This article follows on from our earlier update in January of
this year on the 'right to rent' checks introduced by the
Immigration Act 2014 (see
here for a recap of these).
From 1 December 2016, a number of the provisions of the
Immigration Act 2016 (the "2016 Act") come into
Perhaps the most drastic change brought in by the 2016 Act is
that, as well as the existing civil penalties, landlords or their
agents may now find themselves the subject of criminal penalties
for failures to comply with 'right to rent'
From 1 December 2016 landlords commit a criminal offence if the
following two criteria are met. The first condition is that the
landlord's premises were occupied by an adult who is
disqualified as a result of their immigration status and the second
condition is that the landlord had reasonable cause to believe that
the premises were occupied as such.
A person is 'disqualified' as a result of their
immigration status if that person is not a relevant national (i.e.
a British citizen, EEA or Swiss national) and does not have a
'right to rent' in relation to the premises. A person does
not have a 'right to rent' if they require leave to enter
or remain in the UK but do not have it or that person's leave
is subject to a condition preventing them from occupying the
The 2016 Act gives landlords a defence against criminal
liability where firstly the landlord has taken reasonable steps to
terminate the illegal tenancy and secondly the landlord has taken
these steps within a reasonable period beginning with the time when
the landlord first knew or had reasonable cause to believe that the
premises were occupied illegally. The Secretary of State is due to
issue guidance on what constitutes 'reasonable steps'. The
current guidance is in draft form and is therefore subject to
change. At the time of writing, the draft guidance notes that the
landlord should seek mutual agreement with the disqualified tenant
in the first instance and, if this is not possible, then follow the
relevant eviction process. For example, service of a Section 21
Notice for an Assured Shorthold Tenancy.
Similarly, the 2016 Act introduces criminal liability for agents
who knew or had reasonable cause to believe that the landlord would
contravene the 'right to rent' provisions and had
sufficient opportunity to notify the landlord of that fact but
failed to do so.
The penalties introduced by the 2016 Act vary depending on the
severity of the offence. For less severe breaches, punishment is by
way of imprisonment for a term of up to 1 year and for the most
severe offences, imprisonment of up to 5 years. In addition, an
unlimited fine is possible either as an alternative to or in
conjunction with imprisonment. Importantly, these penalties also
apply to the officers of body corporates if that corporate
committed the offence with the consent of an officer of the body
(or a partner for partnerships).
As mentioned above, one of the 'reasonable steps' a
landlord can take to terminate a tenancy is to follow the relevant
eviction process. The 2016 Act introduces new powers for landlords
in relation to this. Where all the occupiers of a premises under a
residential tenancy agreement are disqualified and the Secretary of
State serves a notice on a landlord:
identifying all of the occupiers of
the premises; and
stating that they are all disqualified
as a result of their immigration status
the landlord may terminate the tenancy by giving notice in the
prescribed form, giving 28 days to end the tenancy. This notice is
enforceable as if it were an order of the High Court.
Where only some, and not all, of the occupiers under a
residential tenancy agreement are disqualified, the court may order
that the disqualified occupiers' interest under the tenancy be
transferred to those persons under the tenancy who do have a right
Whist under the existing legislation, landlords are liable for a
fine of up to £3,000 for contravening the right to rent
provisions, the 2016 Act's introduction of criminal liability
for these failures gives the right to rent penalties real bite. As
mentioned these changes are effective from 1 December 2016. For a
refresher on how to comply, please see our article
here. For more information on anything raised in this article
or for further guidance on how to comply, please contact a member
of our Real Estate Dispute Resolution team who would be more than
happy to assist.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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