- Migrants' use of the private rented sector
- Helping people find accommodation
- Who is there to help
- Common problems with housing benefit
- Homelessness and use of the private rented sector
- 'Right to Rent' checks - who is affected?
- How do landlords check residency and immigration status?
- Advising migrants who might be affected by 'Right to Rent' checks
- Advising tenants who are affected by the Immigration Act 2016 tenancy changes
This section deals with some of the common issues faced by migrants housed in the private rented sector. The page on the law and the private rented sector provides detail on: types of occupation agreements, security of tenure, financial arrangements (e.g. deposits and rents), property conditions including overcrowding, shared houses, and harassment and illegal eviction.
In Great Britain over five million households, some 19%, live in private rented housing – somewhat more than in social housing. But 38% of those born abroad are private tenants, so migrants are twice as likely to rent privately than the population as a whole. And of those who arrived in the last five years, 80% are private tenants. You can get more information about migrants’ housing from a Migration Observatory briefing and their use of the private rented sector in this Joseph Rowntree Foundation report, which says:
‘There are … significant variations between different groups in their use of the sector. For some migrants – such as those awaiting an asylum decision or refugees who have had their status confirmed – standards, conditions and a hoped-for transition to more secure accommodation are critical issues. Other migrants may view issues such as standards, management and overcrowding as less critical factors within the choices they make about work, incomes and expenditure on accommodation.’
Migrants may be particularly vulnerable in the private rented sector because they may:
- not know about voluntary and statutory schemes available to help access homes in the sector
- have, or believe they have, limited choice because of their restricted contacts and knowledge, or because they are overly reliant on employers, agents or community contacts for help
- not know about their rights as tenants or how to enforce them.
Good advice should fill these information gaps and as an adviser you should know about your local council’s private sector strategy and any schemes it supports or promotes in your area including:
- Landlord accreditation schemes: many local authorities either operate or approve one for their area. Both Wales and London run a single scheme for their whole areas and some landlord associations run nationwide schemes. Most schemes run the same way: landlords undertake training on good housing management and once they have passed the course are able to join and display the scheme logo. They retain their status by continuing regular training. Some schemes run awards to highlight good landlords and some councils offer incentives to join. All offer a complaints service and the facility to check whether a particular landlord is accredited. There are also national schemes for agents and some local schemes include agents. Local authorities usually insist on accreditation before they will place applicants with a landlord and/or allow them to use rent deposit, guarantee or bond schemes.
- Private rented sector access schemes (also known as social or local lettings agencies): a social letting agency is one that specialises in finding accommodation for people with limited access, especially those on benefits. Local lettings agencies are similar, but are restricted to housing applicants from a particular area, usually a local authority (because they are usually run or sponsored by a local council as a way of meeting housing need). Some are run as part of, or in partnership with, rent guarantee/bond schemes. Some councils run schemes specifically for former council homes, because they can provide an economical housing management service that way. They all come under the umbrella of ‘access schemes’ and most can be found using the Crisis search facility.
- Rent deposit, guarantee or bond schemes: can smooth the path of new tenants into the private rented sector by helping with the problem of finding a deposit or rent in advance. They are fairly common and Crisis provide a directory of many of them although some have quite restrictive conditions – serving, for example, only those who are eligible for a full homelessness duty. Since the introduction of deposit protection (see below), most schemes now offer bonds or guarantees rather than cash deposits, helping landlords reduce their costs by avoiding deposit protection.
- House in multiple occupation (HMO) licensing: An HMO is any dwelling with shared facilities occupied by three or more separate households. Councils are required by law to license certain categories of HMO in their area and have powers to extend this to include some or all HMOs: the legal aspects are explained here. Licensed properties should be regularly inspected and landlords must comply with a range of health and safety measures. Advisers should be familiar with any local HMO scheme in area because of the additional protection it provides to residents (see the page on the law and the private rented sector).
- Other help with deposits and rent in advance: for those who cannot get access to a rent guarantee or bond scheme, or who are covered but now wish to move getting a deposit and rent in advance can prove very difficult. Prospective tenants often fall back on expensive credit (‘payday loans’) easily available on many high streets and online. Crisis has a useful factsheet (pdf) on some innovative schemes designed to assist people to save for a deposit. A local credit union may offer savings products and/or more affordable credit. You can find your local credit union here. Your local authority might also offer discretionary housing payments to use for deposits: these are mentioned (p.8) in the official guidance on DHPs (pdf).
There are specific departments or officers in local authorities who have important roles to play in helping private tenants.
Environmental Health Officers have a range of public health responsibilities which include enforcement of housing health and safety standards. Officers may be part of an enforcement team that targets problematic landlords. Some teams work in partnership with the police and Home Office particularly where officers suspect people with irregular immigration status are being exploited by landlords who let substandard accommodation.
Tenancy Relations Officers (TROs) work with tenants and landlords to resolve disputes and exercise local authority powers to prevent harassment and illegal eviction. Not all authorities have TROs but even if they don’t they still have the same responsibilities and powers to prevent harassment. The Association of Tenancy Relations Officers publishes guidance for TROs.
Housing Advice or the Housing Options service is the way that most authorities carry out their duty to offer advice to those at risk of homelessness, but services vary tremendously between authorities. Some prioritise ‘preventing homelessness’ through advice and finding accommodation rather than giving statutory homelessness assistance. Some services include private sector development and enforcement work. A few have developed work with local migrant communities (for an example Hastings). Advisers should be aware what is on offer from the local council and it may be useful to open discussions about how services to migrants could be improved and made more accessible.
Discrimination against migrants in housing: you will find information about how to tackle discrimination here. Private sector discrimination is difficult to monitor and police because in an open market it is difficult to prove that refusing one applicant and accepting another is discrimination. However, your local authority’s public sector equality duty (s.149 of the Equality Act 2010) extends to all of its functions and in exercising them it must have due regard to the need to:
- ‘eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act
- ‘advance equality of opportunity between people who share a protected characteristic and those who do not
- ‘foster good relations between people who share a protected characteristic and those who do not.’
So any private sector enforcement activity should also focus on eliminating racial discrimination. Likewise your authority should ensure that any landlords they accredit, work with or refer people to do not discriminate.
Even if they manage to access private rented housing migrants who are on a low income may face further problems if they claim housing benefit. The requirement to provide a national insurance number can cause difficulties. Certain migrants are also excluded from HB: the rules broadly mirror the right to rent rules but are more complex and restrictive. However, these other exclusions apply only to the claimant and not their partner so if one member of a couple is eligible they can make the claim instead.
The other main problem faced by all private rented claimants (migrants and non-migrants) is that the maximum benefit payable is set by the local housing allowance (LHA). The LHA is the maximum market rent paid for a property that is the right size for the claimant’s household that falls within the cheapest 30% available. The LHA itself is also subject to national limits that mean in some parts of London there will only be a very small number of properties with a rent that is fully covered by housing benefit.
All claims for housing benefit must be accompanied by supporting documents to prove each aspect of the claim is satisfied (identity, the rent paid, tenancy agreement, income and so on).
Ways of applying as homeless to councils and who is eligible for assistance are dealt with on other pages. Local housing authorities may use private rented accommodation when performing their duty to accommodate applicants who are homeless in two ways:
- First, to perform a main housing duty (s.193 Housing Act 1996 in England, s.75 Housing (Wales) Act 2014 in Wales) ensuring that suitable accommodation is available to an applicant until such time that an offer of a permanent home or longer-term private rented sector accommodation is made to the applicant. Your local authority will usually have arrangements with private landlords to provide an assured shorthold tenancy for this purpose. Once accepted the applicant has the same tenancy rights as any other assured shorthold tenant. However, if the landlord decides to evict them, the authority’s main housing duty is re-engaged unless the eviction is the tenant’s own fault (so becoming intentionally homeless).
- Second, an applicant owed a main housing duty under homelessness functions (s.193 duty in England, s.75 Housing (Wales) Act 2014 in Wales) could be made a private rented sector offer which will bring the main housing duty to an end if the applicant accepts it or refuses it. A private rented sector offer is an offer of an assured shorthold tenancy for a minimum fixed term of 12 months in England or six months in Wales. Once accepted, the authority’s duty to secure long-term accommodation is discharged. However, if the applicant becomes homeless again within two years from the date the offer was accepted, they can make a fresh homeless application and do not need to show they have a priority need in order to qualify for a main housing duty (s.195A Housing Act 1996).
In England, when the authority is deciding whether a private rented sector offer is suitable, they must be satisfied that all ten factors in Article 3 of the Homelessness (Suitability of Accommodation) (England) Order 2012 have been complied with. These relate to physical condition of the property and the suitability of the landlord. In Wales, the accommodation is required to be in reasonable physical condition, complies with all statutory requirements (safety etc) and the landlord must be a fit and proper person to act in the capacity of landlord.
Some important points in respect of both uses of assured shorthold tenancies are:
- the offer must be ‘suitable’ for the applicant’s needs and the members of his or her household
- if the applicant refuses an offer of suitable accommodation, the main housing duty will usually come to an end in which case they will no longer be entitled to assistance
- the applicant is entitled to accept the offer and still challenge the decision that the accommodation is suitable – and this must always be the safest course of action
- the authority should if reasonably practicable secure accommodation in its own area but in high demand areas this can be very difficult and applicants are often placed some distance away
- the authority is required to take into account the ‘location’ of the accommodation when deciding whether or not it is suitable and in particular the factors in Article 2 of the Homelessness (Suitability of Accommodation) (England) Order 2012 or Article 3 of the Homelessness (Suitability of Accommodation) (Wales) Order 2015 (pdfs).
From 1st February 2016, private landlords in England (but not Wales) have been required to check the documentation of new tenants and other adult occupants, to establish if they have a ‘right to rent’ under the housing provisions in the Immigration Act 2014.
From December 1st 2016, the scheme is amended (by the Immigration Act 2016) to make leasing premises to someone with no right to rent a criminal offence by the landlord (sections 33A-C of the 2014 Act) and to change the law on security of tenure to make it easier for landlords to evict some occupants when the Home Office inform them they no longer have the right to rent (section 33D of the 2014 Act). These new rights to evict apply to all assured and assured shorthold tenancies (except those excluded from the 2014 provisions) and even to tenancies granted under the Rent Act 1977.
Which lettings are affected?
The 2014 rules affect all new tenancies, licences, sub-lets, lodging arrangements and leases of under seven years, made on or after 1st February 2016 in England, except for the exclusions set out below. Renewals of existing agreements are not affected. The arrangements apply to all residential lettings where a charge is made for occupation, unless excluded. A tenancy would normally be in writing, but tenancies from just verbal agreements or which have been created simply by accepting rent are included. In practice, this means that the right to rent provisions apply to all private sector residential tenancy agreements.
Which lettings are excluded?
- Housing provided by local authorities and housing associations through homelessness or allocations procedures. This refers to any person having a right of occupation in what the Immigration Act unhelpfully calls ‘social housing’, which covers accommodation let by local housing authorities (under secure, introductory or non-secure tenancies or licences) and accommodation let by housing associations or private landlords (including private registered providers) following nomination by a local housing authority through its allocation scheme or under homelessness duties. But if a local authority simply advises a person to apply direct to a landlord, or if a landlord (private or housing association) lets via its own waiting list, allocation scheme or arrangement then that letting is not excluded. Lodgers taken in by LA or HA tenants are also not excluded.
- Care homes, hospitals, hospices and other healthcare provision: this includes any accommodation provided by the NHS to discharge a duty they have towards the occupier, so this might cover a hostel for a person recovering from illness, but it would not cover nurses’ accommodation.
- Hostels and refuges. A hostel is defined as a place offering non-self-contained accommodation and board (or provision for food preparation) that is either run on a not-for-profit basis and funded at least partly by a government or a local authority, or run by a housing association, voluntary organisation or charity. Examples include bail hostels, night shelters or similar. A refuge does not have to be non-self-contained, should be run on the same basis as a hostel, and be for people fleeing violence or abuse.
- Local authority provision for the homeless. Accommodation let by a private landlord but arranged by a local housing authority in performance of any duties or powers to applicants for homelessness assistance (Part 7 of the Housing Act 1996).
- Accommodation arranged by a local authority in performance of its statutory duties or powers. The accommodation may be provided by a private landlord or housing association, such as accommodation arranged under the Children Act 1989 duties or Care Act 2014 duties
- Home Office accommodation for migrants. The Home Office provides accommodation for people claiming asylum and certain other migrants, via contracted suppliers.
- Mobile homes as defined by Mobile Homes Act 1983.
- Tied accommodation provided by an employer to an employee or trainee.
- Student accommodation where this is in a hall of residence, a home provided via a nomination by an educational institution or in a building used mainly for student accommodation and managed by an educational institution or similar or a charity. (Note therefore that student accommodation in the private rented sector is included in the scheme.)
- Leases for terms of seven years or more.
- Non-residential lettings, for example holiday accommodation: the Home Office guidance suggests that any letting for three months or more would not be considered holiday accommodation.
Which occupants must have a right to rent?
All adults, including
- Those liable to pay rent or occupation charges.
- Anyone else authorised to live in the accommodation by the agreement.
- Anyone else living in the accommodation even if not named in the agreement, if the agreement allows it. So this would cover, for example, a partner or friend who moved in after the agreement (although the landlord will not have committed a criminal offence if they can prove that ‘reasonable enquiries’ were made about who would be living in the home before the person moved in and so s/he did not know that the person without a right to rent was going to be in occupation).
How does it work?
Before allowing anyone to move in, the landlord must: check that prospective tenants and adult occupiers have the right to rent; ask for proof of this; and make copies which must be kept for at least 12 months after the tenancy ends. The landlord should also ask for proof of age if he suspects that any occupier is in fact over 18 but has said that s/he is younger.
The document check is intended to establish that they are in one of these groups:
- A relevant national: citizens of the UK, the European Economic Area or Switzerland are not covered by the Act at all (and so have an automatic right to rent), but landlords will need proof that the occupant is in this group.
- A person with a right to rent, as follows:
- A person with an indefinite right to rent: someone with indefinite leave to remain or right of abode in the UK.
- A person with a ‘time-limited right to rent’: someone who has limited leave to remain in the UK or a right to live in the UK under EU law but is not a European citizen (for example, the non- European husband, or the non-British parent of a British child who has no other leave).
- A person with a ‘discretionary right to rent’: this is a get out clause. The Home Secretary can grant a ‘discretionary right to rent’, likely to be used for people who have no current leave but cannot be removed from the UK, or those who are waiting for a Home Office decision on their immigration status. The person will have to apply for it.
Anyone else should not be offered the accommodation.
For those with a time limited right to rent, landlords must make new checks after a year, or (if it is longer) just before the current period of leave in the UK or relevant document expires. If the landlord finds out – either from those new document checks or in any other way or has reasonable cause to believe – that the occupier has no current leave or right to live in the UK he or she must report it immediately to the Home Office. If the landlord fails to report to the Home Office, then they will be committing a criminal offence. The landlord should also be taking reasonable steps to terminate the tenancy and evict the occupiers. If they fail to do so, then they may be committing a separate criminal offence.
Tools to help
There are now various types of guidance and tools to help landlords do the checks:
- The Home Office has set up a question-and-answer checking service which asks about the status and documentation that the prospective tenant has, and landlords can enter ‘yes’ and ‘no’ replies.
- There is guidance (with pictures) on the main types of documentation that prospective tenants might have, to show their status. There is also guidance on examining identity documents, including detecting forgeries, but landlords should be cautious about using it as doing so may undermine their statutory excuse if a document proves to be forged.
- A right to rent check can be requested online, providing the prospective tenant has their Home Office reference number (so this only works for people who have documents lodged with the Home Office awaiting decisions).
- A code of practice explains the procedures in some detail.
- There is also a landlords’ code of practice on avoiding discrimination (pdf) which makes it clear that landlords are expected to check all prospective occupiers, except immediate members of their own family where they have no doubts about their immigration status.
- The Home Office advice line (0300 069 9799) is no longer publicised but is still operational.
- JCWI has published a toolkit for tenants and advisers.
Landlords can appoint an agent to do the checks for them but must do this by a written agreement that specifically covers the Immigration Act 2014. Where the landlord has contracted an agent then the agent is liable for any breach, except where the agent notified the landlord that a prospective occupier did not have the right to rent but the landlord allowed them to move in anyway.
What about lodgers?
The scheme covers all lodgers who pay rent, regardless of whether the person they lodge with is in one of the exempt categories such as being a council tenant. A lodger is defined as someone who takes a room within a home that they share with their ‘landlord’ (who could be the owner or tenant of the property). Lodgers who pay money to live in a property as their only or main home fall within the scheme.
Responsibility for checking if a lodger has the right to rent rests with the tenant who provides the sub-tenancy or takes in a lodger. However, landlords (including social landlords) are advised to ensure that tenants are aware of these requirements as many are likely to be unaware of them and may breach the law by accident.
The Joint Council for the Welfare of Immigrants has identified misleading advice on house guests in the Home Office guidance. It implies (section 3.5) that house guests' documents may have to be checked if they pay rent or if they do not have another main home. The latter point is incorrect, so house guests who do not pay rent are outside the scope of the scheme. This applies equally to all 'hosting' arrangements or any similar schemes where no rent or equivalent is paid: they are not covered by the right to rent provisions.
What happens if things go wrong?
The scheme provides that landlords can be required to pay civil penalties and may also face prosecution. Sentences for criminal offences committed by landlords under this scheme can be fines or imprisonment or both.The civil penalties are set out on a sliding scale:
- The first breach (in the previous three years) incurs a fine of £80 for a lodger, £1,000 for a rented occupier. These are per person, so renting to a family of four adults would attract a first time penalty of £4,000.
- Further breaches incur fines of £500 per lodger and £3,000 per rented occupier.
- From December 1st 2016 landlords who have leased premises to a person with no ‘right to rent’ may also be subject to criminal proceedings and face a prison sentence of up to five years.
For the civil penalty process, the Home Office first issues a referral notice about the property and occupants, then an information request, which the landlord or agent can respond to, and finally the penalty notice, after which the landlord has 28 days to object to the penalty. Possible objections include: disputed liability (for example, the landlord does not own the property or the agent is liable), or a ‘statutory excuse’ (for example, the landlord can prove the checks were carried out or that the penalty is for the wrong amount). The landlord can get a discount of 30% on the first offence by paying the penalty within 21 days or can challenge the penalty in court.
For the criminal process, initially landlords do not commit an offence:
- if the occupancy commenced before the checks were introduced in that area or
- if they have conducted the relevant checks before the occupancy commenced and the occupant is either
- a person with an indefinite right to rent
- a person with a time-limited right to rent or a discretionary right to rent and still within the eligible period
A landlord will commit a criminal offence if:
- Any one of the adults occupying the premises does not have the right to rent and the landlord either knows that he or she does not have the right to rent or has reasonable cause to believe that he or she does not have the right to rent, unless:
- the landlord can show that he or she had taken reasonable steps, within a reasonable period from when the landlord knew or had reasonable cause to believe that the premises were occupied by an adult without the right to rent, to terminate the agreement, or
- After the occupation began, any one of the adults loses the right to rent and the landlord either knows that is the case, or has reasonable cause to believe that is the case, unless one of the following applies:
- the landlord has notified the Home Office of the contravention; or
- the contravention was the responsibility of the landlord’s agent; or
- the adult has not yet lost the right to rent (but the Home Office had served a notice on the landlord anticipating that the right to rent would be lost).
These criminal offences can also be committed by landlords’ agents.
Guidance has been issued as to what these reasonable times and reasonable steps are. The guidance suggests that landlords:
- seek a mutual agreement with the tenant to end the tenancy and do this within four weeks
- see if the disqualified occupant can assign the tenancy to any other occupants who are not disqualified (and get rid of the disqualified occupiers) and do this within four weeks
- use a break clause in the tenancy or other provisions to bring the tenancy to an end and evict within three months
- if all of the occupants have no right to rent, use the new provisions introduced by the Immigration Act 2016 to end the tenancy, wait for the notice period to expire and then evict 'peacefully' within 14 days, by applying to the High Court for a High Court enforcement officer to carry out the eviction, or
- if not all of the occupants are disqualified, serve the relevant notice and bring court proceedings for a possession order.
The guide to checking documents has two lists:
- List A: proves the holder is a ‘relevant national’ or person with an ‘indefinite right to rent’: group 1: proved by a single document, group 2 for documents that will be acceptable if any two of them are produced.
- List B: proves the holder has a ‘time limited right to rent’ or a ‘discretionary right to rent’. These documents may have to be checked again during the tenancy.
It is important to ensure that migrants looking for private lettings have these documents available relating to themselves and any adult family member, before applying for a tenancy. If the document is not a simple passport or otherwise obviously gives a right to rent, it might be helpful to know in advance which of the documents in the guide it is, so this can be pointed out to the landlord.
Being aware of potential discrimination
Despite the code, when the provisions were piloted in the West Midlands they were shown to increase discrimination against migrants trying to access rented housing, so advisers should:
- Ensure they have the relevant knowledge to advise on tackling discrimination.
- Consider how they might prove that discrimination has taken place (for example sending another, non-migrant ‘tenant’ to apply for the same flat or phoning to find out if it is still vacant if the migrant has been told it has gone: this is called situational testing and is acceptable evidence in discrimination cases).
Be ready to open up discussions with the local authority about how they should tackle discrimination in this area and also plan for the likely increase in homeless applications or requests for help from social services from eligible migrants who can no longer get accommodation in the private rented sector as they did before.
The Immigration Act 2016 introduced new ways of evicting tenants and new grounds for eviction by the courts: both came into effect on 1st December 2016. They apply to all assured, assured shorthold and Rent Act tenancies and all licences in England where payment is made for the accommodation, except those excluded by the Immigration Act 2014 (such as those provided via local authority nomination).
These new types of eviction apply only in situations where the Home Office has sent the landlord a notification that the occupier/s are ‘disqualified’ from renting because of their immigration status. The provisions as drafted seem to apply whether or not there are children living in the property. In parliament, during the debate on the Bill which became the Immigration Act 2016, the Minister for Immigration said that the Home Office will consider the circumstances of each member of the family before serving a notice, and will have regard to its duty to safeguard and promote the rights of children.
Eviction without a court order
If a landlord receives a notification from the Home Office that all the people occupying the premises are now disqualified (and there are no children in the household/s) then s/he can use the procedure introduced by the 2016 Act and the accompanying regulations that came into force on 1st December 2016. If the landlord fails to do this within a reasonable time (see above) then he may commit a criminal offence. The procedure is:
- The landlord serves notice on the occupants in the prescribed form laid out in the regulations
- The landlord must attach the notification/s received from the Home Office about the disqualification of all of the occupants.
- The notice must allow at least 28 days before the agreement ends.
- If the occupants dispute the disqualification, they must inform the Home Office of this within the 28 days to allow the Home Office to withdraw the notification. It is not clear what happens then.
- At the end of the notice period, the tenancy or licence has ended and there is no requirement for a court order to evict
- The landlord may enter the premises and ‘peaceably’ remove the occupants or can ask for High Court bailiffs to do the eviction. This because these circumstances are excluded from the normal requirement to obtain a possession order (s.3A(7D) Protection from Eviction Act 1977).
Eviction with a court order
If the landlord receives a notification from the Home Office that one or some but not all occupants are now disqualified s/he cannot use the procedure to evict without a court order. They must still act, however, within a reasonable time, or face possible criminal proceedings. If s/he cannot negotiate for the disqualified occupants to leave (and inform the Home Office that they has done so) then s/he can use the new grounds for eviction created by the 2016 Act (Ground 7B in HA 1988 Sch 2 Pt 1 ('Grounds on which court must order possession') ).
The procedure for eviction with a court order is:
- The landlord serves notice on the tenant/s or licencee/s in the prescribed form for the tenancy and with the relevant notice periods.
- The notice must explain that possession is sought using Ground 7B for assured and assured shorthold tenancies. In fact the regulations on the prescribed forms of notice for all tenancies now include this new ground.
- If Ground 7B is the only ground for eviction, the prescribed period of notice is two weeks, after which the landlord can start court proceedings to evict.
- The court will need to satisfy itself that the ground for eviction is made, so will presumably need to see the relevant notifications from the Home Office.
- If the court is satisfied that the grounds for eviction are made this is a ‘mandatory’ ground and so eviction must be ordered but if
- the tenancy/licence is a joint one and at least one of the tenants/licensees is not disqualified and is qualified
- the eviction is sought only on Ground 7B
then the court may instead order that the tenancy be transferred to the qualified tenants or licensees (s.10A Housing Act 1988 as amended by Immigration Act 2016). There is no equivalent provision in the Rent Act 1977 for the court to order a transfer. The rules for this are all in section 41 of the Immigration Act 2016, which amends the Housing Act 1988.
So if there are no qualified occupants to whom the tenancy can be passed, Ground 7B is mandatory. But if there are other joint tenants or licensees who could take over the agreement then the court has discretion to order a transfer of the tenancy. The court must exercise this power reasonably.
The same process applies if the landlord is claiming possession under the new Case 10A Rent Act 1977. However, there is no obligation on the landlord to have served a notice first, there is no power available for the court to order transfer of the tenancy and the court will be required to consider whether it is reasonable to make an order for possession.
In addition, for assured shorthold tenancies, the landlord could serve a s.21 notice and start court proceedings once that notice has expired. However, the landlord would need to be careful as the two month period might not be considered to be a ‘reasonable period’ so as to prevent the landlord from having committed a criminal offence. If the s.21 procedure is used, there is no power available to the court to transfer the tenancy.
What can advisers do for tenants threatened with eviction because of their immigration status?
This legislation is new and these advice pointers are based entirely on the available legislation, guidance, etc. We welcome suggestions based on practice as it evolves!
- Check that the tenant or other occupant is actually affected, i.e. is a disqualified person.
- Consider whether the tenant needs immigration advice, in which case it will need to come from a regulated adviser.
- Check who else is living with the tenant: are there any children, or any adults who are not disqualified. If so, the only option for the landlord is to use the court eviction procedure.
- If the landlord is using the no notice procedure and there are no ‘qualified’ occupants or children in the household, check the notice is in the prescribed form, includes the notification from the Home Office and that all occupants are correctly identified in the notification.
- Work out with the tenant what s/he wants If s/he is disqualified s/he may want to ask for a discretionary right to rent (and get advice on this) or may prefer to arrange to leave the home.
- If the tenancy is an assured or assured shorthold tenancy, and the notice is not in the prescribed form or has no notification attached, this is probably an illegal eviction attempt and should be treated as such. Help can be sought from the local authority.
- Are the facts in the Home Office notification correct? If not then the occupant can tell the Home Office this and ask for the notification to be withdrawn. If the Home Office fail to respond the applicant needs urgent legal advice to start judicial review proceedings since there appears to be no other remedy. The judicial review claim would be brought against the Home Office, no later than three months from the date of the notification. If the landlord were intent on eviction in any event, then urgent legal advice should be sought as to whether an injunction could be obtained against the landlord.
- If there are children in the household, discuss with the tenant the options for seeking help from social services or any other options. In addition, make representations to the Home Office that the notification was served without proper consideration of the duty at s.55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children who are in the UK.
- If any adult in the household will be eligible for homelessness assistance, assist him or her to make an application for it.
- If there are other tenants/licensees who are not disqualified then consider whether they can take over the tenancy agreement. If so, explain this to the landlord and negotiate it, since this will avoid court costs for all parties
- If the landlord refuses to transfer the tenancy agreement and issues proceedings relying on Ground 7B, then arrange for court representation or help to argue for the tenancy to be transferred by the court.
- If the landlord is using the court eviction process but the tenant says that the notification from the Home Office is wrong (and has not been put right), then name the Home Office as an interested party in the county court eviction proceedings and present the evidence as to why the notification is wrong there.