If a landlord knows or they or the Home Office believe that someone living in their property in England is not permitted to rent due to their immigration status (“disqualified person”) then the tenancy should be terminated as soon as legally possible. If landlords fail to take prompt action they could face an unlimited fine and/or a custodial sentence of up to 5 years.
Where the landlord discovers that their tenant is a disqualified person then the tenancy can be terminated as follows:
- Where the property is occupied by multiple tenants of which only some are disqualified persons, then a landlord could agree with those disqualified tenants that their tenancy is to end while the others remain.
- Surrender the tenancy by mutual agreement.
- Rely on a Home Office Notice of Letting to a Disqualified Person to end the tenancy.
We intend to discuss the third option only in this post.
Notice of Letting to a Disqualified Person
The Home Office will serve this Notice on a landlord where they have reason to believe that those occupying the property are disqualified from renting due to their immigration status. Furthermore, where landlords fear the tenant is a disqualified person they may approach the Home Office and request a Notice of Letting to a Disqualified Person.
Tenants or occupiers that are disqualified from renting are those that the Home Office consider to be illegally in the country for reasons such as their Asylum application has been refused and they have failed to return to their country of origin, on the expiry of their visa they have failed to return to their country of origin, or they have entered the country illegally using stolen or forged documentation.
Where landlords have received such a Notice or several Notices where there are several disqualified persons and, taken together, identify everyone they believe to be living in the property then they may end the tenancy by:
- Mutual agreement; or
- Serving the tenant/occupier with a prescribed notice and the Notice of Letting to a Disqualified Person giving the tenant at least 28 days’ notice to leave the property. This is a prescribed form and is called a Section 33D notice. Incidentally, when the Home Office send landlords a Notice of Letting to a Disqualified Person they also send a copy to the disqualified person so notice of termination from the landlord should not come as a complete surprise.
If the disqualified person fails to leave on the expiry of the landlord’s notice then they may:
- Rely on the landlord’s notice along with the Notice from the Home Office to apply to the district registry of a High Court to ask that High Court enforcement officers to evict the disqualified person – this is permitted under Section 33D of the Immigration Act 2014,
- Exclude the disqualified person from the property peaceably once the Notice has expired, for example by changing the locks. However, we do not recommend that this course of action is taken because Notices could be sent out in error and this could leave landlords or their agents vulnerable to unlawful eviction claims.
However, where a landlord has received a Notice or Notices from the Home Office and these do not name everyone in the property then the landlord will have to serve notices and then seek a possession order from the Court if the tenants will not leave amicably. The options include:
- Where the disqualified person has an AST a landlord can serve a Section 21 notice or a Section 8 notice ground 7B and issue possession proceedings in the normal way,
- Where the disqualified person has a Rent Act tenancy a landlord can apply for a possession order under case 10A of Schedule 15 of the Rent Act 1977, or
- Where the tenancy is a non-housing Act tenancy a landlord may issue possession proceedings under section 33E of the Immigration Act 2014.
Once a Notice has been served by the Home Office, the landlord cannot simply ignore it. If they do so they will be committing an offence and risk prosecution. Once a Notice has been served then the landlord has up to four weeks to negotiate with the disqualified person for them to leave. If they will not leave within four weeks then formal action will need to be taken.
The Right to Rent process is disliked by many landlords and agents however landlords are advised to familiarise themselves with the process because it is certainly here to stay.