Immigration Act 2016 : New NOSP and New Mandatory Ground for Possession

Immigration Act 2016 : New NOSP and New Mandatory Ground for Possession

Immigration Act 2016 : New NOSP and New Mandatory Ground for Possession

The Immigration Act 2016 amends parts of the Immigration Act 2014 with an aim to clamping down on persons residing in the UK illegally. This note explains the key changes regarding a landlord’s liability under Sections 39 – 42 Immigration Act 2016 which will come into force on 1 December 2016.

Immigration Act 2014

Currently, under the Immigration Act 2014 it is a criminal offence for a landlord to authorise occupation of a property by an adult who does not have a “Right to Rent” in the UK.  All landlords and agents are required to carry out checks to ensure prospective tenants have the right to reside in the UK before granting them a residential tenancy.

Section 39 Immigration Act 2016 – Section 33A

Section 39 Immigration Act 2016 inserts a new Section 33A into the Immigration Act 2014 (“Section 33A”) which also means a landlord will be committing a criminal offence if:

  1. they allow their property to be occupied under a residential tenancy agreement by an adult who is disqualified as a result of their immigration status; and
  2. the landlord knows, or has reasonable cause to believe, that the premises are being occupied by an adult who is disqualified as a result of their immigration status.

This criminal offence has a maximum penalty of a prison term of 5 years and/or a fine.

A landlord would be considered to know or have reasonable cause to believe a property was occupied by adults residing in the UK illegally (thus creating criminal liability) if the landlord has received notice of the same from the Secretary of State.

Once a landlord has received such a notice from the Secretary of State the landlord must act quickly to avoid criminal liability by ensuring that they take reasonable steps to terminate the tenancy within a reasonable period of time beginning with the date the landlord receives notice from the Secretary of State.

Terminating the Tenancy

On receipt of notice from the Secretary of State confirming that 1 or more adult residing in a property is in the UK illegally the landlord will have to take action to terminate the tenancy. There are 2 routes for seeking possession depending on how many of the adults are occupying without appropriate immigration status

“Notice Only”

Please note that the “Notice Only” ground can only be used where all of the occupiers in the property are disqualified as a result of their immigration status.

When a landlord is notified by the Secretary of State that all of the adults residing at a property are disqualified due to their immigration status the landlord will be expected to terminate the tenancy by giving 28 days’ written notice to the tenant(s) on the prescribed form Notice to Quit (“NTQ”).

On expiry of the NTQ, the notice will become enforceable as if it were an Order of the High Court. The landlord can then instruct a High Court Enforcement Officer to enforce the NTQ without obtaining a possession order.

Section 3A Protection from Eviction Act 1977

However, in theory it is not necessary for the landlord to instruct a High Court Enforcement Officer to carry out the eviction following expiry of the NTQ. This is because following an amendment to Section 3A Protection from Eviction Act 1977 if a notice has been served by the Secretary of State identifying all occupiers as not having appropriate immigration status the tenancy it will be considered an “excluded tenancy” and the landlord could therefore simply change the locks upon expiry of the NTQ. Landlords should still be cautious about physically removing people themselves or they could face criminal assault charges.

Claim for Judicial Review

We suspect that this new “Notice only” method could be problematic and will likely face legal challenge in the future. The difficulty is that the occupiers will only have 28 days from service of the NTQ before they are evicted.  This would mean that occupiers wishing to challenge the Secretary of State’s notice will have to issue a claim for Judicial Review before the 28 days expires and also seek an injunction against the landlord to prevent them from executing the NTQ on its expiry. The problem for the landlord is that they have no choice other than to take action against occupiers if they are to avoid criminal liability under the Immigration Act 2016.

Ground 7B Schedule 2 Housing Act 1988

 

Ground 7B can be used for all assured tenancies including fixed term assured tenancies even if the fixed term tenancy does not make provision for it to be brought to an end on this ground.

Note that Ground 7B can be used if any adult occupier (i.e. not necessarily the tenant) in the property is disqualified as a result of their immigration status; it does not have to be all of the occupiers in the property as required for the “Notice Only” route above.

Pursuant to Section 41 Immigration Act 2016 which inserts Section 33E (1) into the Immigration Act 2014, a landlord may seek possession by relying on the new mandatory ground for possession: Ground 7B Schedule 2 Housing Act 1988.

Ground 7B allows a landlord to commence possession proceedings where they have received notice from the Secretary of State advising that 1 or more of the occupiers in the property are unlawfully residing in the UK.

Notice of Seeking Possession (NOSP)

On receipt of such notice from the Secretary of State the landlord must serve a Notice of Seeking Possession (“NOSP”) on Ground 7B giving a notice period of 2 weeks.

Unlike the “Notice Only” route, on expiry of the Ground 7B NOSP the landlord will still be expected to obtain a possession order from the Court before applying for a warrant for possession and obtaining a bailiff’s appointment to evict the tenant.

Ground 7B is a mandatory ground for possession and as such the Court will have no discretion and must make an order for possession (subject to any Human Rights or Public Law arguments on proportionality).

Joint tenancy

In the case of a joint tenancy where only 1 of those joint tenants is disqualified by their immigration status, instead of granting an order for possession, the Court may order that the tenancy is transferred to those joint tenant(s) who are not disqualified provided that there are no other grounds which would make it reasonable to order possession.

As Ground 7B is a mandatory ground for possession it will be important for social landlords to remember to comply with Part 3 of the Pre-Action Protocol for Possession Claims by Social Landlords as you would for any other claim brought on a mandatory ground.

If you require further advice on this feel free to contact us using the details below.

New NOSP

Following the implementation of Ground 7B under Section 41 Immigration Act 2016 the Prescribed Form for all NOSPs has been amended to make reference to the new mandatory ground. Therefore, from 1 December 2016 the new prescribed form NOSP must be used for all claims for possession on any ground.  If you would like a Word version of the new NOSP please contact us and we will be happy to provide it at no charge.

If you have any further queries, please do not hesitate to contact our Social Housing Team on 01753 876800 or caroline.cowley@owenwhite.com.

November 2016