As we’re sure many other housing law practitioners will agree, we all love a good challenge. It is imperative and all the more rewarding in the current political climate with the limitations in legal aid in so far as Housing is concerned.
Most recently, in the last week it has been confirmed that the civil legal aid merits regulations have been changed. Before 27 July 2015, legal aid could not be granted to clients if merits for housing matters were below 50% or as the regulations classified them, “borderline” or “poor.” The rationale behind this was presumably that this would be a waste of public funds. Interestingly, the amendments to the old regulations appear to be a departure from this old school of thought and certainly give some food for thought. The new regulations effectively mean that nothwithstanding the prospects of success being below 50% or “borderline” or “poor” legal aid will be granted where the refusal of the same may result in a breach of the individual’s rights under the European Convention of Human Rights or European Union law.
The question is then, how does this work in practice? Further questions arise. What types of housing cases will be affected by these fundamental changes? What article rights are likely to be engaged? It certainly had us thinking. It would appear that the most obvious housing cases that we may see a steady rise in might be possession matters. “How so?” you may ask. One only needs to look at the Immigration Bill Proposals that have come about as a result of the immigration dilemma in Calais troubling the French and British Government at present.
Rogue landlords are nothing new but certainly the Immigration Bill looks set to crackdown on these landlords and also on the free movement of illegal immigrants in the UK. This has been confirmed by Communities Secretary Greg Clark stating, “In future, landlords will be required to ensure that the people they rent their properties to are legally entitled to be in the country. We will also require them to meet their basic responsibilities as landlords, cracking down on those who rent out dangerous, dirty and overcrowded properties.”
The Bill aims to look at the operation of tenancies when there is no legal right to reside in the UK. The bill appears to consolidate legal measures in 2014 which resulted in a staggering 36,000 immigration offenders being deported from the UK. For instance the bill will propose landlords ascertaining the immigration status of a tenant before granting a tenancy. The new measures may scrap the need for court orders for possession of a property if there is no legal right to reside in the UK. From a legal perspective this is interesting as a court order is invariably required if a tenancy has been granted. This is exactly where we see the civil legal aid regulations kicking in! If the bill becomes legislation this will throw up many issues not least where article rights are concerned. In particular we see Article 8- the right to private and family life and the Children Act 2004 which promotes the welfare of children in legal scenarios being relied on much more. This would be interesting where there is the hypothetical situation where a parent may not have the legal right to reside in the UK but the child of this parent may have derived the right to reside by birth. Surely this would pose a right to challenge an eviction as it would engage convention rights as required by the merits regulations?
We most definitely look forward to seeing how the regulations and the upcoming bill will present further challenges to us housing lawyers with the weapon that looks to be potential ECHR and EU law breaches in the coming future.