Immigration law update

Right to rent: landlords beware!

With the presentation and first reading, on 17 September 2015, of the Immigration Bill, it is clear that one key target is the exercise of immigration control in the rental sector (see also page 26 of this issue). The Immigration Act 2014, which has only recently come into force, is being trialled in the West Midlands (see Immigration Act 2014 (Commencement No 3, Transitional and Saving Provisions) Order 2014 SI No 2771 article 6(2)) . The IA is designed to create the concept of a person having a right to rent and, correspondingly, persons having no right to rent, as including those persons aged 18 or over with no current leave to enter or remain who have not otherwise been granted a right to rent (under IA s21), and for sanctions to be applied to a landlord or an agent who fails to carry out suÿcient checks to ensure that persons entering into a tenancy after the commencement date (ie, 1 December 2014 for the trial area, but the date for the remainder of the UK has not yet been announced). The current legislation imposes financial penalties set currently as a statutory maximum of £3,000 per tenant (IA ss23(2) and 25(4)) . The legislation is designed not to operate retrospectively, and there is no requirement to undertake an assessment or a check of exiting tenancies as it will only apply to arrangements entered into after commencement (IA s35). The list of premises to which the legislation will not apply are set out in IA Schedule 3, thereby excluding social housing, hostels and refuges, local authority accommodation and student accommodation (IA Sch 3 paras 1, 6, 7 and 11).

A House of Commons Library briefing paper entitled Private landlords: duty to carry out immigration checks recognises that there are resource implications imposed on landlords, but suggests that:

… the [g]overnment has been keen to emphasise what it feels is the ‘light touch’ nature of the regulation … The Home Office has therefore committed resources to provide suitable information to landlords and to offer a checking service for more complicated immigration cases (page 4).¹

It is clear that one key target [of the new Immigration Bill] is the exercise of immigration control in the rental sector

Chapter 26 of UK Visas and Immigration (UKVI) Visas and Immigration operational guidance deals with the right to rent and landlords, setting out UKVI’s approach for caseworkers.² According to the guidance, persons said to be exempt despite otherwise falling within the class of persons without a right to rent (under IAs21(3)) include families with children who are complying with restrictions or are within the family returns process, persons on bail or certain persons within the voluntary departures process (Chapter 26.4).

The guidance also makes clear that there is no power to require an occupier to provide information about their landlord; to search the premises for evidence about the landlord; or to require information to be produced (Chapter 26.6). Perhaps the realisation of a potential enforcement gap is what has prompted yet more draconian legislation to be contemplated.

While it is true that there are some resources that may be made available to landlords to ensure their compliance, describing the requirements as ‘light touch’ is a little optimistic. Anecdotally, a significant number of users of the employer checking service report that there are often errors in the responses given, particularly for those who have made in-time extension applications. One can only hope that the resources devoted to the landlord checking service will achieve a higher level of accuracy, albeit such optimism may be unwarranted.

With civil penalties currently in force in the West Midlands soon to be rolled out soon elsewhere and the prospects of the imposition of criminal sanctions, early access to advice and effective checking procedures operated in a non-racially discriminatory way (under IA s33 and the Equality Act 2010) will be key to avoiding financial and criminal liability for landlords and their agents in the near future. When the proposals for inclusion in the new Immigration Bill were announced on 3 August 2015, these included criminal sanctions for persistent failures to carry out such checks. The proposed legislation appears to target all landlords, not just the persistent offender, provided that they receive notice of the breach (clause 12(2) amending IA s33A(5)) . Other aspects of the proposed new Immigration Bill will be examined in future Immigration law update articles.

Fee waivers

The Immigration Directorate instructions fee waiver guidance was updated in April 2015.³ The key points are as follows:

• If the application for a fee waiver is refused, the application for leave to remain will be rejected as invalid (s1.0), responsibility for providing evidence rests with the applicant (s4.8).
• Financial and residential enquiries such as credit checks, interviews and home visits could be conducted to assess the fee waiver request (s1.0).
• The applicant would need to establish that they are currently destitute, or would be rendered destitute if required to pay the fee or, in cases where they are not and would not be destitute by having to make the payment, that there are exceptional circumstances relevant to the ability to pay (s1.1.1).
• ‘Destitution’ is where the individual does not have adequate accommodation or any means of obtaining it, or having accommodation could not meet other essential living needs (s3.0).
• ‘Rendered destitute’ is defined as having accommodation and essential living needs, but no additional disposable income allowing them to pay the fee now, or save up for it within the next 12 months, and an inability to borrow the money from friends/family and no reason to believe that their financial circumstances will improve within the next 12 months (s2.0).
• Exceptional circumstances are not defined, but the guidance indicates that such cases would be rare and approval must be obtained from a senior caseworker. An example cited would be where the money is otherwise required to be spent on essential items required by reason of a child’s illness or disability (s4.10).
• The fee waiver is only available where the primary application is on human rights grounds, not where it is a subsidiary or tangential issue (s1.1.2).
• It will not be available for the five-year partner/parent routes (s1.2.2), nor for indefinite leave applications (s1.2.3) since in the former there is a requirement to meet a financial test, and in the latter a grant of limited leave would be suÿcient to enable the individual to exercise a right to family and private life (though there remains some discretion) (s1.2.3).
• A subsequent application for further leave will require a fresh assessment of whether the individual continues to be destitute, or rendered destitute or there exist exceptional circumstances (s1.3).

The Asylum Policy Instruction: discretionary leave was published in August 2015.⁴ The instruction requires the payment of fees for applications from failed asylum-seekers and victims of modern slavery or traÿcking made on or after 6 April 2015 unless within the scope of the fee waiver policy (s10.2). This policy must be read in conjunction with the Immigration and Nationality (Fees) Regulations (IN(Fees) Regs) 2015 SI No 768, which provide waivers in a variety of situations, including a child supported by a local authority (IN(Fees) Regs Sch 2 Table 9 Fee 9.6).

In R (Williams by his father and litigation friend Richard Williams) v Secretary Of State for the Home Department [2015] EWHC 1268 (Admin), a legal challenge was brought alleging that the regulations were ultra vires for failing to exempt children receiving local authority assistance from having to pay the registration fee for citizenship (although the challenge was to the previous regulations, the scheme was not dissimilar for the purposes of the claim (see para 27 of judgment)) . The application was rejected. At the time of writing, an application for permission to appeal to the Court of Appeal was pending (C4/2015/1829).