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 112 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 prosecu- tion 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 establish- ment 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. David Smith - 9781788119214 Downloaded from Elgar Online at 09/28/2021 12:22:04PM via free access 114 Citizenship in times of turmoil? 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.

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