In this new article for EYE, I am warning that a new Immigration Act upgrade is to come into force before the end of this year, with serious legal implications for both letting agents and private landlords.

Concealed within the speech of the Home Secretary, Amber Rudd, at the Conservative Party conference, was a statement that the provisions of the Immigration Act 2016 that relate to landlords and agents acting on their behalf would be brought into force in December this year.

These provisions further upgrade the Right to Rent regime with new, more severe, penalties and new powers. Agents and landlords beware!

Current situation

At the moment landlords or agents acting on their behalf are required to ensure that occupiers of properties with occupation agreements which began after February 1, 2016 (December 2014 for those in the west midlands pilot area) have an appropriate Right to Rent.

They can obtain a so-called “statutory excuse” against it being found that no Right to Rent exists by carrying out checks in the approved manner.

If they are found to be renting to those without a Right to Rent and cannot fulfil the statutory excuse then a civil penalty of up to £3,000 can be levied against them.

It is important to remember that the provisions also apply to lodgers and to any adult the landlord, or agent  reasonably believes will be occupying the property as their only or main home.

New offences

The new Act keeps the original civil penalty but adds a new set of offences for landlords and agents who know or should have known that persons living in the property were not in possession of a right to rent.

These new offences can be prosecuted in either the magistrates or crown court. In the magistrates court the maximum penalty is an unlimited fine, a prison sentence of up to 12 months, or a combination of the two while in the crown court there is again an unlimited fine but the maximum prison sentence is five years.

The Home Office has previously stressed that prosecutions will be targeted at repeat offenders but the pressure is now massively increased on landlords and agents to be seen to be doing the checks, and doing them properly.

Obligation to evict

In addition there is a new power for the Home Secretary to serve a notice on a landlord (she will not come round and do this personally!) in respect of occupiers who have a time-limited right to rent informing the landlord that this right has now expired or never in fact existed.

In these cases the landlord, or their agent, is under an obligation to take steps to evict those people from their property in a reasonable period.

There is approved guidance to be provided on what is a “reasonable period”. It has yet to be published officially but drafts have operated on a two-four week time period.

So an agreement for the unlawful occupier to leave within 28 days or to make a decision and serve an appropriate notice if reasonably possible, then a further period of 14 days between the expiry of a notice and the commencement of court proceedings or alternative steps to secure possession.

Therefore landlords or their agents will be under substantial pressure to act promptly in relation to tenants who are notified to them as not having an appropriate right to rent.

It is uncertain how many of these notices are actually going to be served on landlords. They will only occur if the Home Office has detected the person involved and in many cases that will be as a result of the landlord making a report themselves.

New powers

The new Act also creates new powers to evict which are linked to the Home Secretary notices mentioned above.

If notices from the Home Secretary identify only some of the occupiers in the property as being unlawful immigrants then there is a new ground for possession to be used by way of a Section 8 notice.

This will allow eviction through the Courts. There are similar provisions for tenancies which do not fall within the Housing Act 1988. If the Home Secretary has served one or more notices which collectively identify all occupiers as being unlawful immigrants then the landlord can serve a 28 day notice to quit.

Once that has expired the landlord can use reasonable force to remove the occupiers as their legal rights to prevent eviction are removed. If the landlord is reluctant to do so themselves they can use the services of a High Court Enforcement Officer to remove the occupiers.

This is all without the need to go to court. However, the number of properties that are occupied solely by unlawful migrants has generally been found to be low so far and there is usually a mixture of lawful and unlawful migrants in most premises so these more draconian powers may be of limited use in most practical cases.

Conclusion

These new provisions are quite controversial and will be of concern to many agents and landlords. It is important to remember that Right to Rent checks are only there to satisfy landlords and agentsthat a tenant has a Right to Rent and it is unlawful discrimination to use them to make any other tenancy related decision.