The Act came into force on 12 May 2016 and is intended to clamp down on people in the country illegally. Below is a summary of some of the provisions.
Offences by Landlords and Agents
Under section 33A of the Act a Landlord is committing an offence if he knows or has reasonable cause to believe that his tenant is in the country illegally. It is a defence to the offence if the Landlord can prove that he has taken reasonable steps to terminate the tenancy promptly on knowing or having reasonable cause to believe that his tenant is illegally in the country.
Under section 33B, letting agents will also be committing an offence if they know or have reasonable cause to believe that the tenant is illegally in the country and did not notify the Landlord prior to the Landlord entering into the tenancy. The defence available to Landlords above is unfortunately not available for agents.
The maximum penalty for a breach of section 33A and B, is a prison term of 5 years and/or a fine.
Eviction
Where the Secretary of State notifies a Landlord that all of his tenant/s are illegally in the country the Landlord will be expected to terminate the tenancy under Section 40. The Landlord will need to give the tenant/s 28 days’ notice in prescribed form. If the tenant/s do not vacate on the expiry of the notice the Landlord may use reasonable force to evict himself of instruct a High Court sheriff to evict the tenant/s. This section applies to Rent Act 1977 and assured shorthold tenancies under the Housing Act 1988.
Where the tenancy is a Common Law tenancy, Landlords will need to serve a section 146 notice on tenants illegally in the country.
New Ground 7B, Section 8
Where the property is let to a mix of tenants lawfully and unlawfully in the country, a Landlord may seek possession under Section 8, Ground 7B. This new ground permits Landlords to commence possession proceedings where they have received a notice from the Secretary of State advising that one or more of the tenants is unlawfully in the country. However, tenants that are lawfully in occupation of the property may apply to have the tenancy transferred into their names provided there have been no other breaches of the tenancy.
Comment
The Act is an unwelcome addition to the Landlord’s obligations to check the immigration status of their tenants. The Act fails to address some important issues such as the Deposit position where lawful tenants apply to have tenancies transferred to them. It remains to be seen how the new prosecution powers will be used and whether the courts will be prepared to sentence Landlords on the bases of these offences.
