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Posted on 3rd September 2015

Everyone will undoubtedly be aware of the current political turmoil concerning immigration and the current dilemma over in Calais regarding the refugee crisis, particularly the tragic events that have recently unfolded over the past few days. However, those attempting to cross the border and reside in the UK may have an impossible hurdle to jump if they hope to secure housing support and assistance, and discover the UK is not in fact the haven they have been striving to reach.

Just a short few weeks ago, our colleagues in the Hodge Jones & Allen Housing Department wrote about the thought-provoking upcoming changes proposed in the Immigration Bill. Briefly discussing the proposed changes in respect of eviction and possession proceedings where the tenant has no legal right to reside in the UK, Ms Chowdhury and Ms Ratti gave interesting consideration to the Bill as a whole. This article, which might be of interest to you, can be found by clicking here. The purpose of this blog is to deliberate one of these provisions in more depth, in what is likely to be one of the most controversial legal developments over the coming years.

Under the proposals, landlords in England will be required to evict tenants who do not have leave to remain in the UK, requiring migrant status checks in advance of agreeing tenancies. As discussed below, these proposals have been trialled in recent years, but rolling them out to the rest of the UK was stopped in its tracks by the Liberal Democrats in the former coalition government. However, we no longer have the Liberal Democrat influence in government under the new political climate of a Conservative government for the next 5 years.

In particular, the rules pertain to a range of residential agreements that require the payment of rent. This includes tenancies, leases of less than 7 years, licences, and sub-tenancies or sub-leases. Landlords who fail to adhere to these rules may face a sentence of up to 5 years imprisonment, the maximum penalty being applied in cases where the landlord is a repeat offender. Furthermore, Landlords could be fined as much as £3,000 per night, per adult resident if they infringe the above provisions. However, this is not the first time that these rules have come about, in fact, it has been recently tested in the West Midlands, with landlords in Dudley, Sandwell, Wolverhampton, Walsall and Birmingham having to carry out immigration checks.

Landlords who fail to adhere to the above, will be blacklisted, and could be banned from letting out properties in the future. The blacklisting of “rogue” landlords should, on the face of it, be welcomed, from a human right’s perspective and while we have seen this administrative nightmare crash and burn previously, there is no suggestion as to who will maintain such a list and who will be given access to that list. The administrative hurdles in maintaining such a list could be burdensome. However, blacklisting landlords who let to migrants without legal residence gives a greater incentive for them to refuse to give tenancies.

The move is in part a drive to make it more difficult for migrants to live in the UK where they have no legal right to reside in the UK, and in the words of Home Secretary Theresa May, show that our “streets are not paved with gold”. It has been estimated that the number of migrants in the UK that have overstayed their visas, whose current location is unknown, is around 300,000.

Under the Protection from Eviction Act 1977, it is currently a criminal offence to remove a tenant without first obtaining a court order, unless the tenancy falls with a number of notable exceptions. The summary eviction of all those who do not have a legal right to reside undoubtedly means that this requirement is no longer needed, and in most cases, the requirement of going to court to evict these tenants would no longer be necessary. Of course, the tenant may refuse to leave the premises, in which case a court order may be sought, but the evidential burden will be almost non-existent as landlords would only need to demonstrate that the tenant has no legal right to reside.

The proposed changes to the law will no doubt spark fury in the EU, in particular the potential infringement on Article 8 of the European Convention on Human Rights, as Ms Chowdhury and Ms Ratti recently pointed out in their recent article, the effect of the Children Act 2004, which endorses the welfare of children. The National Landlord’s Association have advised that the measures could lead to tenant’s “doing very desperate things.” This is no surprise given the lengths that refugees have gone to enter Europe and great risk to their own personal safety.

Shelter have correctly pointed out that landlords in a position to choose between two or more tenants are likely to choose the tenant who they believe is “less risky”, a requirement which will exacerbate existing discrimination. The West Midlands have already seen a sharp increase in discrimination matters, with non-white British Citizens being refused tenancies owing to the fact that they do not hold a British passport. The deterrent of a jail sentence and hefty fine is enough to send the landlords running making it harder in the current housing crisis to get a tenancy and already the loss of obtaining an assured tenancy, which gives the tenant much greater protection against eviction, is, perhaps, the biggest cause of homelessness and has been growing year-on-year.

The proposals are not only flawed from an apparent moral standpoint, but the workability and general application of them will no doubt be an equal burden to all parties involved. Surely these proposals are only workable so far as the Home Office is aware that migrants are present in the UK, if not, the responsibility will be assigned to the landlord to find out.

Even from a tenant-friendly perspective, we cannot deny that this Bill also puts a great onus on the landlords too. Landlords will now be required, before the signing of a lease, to check a person’s migrant status. The proposals indicate that the Home Office will issue a notice once an asylum application fails and this person would therefore be ineligible to rent a property in the UK. Shadow immigration minister David Hanson agreed that ministers simply appeared to be offloading the problem of immigration on to landlords, and authorities should be imposing tougher immigration standards and enforcing this themselves, though Communities Secretary Greg Clark could not say exactly how many people would be deported as a result of these proposals. The UK Association of Letting Agents have also advised that they already carry out such checks, but a greater onus to police the country’s borders as it were was not appropriate.

Greg Clark said the changes were designed to help landlords by saving them the costs of having to go to court if the Home Office serves a legal notice that the tenant no longer has the right to remain in Britain, but how this will work in practice is, unfortunately, yet to be seen.

If such proposals are pushed through Parliament, we will no doubt see a sharp increase in possession claims being issued, Human Rights based defences, new Homelessness applications. It may be difficult to raise strictly legal defences, although there is always the fall-back proportionality defence, which may be increasingly used, especially where the tenant has dependent children.

This is arguably one of the biggest blows to UK Justice since the introduction of LASPO 2012 and these new proposals may just prove to be even more unpopular.

Our Social Housing Solicitors are backed by nearly four decades of experience. Our legal practice and team of London Solicitors have a strong track record of achieving favourable client outcomes. For expert legal advice use our contact form or call us on 0808 250 6017 today.