Housing and immigration: legislative updates (2)

Wednesday 30 November 2016

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Right to rent (1): new mandatory ground for possession

On 1 December 2016, the new mandatory ground 7B, Part 1, Schedule 2 Housing Act 1988 will come into force. This ground was inserted by s41(2) Immigration Act 2016, and is subject to the transitional provisions contained in s41(7) which provide that the ground may be relied on irrespective of when the tenancy was granted.

The ground provides, subject to certain procedural requirements, a basis for a landlord to recover possession where the property is occupied by one or more person who does not have the ‘right to rent’ as a result of his or her immigration status. The first step in engaging this process is for the Home Secretary to serve a notice on the landlord identifying one or more of the occupiers and indicating that they are disqualified from occupying the property as a result of their immigration status.

Section 41 Immigration Act 2016 also introduces an analogous ground in respect of Rent Act 1977 tenants: case 10A, Part 1, Schedule 15 Rent Act 1977.

Also on 1 December 2016, a new s10A Housing Act 1988 will come into force. This provides that in certain circumstances where ground 7B is established in respect of a joint tenancy, but no other grounds are, the court has a discretion to transfer the tenancy into the name of one or more of the tenants who do have the right to rent.

A landlord wishing to rely on the new ground 7B (or for that matter any on the existing grounds of possession) will need to serve a notice under s8 Housing Act 1988 in the new prescribed form contained in the Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment No. 2) Regulations 2016, SI 2016/1118.

Right to rent 2: eviction without a court order

On 1 November 2016 s33D Immigration Act 2014 came into force. This provision was inserted by s40(2) Immigration Act 2016. It allows, in certain strictly defined circumstances, for a landlord to obtain possession of a property where the occupiers do not have the right to rent, without the need for a court order. As with the new mandatory ground 7B, the first step in engaging this process is for the Home Secretary to serve a notice on the landlord. Unlike ground 7B, this process will only be available where all of the occupiers are disqualified from occupying the property as a result of their immigration status: see s33D(2).

The process involves the landlord serving a notice on the tenant which is then ‘enforceable as if it were an order of the High Court’: s33D(7). The prescribed form of notice, which comes into effect on 1 December 2016, is contained in the Schedule to the Immigration (Residential Accommodation)(Termination of Residential Tenancy Agreements) (Guidance etc.) Regulations 2016.

Comment: the meaning of the phrase ‘enforceable as if it were an order of the High Court’ may prove to be problematic. In short terms, does it allow the landlord to effect peaceable re-entry by going in and changing the locks him or herself? Or does it require the landlord to rely on High Court Enforcement Officers to do the job for him or her? The latter would provide the occupiers with additional notice and time to try and make alternative arrangements, for example, in the case of a family, by seeking the assistance of social services under s17 Children Act 1989.

This is not a new point. HLPA raised the issue in their written evidence to the Bill Committee:

It is not at all clear what it means for a notice to be enforceable "as if it were an order of the High Court." In particular, the landlord’s notice to his tenant seems intended to have the effect of terminating the underlying tenancy and removing all security of tenure. That would appear to suggest that the landlord can simply use "self-help" to recover possession, i.e. personally turn up and throw occupiers onto the street. There are clear risks in this, of potential violence and damage to property, for both landlord and tenant. If what the government intends is that a High Court Enforcement Officer must carry out the eviction, then that needs to be made clear.

Judging by new prescribed form, the Government plainly does anticipate that landlords may be able to use self-help. The introductory blurb on the form warns occupiers that ‘if you do not give up vacant possession of the residential premises by the end of the specified date the landlord may peaceably re-enter the property to take possession of it’.

But this does not really provide an answer to the question. If the primary legislation does not permit landlords to use self-help then the fact that the secondary legislation says that they can is irrelevant. In so far as there is a conflict between the two then the latter would be ultra vires.

So it comes down to a question of the correct statutory construction of s33D(7). And there is at the very least an argument, potentially by analogy with the approach of the Court of Appeal in Haniff v Robinson [1993] QB 419 and with reference to the identical wording of s42(5) of the County Court Acts 1984 and to CPR 83.13(1) (which provides only three specified ways in which a High Court order may be enforced), that s33D(7) requires the use of HCEOs and that if Parliament had intended otherwise it would have said so expressly.

There are obvious distinctions between the situation in Haniff (which involved a tenant entitled to the due process and protection of the Rent Act 1977) and the situation under the Immigration Act 2016, where such protection has been stripped away by statute. But the point is not a straight forward one and in the absence of a definitive answer the prudent course might be for landlords to seek the assistance of HCEOs rather than taking matters into their own hands.

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