6. the Immigration Act 2014 and the Right to Rent David Smith

6. The Immigration Act 2014 and the Right to Rent David Smith

INTRODUCTION

The Right to Rent is a new concept created by the Immigration Act 2014. It is distinct from the right to work and the right to reside and is a slightly lower standard than both of these in that it is available to people who are not eco- nomically active and have no recourse to public funds or a right to work in the UK. The essential purpose of the system, as with much of the Immigration Act 2014, is the creation of the so-called hostile environment for illegal migrants originally flagged by Theresa May in a 2012 interview in the Telegraph given when she was Home Secretary (Kirkup & Winnett, 2012). More recently this has been recast as the ‘compliant environment’ with a set of rules that those who might potentially interact with migrants must follow (Travis, 2017). The original 2014 Act has been hardened further by amendments made in the Immigration Act 2016 which has created specific criminal offences relating to breaches of the right to rent and have substantially increased the powers to evict people who lack the right to rent. However, there are very serious problems with elements of the right to rent in terms of its effects on the rights of individual occupiers and how it will work in the parts of the UK in which substantial law-making powers have been devolved to local governments.

APPLICATION OF THE RIGHT TO RENT

The right to rent provisions apply to all ‘residential tenancy agreements’ but this is defined in a way that is somewhat contrary to that understood by most lawyers. It includes any agreement for occupation which creates a right of occupation for adults of a premises for residential use as their sole or main residence even if there are other uses of that premises. This includes lodgers living with the person who owns the property even though these would not normally be understood to be tenancies. The fact that lodgers are included in the right to rent seems to have not got through as more than half of the penalties

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David Smith - 9781788119214 Downloaded from Elgar Online at 09/28/2021 12:22:04PM via free access The Immigration Act 2014 and the Right to Rent 113 levied were against those with lodgers in the first eight months of operation (Lewis, 2017).

Restrictions

The right to rent legislation operates in a slightly unusual manner. The Immigration Act 2014 disqualifies persons from occupying a property under a residential tenancy agreement if they do not have a right to rent (s. 21). It then prohibits landlords from authorising that occupation (s. 22) and seeks to penalise them (s. 23) unless they can establish a ‘statutory excuse’ (s. 24). The statutory excuse is established by showing that the landlord has carried out the proper checks to demonstrate that an occupier has the right to rent. Under the original 2014 Act the penalty is a civil penalty and is not a criminal prosecution or fine. Under the further changes wrought by the Immigration Act 2016 these civil penalties were added to by a further set of criminal penalties (s. 39). This means that, slightly perversely, a landlord is not obligated to check that a tenant or lodger has the right to rent. It is rather that if it is later found that they did not have the right then a landlord escapes being penalised if they can show that they did the checks properly. This creates a deliberately harsh system in operation because if a landlord is in a position where they are in breach of the legislation (a contravention) they must establish the statutory excuse to protect themselves. In other words, it is akin to a ‘state of affairs’ offence as the burden of proof around the establishment of a statutory excuse will be borne by the landlord. In this context, the right to rent is not really a right at all. Tenants were able to rent property freely before it was introduced and landlords were able to rent to them. So, the right to rent has not created any new rights at all. If anything, it has taken them away while also creating new obligations on landlords and new prohibitions on renting. It also categorises entrants to the UK on a new basis, whether or not they have a right to rent, and not just on whether they are permitted to enter the country.

THE RIGHT TO RENT

A right to rent is neither a right to work nor a right to reside. These are distinct positions which are substantially different from the right to rent. They are, of course, no more rights than the right to rent either and are themselves forms of restriction. There are two types of right to rent, permanent and time-limited. Their names are largely self-explanatory. The permanent right is established by someone who has a right to reside in the UK without restriction. While the time-limited right is for those whose right to reside in the UK is limited in time.

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In addition, the Secretary of State can grant a special and separate status called permission to rent. The permanent right to rent is established for UK, EEA (that is the EU plus Iceland, Lichtenstein, and Norway) and Swiss nationals along with those who have acquired such nationality (by marriage for example) or who have gained a permanent right to reside or remain in the UK. This definition has proved problematical for many landlords as they are not always familiar with which countries are or are not in the EEA. This is made even more complex by the UK’s complex relationship with its former colonies and Crown dependencies. For example, persons who are British Overseas Territories Citizen’s (such as people from Bermuda) or who are British Overseas Citizens (former Hong Kong citizens) are entitled to hold a British passport but have no right to reside in the UK and also have no right to rent. The time-limited right to rent is pretty much what it says. It is oriented toward those persons who are present legally in the UK but on a limited basis. This would usually be on a visa but it also deals with asylum seekers who have a time-limited asylum claim and Zambrano carers (those who have a derived right through a minor who is an EU citizen). It is possible for someone with a time-limited right to obtain a permanent right to rent at a later stage by mar- rying a UK national, for example, and becoming naturalised. However, this is also made somewhat complex by the manner in which visas are renewed. It remains common for visas to be in an old passport for example. While these visas are supposed to be transferred into a new passport and are not truly valid if they are not, they are usually honoured at our borders. Likewise, visas are often renewed with small annotations in ballpoint pen which are known to experienced immigration officers but have little meaning to landlords. Permission to rent is something that can be given by the Secretary of State. It is intended for asylum seekers who are not entitled to be accommodated by the state or those who are due to be removed but who are not in detention. However, it is not provided automatically and it is something that has to be requested. There is no guarantee that it will be provided and is entirely at the discretion of the individual immigration officer managing the relevant person’s case (Joint Council for the Welfare of Immigrants (JCWI), 2016). It can only, however, be given to those who do not have that right. That has been particularly important in relation to former Commonwealth citizens. They cannot be given permission to rent as they have a right to rent because they are legitimately entitled to reside in the UK already. There is an aspect in which the right to rent is misnamed. It is not a ‘right’ as such but more of a restriction. Tenants had a right to rent property before and landlords had a right to rent it to them. The right to rent therefore acts more to remove that right and apply a restriction in respect of a defined class of tenants. It is also unclear who the ‘right’, such as it is, is being conferred on. Neither

David Smith - 9781788119214 Downloaded from Elgar Online at 09/28/2021 12:22:04PM via free access The Immigration Act 2014 and the Right to Rent 115 landlord nor tenant can enter into a relationship without the right to rent being established so, while the government tends to talk about it as a right provided to tenants, it is perhaps more in the nature of a cooperative right which is given to both parties, or to the landlord/tenant relationship which arises between them.

Exemptions

The right to rent process only applies to adults. Persons under 18 must be checked briefly to establish that they are under 18 but that is all. Once they turn 18 there is still no obligation to check them. Persons who are not occupying property as their principal home are also exempted from checks. This would include those who occupy for a holiday. However, it is less than clear how landlords are supposed to establish this use. The official Home Office guidance document states that occupation for more than three months or occupancy agreements which are extended or renewed are unlikely to be seen as being for a holiday (Home Office, 2016a, p. 9). The same process excludes hotels from the legislation as well as AirBnB and a host of other short-term accommodation uses such as short stays for medical treatment and the like. Mobile homes and other non-permanent structures are also excluded as are tenancies of more than seven years that do not include a break right for the landlord earlier than that date and letting to students where the educational institution places the student in the accommodation. Persons whose accommodation is provided by their employer as a part of their employment contract are also exempt from checks (Immigration Act 2014, Schedule 3). The exemptions for social landlords are more complex. Where accommodation is provided by a local authority it is exempt. However, accommodation provided by a housing association or similar provider is not automatically exempt from checks. Where this accommodation is provided in order to fulfil a local authority duty to prevent homelessness or a power to allocate accommodation then it will be exempt from the right to rent. However, where this accommodation is provided by the housing association of its own volition such as one of the many schemes operated for the accommodation of key workers then the right to rent will be applicable (Immigration Act 2014, Schedule 3, paras 1–2). But where a housing association is offering a rent to buy scheme or some other scheme on which the resident has a long lease which they will look to convert into ownership, then they are again exempt. Therefore, housing associations are in the frustrating position of having to check some people and not others depending on the purpose for which they are being accommodated.

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Establishing the Right

The right to rent is checked by the landlord examining documents. This leaves landlords very vulnerable to forged documents and has also caused concern because most landlords have little awareness of how to identify a genuine passport from one that is not genuine. No guidance has been provided from the Home Office on how to identify genuine documents and no database is provided of what those documents should look like or what security features to look out for. Ironically, the only such official database and guidance in existence is operated by the European Council (part of the European Union) via the Public Register of Authentic travel and identity Documents Online (PRADO). However, this database is not complete either and so there remains a degree of uncertainty as to how to spot an authentic document. This is made more challenging still by the fact that there are numerous different versions of most countries’ identity documents in circulation at any one time as new security features are developed and added. To check the right to rent and establish the statutory excuse the landlord must review and copy one or more documents belonging to the tenant and any other adult occupier from one of three approved lists. The easiest check by far is to establish a permanent right using a single list from a list known as List A, Group 1. Group 1 includes well understood documents such as passports and national identity cards, although it also includes documents such as indefinite leave to remain documents and UK naturalisation and citizenship certificates. The more complex route to establishing a permanent right to rent is to use any two documents from List A, Group 2. Group 2 is intended for the approx- imately 10 million UK citizens who are not in possession of a passport and is therefore somewhat more difficult to use. It uses two documents because a number of the documents on the list do not actually attest to a person’s immigration status at all. So, for example, one of the documents on the approved list is a UK Driving Licence. However, residents of a number of countries who have been in the UK for more than 185 days can apply for and obtain a full UK driving licence. This will not in any way permit them to remain in the UK any longer than their existing visa and will not give them a right to rent any different from whatever right they had prior to that. A large number of the documents on the list include such things as letters from local authorities and government departments evidencing benefits. There are also some documents on the list which seem extremely open to forgery and can hardly be seen as good evidence of compliance with UK immigration laws. These include a letter from a charity which assists individuals to secure accommodation in the private rented sector, a letter from an employer confirming employment, and a letter from an educational establishment confirming enrolment on an approved course. There is no requirement to check any of these documents and they are

David Smith - 9781788119214 Downloaded from Elgar Online at 09/28/2021 12:22:04PM via free access The Immigration Act 2014 and the Right to Rent 117 all ones which could be easily produced by any person with access to a com- puter and printer. Finally, there is the most unusual letter of all. This is a letter from a British passport holder in a professional organisation who has known the individual for three months or more. This letter is not actually required to confirm anything about the holder of the letter and their right to rent. Even more unusual is the list of approved professions which contains a range of surprising inclusions and omissions. Solicitors and barristers are included, as one would expect. However, legal executives and licensed conveyancers, despite being recognised legal professionals, are not on the list while parale- gals are on the list even though this is not a recognised legal qualification or even a reserved title. Indeed, anyone can choose to call themselves a paralegal if they wish. Equally surprising, are the inclusion of chiropodists, pharma- cists, funeral directors, and professional photographers. These are worthy professions but they have highly limited codes of conduct, no reason to know anything about an individual’s immigration status, and little comeback if they certify someone carelessly. Establishing the right to rent using either group under list A will initiate a permanent right to rent and put in place the statutory excuse on a permanent basis for that tenancy. However, it will not stop a new check having to be carried out if the same occupiers move into a new property, even one owned by the same landlord. Therefore, it is possible that even people with a permanent right to rent can find their status being investigated repeatedly when they move properties. Alternatively, a time-limited right can be established using a single document from list B. This list is primarily based on passports with visas in them but various UK immigration documents with time limits will also satisfy the obligation. If a time-limited right is established then it must be checked again once the time limit on the document runs out or 12 months has passed, whichever is the later. Prior to the expiry of a time-limited right, efforts must be made to re-establish the right and if that cannot be done a report must be made to the Home Office before the current time-limited right ends. There is also the Landlord’s Checking Service. This service is only for checking those persons who have an ongoing asylum claim or appeal with the Home Office and are not in possession of documents as they are being held by the Home Office. These people must be checked through an online form which supplies a response within 48 hours. If there is no response within the time limit then the tenant is automatically approved. However, these approvals are very limited in time and only last for three months.

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Checking

Checks must be done with original documents in hand and in the presence of the holder of that document or with them available via video link. A check must look for inconsistencies, expiry dates, identity and obvious signs of tam- pering or forgery. Copies of documents must be made and retained for one year after the end of the tenancy. These must be made in colour and for biometric documents both sides of the document must be copied. The checks must be done in the 28 days preceding the day before the tenancy is entered into. It is very hard to understand the purpose of a check being made by video link. As the landlord must have the original document in hand during the check it is extremely hard to envisage a scenario that works with video links. A prospective tenant is unlikely to be prepared to send their passport or other identity document to someone they barely know in order to allow for a check to be carried out.

LANDLORDS AND AGENTS

Many landlords use a letting agent to manage their property. In that case, the responsibility for right to rent breaches becomes a little more complex. The landlord remains primarily liable for carrying out the checks. However, if they have agreed with an agent in writing that the agent will carry out the checks then the agent takes over the primary liability. However, not all agents have agreed to carry out the checks. Some agents are only agreeing to do the initial checks and are not doing the follow up checks where there is a time-limited right to rent while some agents will not agree to do the checks at all. This leaves landlords needing to review their agent’s terms of business carefully to ensure that they know who is responsible for doing the checks.

Enforcement

Enforcement is by the Home Office directly. Failure to establish the statutory excuse makes a landlord liable for enforcement action by way of a penalty notice. The notice is a civil penalty notice and no criminal offence is created. Someone who is served with a penalty notice can object to the Secretary of State. This must be done in writing within 28 days of the notice being served. This can be on the grounds that there is no liability to the penalty, that there is a reasonable excuse for the situation occurring, or that the penalty is excessive. The Secretary of State can then cancel, reduce, or increase the penalty. There is a further appeal to the county court. These appeals can only be made after an objection has been made to the Secretary of State and must be

David Smith - 9781788119214 Downloaded from Elgar Online at 09/28/2021 12:22:04PM via free access The Immigration Act 2014 and the Right to Rent 119 brought within 28 days of the penalty notice being given or the Secretary of State determining the objection. Enforcement of penalties is dealt with by them being treated as an order of the county court. There is a well-established process for a penalty to be con- verted to a court order to allow for enforcement by the usual methods such as seizure and sale of property.

Discrimination

There was always a concern that landlords being asked to actively review the status of a person would lead to increased discrimination. To some degree, landlords have always discriminated, whether legitimately or not. Some landlords have exercised their prejudices to refuse to let to the nationals of some countries or some ethnic groups. More lawfully, landlords have refused to let to people with short visas on the basis that they may not be able to stay in the country for the length of tenancy they are seeking or they have only offered tenancy lengths that align with the visa that has been made available to the occupier. However, the new right to rent brings this into sharper focus. By requiring landlords to more directly check identity there is greater scope for those who wish to discriminate to do so and the information is being waved directly under their noses. There is also the simple fact that if landlords are being threatened with penalties, they will be exceedingly cautious and are likely to discriminate indirectly by only accepting occupiers who have documents that they feel they can rely on. During the first six months of the right to rent scheme when it was piloted in the West Midlands the government carried out research into discrimination. This pilot ran from December 2014 and came to an end when the right to rent scheme was brought into force across all of England from 1 February 2016. This research found that there was no apparent reduction in the ability of Black and Minority Ethnic tenants to obtain premises inside the pilot area as compared to a control area outside the pilot. However, the report found some evidence of discrimination with landlords being reluctant to let to people who were not white, either on the presumption that white people needed no checking, or that it would be easier to check them (Brickel et al., 2015). However, the issue of racial discrimination was not really the concern of many commentators. In fact, the concern was that landlords would privilege white British people who were in possession of British passports. This was on the basis that they would feel more confident in this document which they were likely to be familiar with, would assume that a white British person would be unlikely to be forging the document, that the landlord would find this single, clear document easier than two documents from List A, Group 2 and also that people being forced to rely on List A, Group 2 would be perceived as less

David Smith - 9781788119214 Downloaded from Elgar Online at 09/28/2021 12:22:04PM via free access 120 Citizenship in times of turmoil? desirable tenants. In fact, research carried out in the pilot area found that 42% of landlords were less likely to consider someone who did not have a British passport while 27% were reluctant to engage with those with foreign accents or names (JCWI, 2015). This figure has remained remarkably consistent as the right to rent has been extended to cover all of England. In 2017 research found that 51% of landlords were less likely to consider letting to foreign nationals from outside the EU and 42% would not in fact let to anyone who does not have a British passport. 18% of landlords were less likely to rent to EU nationals as well. Even white British people were unable to escape discrimination if they were not in possession of a passport with the survey finding that they were 11% less likely to be able to obtain a tenancy by comparison with a white British person with a passport (JCWI, 2017). This evidence seems to bear out the initial concerns that there is a sliding scale of acceptability to landlords under the right to rent with the white British person in possession of a full passport at the top and non-white, non-EU nationals much further down. The Home Office has also published guidance on avoiding discrimination. This guidance essentially states that landlords should not apply the checks in a discriminatory manner by refusing people of certain nationalities. More controversially it also states that it would be unlawful discrimination to give someone a shorter tenancy because of information derived from a right to rent check (Home Office, 2014). In other words, the checks are only there to establish the right to rent and not for any other purpose. However, discrimination is permitted in situations where it can be justified. If the government is seeking to create a more difficult environment for those who overstay in the UK it seems hard to suggest that it would not be appropriate for a landlord to only offer a tenancy of seven months to a person with seven months remaining on their visa, for example. Offering more would encourage the person involved to overstay if they were unable to renew their visa and place the landlord at risk of either having to evict or of having an unexpectedly empty property if the tenant was apprehended and deported. The Independent Chief Inspector of Borders and Immigration highlighted the reports of the JCWI and others into discrimination in his 2018 investigation into the Right to Rent. While he acknowledged the view of the Home Office that they were not aware of any discrimination he also points out that as there ‘was no mechanism by which a migrant, or any other person, who believed that they had suffered discrimination from a landlord as a consequence of RtR could report it to the Home Office …[it]…was therefore unsighted on whether this was happening’ (Bolt, 2018, para 9.48). However, discrimination alone is not enough in law to question the Right to Rent. The European Convention on Human Rights has an article against discrimination, Article 14. Nevertheless, it is not a complete ban on discrimination, it is a ban on a failure to secure any other right in the convention as a

David Smith - 9781788119214 Downloaded from Elgar Online at 09/28/2021 12:22:04PM via free access The Immigration Act 2014 and the Right to Rent 121 result of discrimination. So, it is necessary to demonstrate that another right has been breached as a result of discrimination. This is difficult to do in relation to a failure to offer a house to a tenant because housing is not a right under the convention. The only right which links to housing is the right to respect for private and family life, Article 8, and this can only really be invoked in relation to a tenant that is already being housed. The issue of discrimination has come to a particular head in relation to UK residents who do have a right to rent but cannot definitively demonstrate it. This has become particularly pertinent in relation to Commonwealth citizens who have come to the UK. Many of them have no documents which clearly show that they are UK citizens with a permanent right to rent. The Home Office is trying to fix this situation but has been forced to produce an alternative route to validate these people by issuing interim guidance to landlords to use the landlord’s checking service (Home Office, 2018). To some extent, this failure demonstrates the in-built discrimination in the right to rent system in that it is actively discriminating against people who are UK nationals but based on their ethnic origin, a protected characteristic. This pernicious effect of the system, which targets ethnic minorities despite them being British residents and places those who are already marginalised even further outside when they seek to access the most basic requirement of shelter, makes the right to rent even more damaging.

IMMIGRATION ACT 2016

Under the original version of the Right to Rent as set out in the Immigration Act 2014 the only penalties that could be levied on landlords were civil fines. This position was changed by the Immigration Act 2016 which amended the original Act to increase the penalties and add substantial new powers. Interestingly, the Immigration Bill that was to become the 2016 Act was laid before Parliament on 17 September 2015. This was before the initial pilot of the right to rent in the West Midlands ended and before the scheme was rolled out across all of England in February 2016. In fact, the evaluation of the pilot scheme had not even been published at the time the Immigration Bill was laid. The decision to roll the scheme out nationally had clearly been made by the time the Immigration Bill received its second reading in October 2015. Theresa May, then Home Secretary, stated in relation to the right to rent provisions in the bill:

We have already introduced a requirement for landlords to check the immigration status of prospective tenants. It is only right for people to be able to access private accommodation if they are in the UK legally…. That is why we intend to roll the requirement out across the UK. However, the immigration status of a current tenant

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is not enough to allow a landlord to regain possession of his or her property. The Bill will remedy that legislative gap and make it easier for private landlords to evict people who have no right to be in the UK. We will also create new criminal offences to target rogue landlords who repeatedly fail to carry out checks or take steps to remove people who are here illegally. Let me be clear that this is not about asking landlords to become immigration experts. Those who want to undertake simple steps will have nothing to fear and will not face prosecution or penalties. (HC Deb 13 October 2014 col. 200)

It was therefore the objective of the Immigration Act 2016 to allow for more aggressive targeting of the few landlords who were deemed to be wilfully flouting the restrictions. A quid pro quo was offered to landlords by allowing them to evict tenants who were not in possession of the right to rent. The 2016 Act also creates a second offence. This occurs where a landlord has let a property reasonably believing that the people he is letting to do have a right to rent. However, the 2016 Act now empowers the Secretary of State to serve a notice informing a landlord that some or all of the occupiers do not have a right to rent. In that case, a landlord potentially commits an offence if he does not then proceed reasonably promptly to evict the occupier who has no right. There is formal guidance on what is meant by a ‘reasonable time’. In general, landlords who cannot agree with their tenants that they should leave within four weeks will need to take further action in the Courts to obtain possession. If a break clause or tenancy end date is appearing within three months, then that will be an acceptable time period in which to proceed otherwise alternative action will need to be taken to procure eviction more quickly. It is acceptable to have breaks of up to four weeks within the process to decide what to do next or to negotiate with the tenant (Home Office, 2016c). It is clear though that a landlord is under some pressure to proceed reasonably promptly as soon as he is informed that there are people living in his property who have no right to rent.

Possession for Lack of Right

Where the notice from the Secretary of State to the landlord only specifies that some of the occupiers do not have a right to rent then the landlord must go to court for possession in the same way as he would if the tenant has not paid their rent. This is made possible by creating a new ground for possession in Schedule II of the Housing Act 1988 specifically targeted at the right to rent. This requires the landlord to give a prescribed notice citing ground and giving the occupiers not less than two weeks’ notice to leave. If they do not do so, then the landlord must make an application to the court to seek possession of the property. As long as the notice is valid and the Secretary of State’s notice is

David Smith - 9781788119214 Downloaded from Elgar Online at 09/28/2021 12:22:04PM via free access The Immigration Act 2014 and the Right to Rent 123 provided the court has no discretion and must order the occupiers to leave and return possession of the property to the landlord. However, the 2016 Act does not stop at simply creating a new route to possession through the courts. It has inserted further powers into the 2014 Act to recover possession (s. 40 Immigration Act 2016). Where the Secretary of State has served a notice or notices which inform the landlord that all the occupiers of a property have no right to rent then the landlord may serve a notice to end the tenancy in a prescribed form. Once it expires, the tenant has no right to be in the property and the combination of the Secretary of State’s notification and the landlord’s prescribed notice is treated as if they were an order of the High Court demanding possession of the property (s. 33D (7) Immigration Act 2014). This possession right can be enforced by the landlord himself by simply changing the locks because the tenant loses all of their security of tenure and tenancy rights under the Housing Act 1988 or Protection from Eviction Act 1977 (s. 33E Immigration Act 2014). This means that any form of self-help is permissible to remove the tenant up to and including the use of reasonable force to remove them from the premises. If this is not sufficient or desirable then the fact that the notice is treated as a High Court order allows the landlord to apply for a writ of possession to be enforced by a High Court Enforcement Officer. Such a writ must pass before a High Court Master for approval but the threshold is low. Permission should be granted as long as the Master is satisfied that the occupiers have received sufficient notice of the planned eviction to allow them to contest it or exercise any rights they may have (Civil Procedure Rule 83.13(8)). However, as the occupiers by this stage have had their rights removed by s33E the fact that they have been notified of a hearing is unlikely to provide them with much benefit. It is comparatively rare for people to be evicted from residential property without an order of the Court. One of the few situations that this is possible is where a lodger is occupying the same property as the owner. This is permitted because in that case to put restrictions on a property owner being able to remove someone from his or her own home would be an unreasonable limitation. Residential tenancy rights have been substantially protected to some degree in the UK since the end of World War I and that protection has contin- ued almost uninterrupted since. That protection has generally been provided by the landlord needing to satisfy some form of condition and the courts acting as an arbiter of whether that condition has been satisfied (Wonnacott, 2013). This is partly because a tenancy is an estate in land and therefore one that English law has traditionally sought to protect. Eviction without a court order has been permitted for lodgers partly because they do not have an estate in land as they are living in another person’s home. However, extending eviction outside the courts to persons who do have that right and who might potentially have an extended right to reside in the property is a radical change in tenant rights.

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It should be remembered that there is no guaranteed right to a home in UK law. The closest equivalent is the right to protection of private and family life which is guaranteed by Article 8 of the European Convention on Human Rights and enshrined in UK law by the Human Rights Act 1998. The Article 8 rights are qualified and are subject to such exceptions as are ‘necessary in a democratic society’. This has been read as a requirement to provide some degree of protection to people’s homes as well as they are the primary location where family life occurs, and the qualification has become enshrined as being a requirement to ensure that any eviction is a proportionate response to the situation at hand. In general, it has been felt that the only acceptable way of doing this is by the individual facts of each case being considered by a court. Of course, the ECHR is primarily intended to protect individuals from the actions of the state and so while it clearly applies to possession proceedings being instituted by organs of the state (see Manchester City Council v Pinnock [2010] UKSC 45) it is less clear how this should work in relation to actions being carried out by one private citizen against another. This is complicated by the fact that landlords can also rely on the protection of the ECHR because Article 1 of Protocol 1 allows that all persons should be allowed to enjoy and control their possessions and depriving a private landlord of their right to obtain possession of their property is not permissible unless it is proportionate. The closest parallel is in the operation of section 21 notices under the Housing Act 1988. This allows landlords in the private residential rented sector to give two months’ notice to their tenants that they wish them to leave the premises without giving any reason at all. There is no substantial defence to such a notice provided the agreed tenancy between landlord and tenant has ended and little discretion for the court in refusing to give possession even where this will cause enormous detriment to the tenant. In McDonald v McDonald & Ors [2016] UKSC 28 the Supreme Court considered this situation. Contrary to the argument being put to it that section 21 had to be read to allow a court to refuse to grant possession in certain cases the Supreme Court held that Parliament had considered the proportionality of section 21 on several occasions and in cases involving private citizens this level of consideration was sufficient to satisfy the requirement of proportionality otherwise there would need to be a consideration in every case of the rights of the tenant under Article 8 and a balance drawn with the rights of the individual landlord under Article 1 of Protocol 1. However, there are real differences between a situation where a landlord chooses, of his own volition, to serve a notice under s21 and one where a landlord is effectively compelled, on pain of prosecution, to serve a notice under s33D Immigration Act 2014. A notice under s33D is being served by the landlord but very much at the behest of the state and it may well be incumbent on the state to consider whether requiring a landlord to serve such a notice is going to violate an occupiers’ rights to protection of their private and family

David Smith - 9781788119214 Downloaded from Elgar Online at 09/28/2021 12:22:04PM via free access The Immigration Act 2014 and the Right to Rent 125 life and whether such a violation is a proportionate response to the situation. It is not clear what consideration the Home Office will apply when a notice is served on a landlord. In addition, there is an element of backstop for s21 notices which allows for some elements of proportionate decision making. Where a court makes a possession order under s21 the normal court order is for possession in 14 days. However, the court has a discretion under s89 Housing Act 1980 to defer the making of a possession order for up to six weeks in cases of exceptional hardship. While this is not a very generous extension it has been held by the Supreme Court to be one which is within the discretion of Parliament and not to be interfered with at the current time (London Borough of Hounslow v Powell [2011] UKSC 8 @ 64). In McDonald the existence of this element of proportionality was also important in justifying the operation of s21. However, no such discretion is available in relation to a notice under s33D. The High Court is only able to consider the case at all where a landlord decides to invoke the assistance of the High Court Enforcement Officer to remove the occupiers. In that case a Master is only permitted to consider whether the occupiers have received sufficient notice of the occupation and has no discretion to consider whether the eviction is proportionate. If they have not then he should not issue a writ, if they have then the proportionality of the decision is not for the court to consider. Therefore, the role of considering the proportionality of a decision to evict under s33D in the case of persons who do not have the right to rent has been passed from Parliament into the hands of the Home Office whose judgment in this matter is not to be subject to any appeal or question at all, most especially not by the occupiers affected by the decision. In addition, there is a possible connection between Article 8 and Article 14. If the Right to Rent is discriminatory then any failure to ensure that Article 8 rights are being properly protected in a way that is discriminatory is a breach of Article 14. Therefore, the discriminatory aspect of the Right to Rent is also potentially crucial to whether or not it properly satisfies the requirements of the convention. It is this that underlies the threats of the JCWI to bring judicial review proceedings against the Home Office over the Right to Rent. A further review is being brought by a tenant who is being threatened with eviction as a result of the Right to Rent because that tenant is specifically at risk of losing her home (Shoffman, 2018).

Forged Documents and Prosecutions

There is some concern over the existence of forged documents and the risk of prosecution of a landlord or agent who has been taken in by them. There is little information as to the number of forged documents in circulation as most

David Smith - 9781788119214 Downloaded from Elgar Online at 09/28/2021 12:22:04PM via free access 126 Citizenship in times of turmoil? studies focus on detected forgeries but it is clear that they are greater in number and of better quality than is generally believed. The Immigration Act 2014 makes no apparent allowance for this as it says nothing about the landlord’s position in relation to forgeries. The Code of Practice is clearer when it says that landlords ‘will not be penalised, if, having taken all reasonable steps to check a document’s validity, they are fooled by a good forgery which appears to be genuine’. However, this tells us little about what the Home Office considers to be a ‘good forgery’. Some more information is to be found in guidance to Home Office staff as to the situations in which they should issue a penalty against a landlord (Home Office, 2016b). This states that enforcement action should only be taken where it is ‘not reasonably apparent’ that the document is forged. This form of words has been used in other legislation relating to immigration as it is used to penalise airlines who bring illegal immigrants into the country. In this area, the court has considered the issue of what ‘reasonably apparent’ means in relation to forged documents in a case involving airlines. Airlines are fined every time they bring a person into the UK who has trav- elled on a forged document where the forgery is then deemed by a senior immigration officer to be ‘reasonably apparent’. Ryanair has paid over £400,000 in fines in 2016 and they sought to challenge the manner in which these penalties were being applied in a test case (Ryanair Ltd v Secretary of State for the Home Department [2016] EWFC B5). In this case, Ryanair had brought two Albanians into the UK on forged Greek passports. These passports are considered high risk at the current time and the Home Office asserted that they are one of the most forged documents passing over the border, although the Court questioned the evidence produced for that statement. The Greek passports were missing two key elements. These were that the word ‘HELLAS’, which should have been printed in an ink which changed colour depending on the angle of the light applied, was in a single colour. The second error was a printed Greek flag which was only partially visible in normal viewing and had to be held up to light to see the flag in full. In the forgery, the flag was fully printed. Two immigration officers gave statements that these errors were in their view ‘reasonably apparent’ to a member of airline staff and that they should have been spotted. However, other immigration officers in other similar cases had found that forgeries which were similar in nature were not ‘reasonably apparent’. The Court did not accept the view of the Home Office at all and took the view that missing security elements like this which are relatively hard to find, even for trained professionals, would not be reasonably apparent to busy airline staff who only have a refresher course on an annual basis. Therefore, it seems then that simply missing an obscure security feature that requires a degree of expertise to find is unlikely to render a landlord liable to a penalty in the view of the courts. However, no landlord has challenged a

David Smith - 9781788119214 Downloaded from Elgar Online at 09/28/2021 12:22:04PM via free access The Immigration Act 2014 and the Right to Rent 127 penalty on this basis yet and so it is hard to assess how the court will view the situation of a landlord who is under less time pressure than airline gate staff and can review a document at leisure.

APPLICABILITY OF THE RIGHT TO RENT

At the moment, the right to rent is only applicable in England. It has not been rolled out, or even run as a pilot in the devolved regions of Wales, Scotland and Northern Ireland. While there are probably a number of reasons for this at least part of this undoubtedly relates to a political issue relating to the Sewel Convention. The Sewel Convention was originally stated solely in respect of Scotland, although it has come to be applied to any devolved region including Wales and Northern Ireland when the Assembly there is sitting. The convention actually derives from a statement made by the then minister of state in the House of Lords, Lord Sewel, during the debate over the passing of the Scotland Bill 1997–98 (see Bowers, 2005). During the debate he stated:

we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament. (HL Deb 21 Jul 1998 Vol 592 c 791)

In practice, the devolved bodies have, over time, created a process where they will pass a legislative consent motion where they wish to adopt a piece of legislation that has come from the Westminster Parliament. The Westminster Parliament, in its turn, will avoid passing legislation that impacts on matters that have been devolved. In relation to the right to rent this creates a degree of confusion. If one views the Immigration Act 2014 as being solely about matters of immigration and nationality, then no issue arises. Immigration matters are in no way devolved and the Westminster Parliament jealously preserves its control over this area. If, however, you view the right to rent as being a matter which relates to housing and landlord and tenant law then that is more of a problem. These are areas which are entirely devolved and therefore are areas in which the Westminster Parliament should fear to tread. This is given further credence by the steadfast opposition of the devolved assemblies to the right to rent being extended to their areas. For example, it is reported that the Scottish government wrote to the Home Office in early 2017 to express their opposition to the extension of the right to rent to Scotland on the basis the independent research showing evidence of discrimination was correct and that there was a danger of similar effects if the legislation was brought into effect in Scotland (Scottish Housing News, 2017).

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However, for those who might nurse the hope that the devolved governments will push back and these measures taking hold in Scotland or Wales, there is a substantial problem. Unfortunately, the Sewel Convention is nothing more than a political convention, as its name suggests. The Privy Council took the view as far back as 1969 that a political convention is nothing more or less than a political gentleman’s agreement, and not therefore subject to the jurisdiction of the courts (Madzimbamuto v Lardner-Burke [1969] 1 AC 645). In this decision, the Privy Council made clear that while some actions by Parliament may be improper and attract moral and political opprobrium, that does not give the courts the right to hold such actions as invalid. In 2012, the Inner House of the Court of Session made clear that the Sewel Convention was just such a political arrangement (Imperial Tobacco v Lord Advocate 2012 SC 297). These decisions were endorsed by the Supreme Court in the Gina Miller case on the necessity of Parliament approving the UK triggering Article 50 to leave the European Union with the majority saying that judges ‘are neither the parents nor the guardians of political conventions; they are merely observers’. To that extent, a convention may assist a court in interpreting a point of law but the court cannot in turn elevate a convention to the status of law or rule as to its validity as this would involve an inappropriate trespassing by the courts into the political sphere (R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 @ 146). While the Sewel Convention has now been incorporated into the legal underpinnings of the devolved assemblies in Wales and Scotland it has been incorporated with substantial safeguards. So, the Scotland Act 2016 inserted a subsection embodying the Sewel Convention into s28 of the Scotland Act 1998. Section 28 sets out the power of the Scottish Parliament to make laws for Scotland. The inserted subsection uses wording similar to the Sewel Convention so that s28(8) states:

(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.

However, this remains subject to the very important qualification provided by subsection 7 which states unequivocally that:

(7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.

The very clear language of subsection (7) should be contrasted with the more qualified wording of subsection (8) which says that the UK Parliament will not ‘normally legislate with regard to devolved matters’ rather than stating plainly that they will ‘not’ or ‘never’ do so. In Miller (@ 148) the Supreme

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Court accepted the argument of the Advocate General for Scotland that the aim of Parliament was not ‘to convert the Sewel Convention into a rule which can be interpreted, let alone enforced, by the courts’ but rather to recognise it as a ‘permanent feature of the relevant devolution settlement’. For Wales, almost exactly the same wording has been inserted into s107 of the Government of Wales Act 2006 by the Wales Act 2017 and so it seems that the same interpretation must apply for Wales. While the Northern Ireland Assembly does not have such wording incorporated into its legislative underpinnings it is far less powerful and the Northern Ireland minister retains substantial powers to legislate for Northern Ireland without any limit by the Northern Ireland Assembly. In fact, the Westminster Parliament made its view very clear in relation to this issue in the Immigration Act 2016. Section 42 of that Act makes the position very clear in its title which reads ‘Extension to Wales, Scotland and Northern Ireland’. Section 42(1) clearly states:

(1) The Secretary of State may by regulations make such provision as the Secretary of State considers appropriate for enabling any of the residential tenancies provisions to apply in relation to Wales, Scotland or Northern Ireland.

It is therefore clear in the passing of the Immigration Act 2016 that the Westminster Parliament sees no obstacle in the Sewel Convention to extending the Right to Rent to devolved regions. A more pragmatic limitation has been imposed by the fact that both Wales and Scotland, and to a lesser degree Northern Ireland, are in flux in a tenancy sense. Scotland has passed the Private Housing (Tenancies) (Scotland) Act 2016 which began to come into effect from the end of 2017 while Wales has passed the Renting Homes (Wales) Act 2016 which will probably come into force in late 2018 or early 2019. The Northern Ireland assembly was also working on its own legislative programme until it collapsed in January 2017. All of these programmes involve radical change to the landlord and tenant regime in operation in the devolved jurisdictions with new processes for the granting of tenancies and the recovery of possession. These have created a practical block on the implementation of the right to rent in that anything that is implemented prior to the changes will become irrelevant and have to be entirely re-implemented again afterwards. The 2016 Act has considered this issue and has granted the Secretary of State considerable powers in s42(3)(a) to ‘amend, repeal or revoke any enactment’. However, there is little purpose in exercising those powers when they will need to be exercised all over again within a year.

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CONCLUSION

The right to rent is still somewhat young and there is a lot to be worked out. It is only applicable in a part of the UK, albeit in the part with the overwhelm- ingly largest number of tenants. There have also been relatively few penalties issued, with the government minister for immigration in the Lords citing just 75 penalties issued to October 2016 in a written answer (HL Deb, 9 January 2017, cWA3406). No civil penalties have been challenged in the courts and there have also been no prosecutions, to date, and so the courts have had little opportunity to consider the scope of the legislation. The scheme does a lot to change the nature of landlord and tenant rela- tionships. Landlords are motivated by the complexity of the scheme to doubt their tenants and their citizenship status while those with more limited means to demonstrate their status are potentially excluded from the rental market altogether. Landlords are forced to categorise their tenants into those who can easily prove their status and those who have more difficulty and also into those who they can rent to and those they cannot. It seems clear that the right to rent is strongly linked to a general thrust by the current government to illustrate that the UK is not an ‘easy option’ for illegal immigrants, if it ever was. The effectiveness of the right to rent checks in doing this is perhaps doubtful with the minister in the Lords only able to identify 654 reports of illegal immigrants in property through the scheme and just 31 removals from the UK in the same written answer.

BIBLIOGRAPHY

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Home Office (2016c), Immigration Act 2014: Guidance on taking reasonable steps to end a residential tenancy agreement within a reasonable time, Home Office, London, December 2016. Home Office (2018), Landlords: Guidance on Right to Rent Checks on Undocumented Commonwealth Citizens, Home Office, London 25 April 2018, available at www.gov.uk/government/publications/ undocumented -commonwealth-citizens -resident -in-the-uk/guidance-for -landlords-con ducting-right-to-rent-checks-on-undocumented-commonwealth -citizens (Accessed 29 April 2018). JCWI (2015), ‘No Passport Equals No Home’: An independent evaluation of the ‘Right to Rent’ scheme, Joint Council for the Welfare of Immigrants, 3 September 2015, available at www.jcwi.org.uk/sites/default/files/ documets/ No%20Passport%20Equals%20No%20Home%20Right%20to%20Rent %20Independent%20Evaluation _0 .pdf (Accessed 10 December 2017). JCWI (2016), Right to Rent: Tenant’s Guide to the Landlord Immigration Checks, Joint Council for the Welfare of Immigrants, November 2016, available at www.jcwi.org.uk/sites/default/files/ 2016-11/2016_11_22 _INT%20JCWI%20RTR%20tenant%20full %20guide%20UPDATE_0.pdf (Accessed 01 December 2017). JCWI (2017), Passport Please: The impact of the Right to Rent checks on migrants and ethnic minorities in England, Joint Council for the Welfare of Immigrants, February 2017, available at www.jcwi.org.uk/sites/jcwi/files/ 2017-02/2017_02_13_JCWI%20Report_Passport%20Please.pdf (Accessed 10 December 2017). Kirkup J and Winnett R (2012), ‘Theresa May interview: “We’re going to give illegal migrants a really hostile reception”’, Telegraph, 25 May 2012, available at www.telegraph.co .uk/news/uknews/immigration/9291483/ Theresa -May-interview-Were -going-to-give-illegal-migrants -a-really-hostile -recep tion.html (Accessed 30 November 2017). Lewis N (2017), ‘NLA questions Right to Rent scheme’, Negotiator, 18 April 2017, available at https://thenegotiator.co .uk/nla-questions-right-to-rent -scheme/ (Accessed 01 December 2017). Scottish Housing News (2017), ‘Scottish roll-out of Right to Rent checks “imminent”’, Scottish Housing News, 14 February 2017, available at www .scottishhousingnews.com/13903/scottish-roll-out-of-right-to-rent-checks -imminent (Accessed 10 December 2017). Shoffman M (2018), ‘Home Office Braced for Legal Challenges Against Right to Rent Scheme’, Property Industry Eye, 2 February 2018, available at www .propertyindustryeye.com/ home-office-braced -for-legal-challenge -against -right-to-rent-scheme (Accessed 29 April 2018). Travis A (2017), ‘Home Office document exposes heart of Theresa May’s Brexit’, Guardian, 5 September 2017, available at https://www.theguardian

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.com/politics/2017/ sep/05/home-office-document -exposes -heart-of-theresa -mays-brexit (Accessed 30 November 2017). Wonnacott M (2013), The History of the Law of Landlord and Tenant in England and Wales, The Lawbook Exchange, New Jersey, 2013.

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