I say above, the Home Office have better things to do with their time than bring prosecutions against people making genuine errors.
I would suggest you introduce very strict procedures which include double checking that right to rent checks have been done before any keys are handed over to tenants. And if you find out that any of them do not have a right to rent – take action swifly.
Things are looking grim for obviously foreign looking and sounding tenants, with a right to rent, as they are going to find it increasingly hard to find somewhere to live.
It could also be difficult for British citizens who cannot afford to get a passport.
These are the times we are living in though. Be thankful if you are not at risk.