Now that landlords and estate agents face potential fines of £3000 per illegal migrant harboured in residential premises, it might be time for them to team up with immigration solicitors and shift the liability on the sturdier shoulders of those with legal training and feisty character.
In a written ministerial statement published on 3 September 2014, James Brokenshire announced that the measures affecting the landlords as prescribed by the Immigration Act 2014 will first be implemented in West Midlands with the commencement date of 1 December 2014.
A “Code of Practice on illegal immigrants and private rented accommodation” has been published along with the ministerial statement. The Code makes it clear that it applies to residential tenancy agreements granted in relation to property located in an area where the Scheme has been implemented and that the scheme will be implemented on a phased geographical basis. So watch this space if unsure where you stand.
On the whole the Code of Practice is a 31 page long call for vigilance with a detailed elaboration on the calculation of penalties, the way penalty notices will be served, methods of payment and ways of challenging penalty notices. It is all too similar to parking tickets. With the difference that one has to think about statutory defence all along.
Interestingly, the Scheme does not apply to children as occupiers. The landlord may allow children under the age of 18 to stay whether or not they have “the right to rent”. Lodgers who take a room within accommodation that they share with the landlord are not caught by the Scheme as long as they do not pay the rent.
Incidentally, rent is defined as “any financial transaction in the nature of rent”. Nature of rent is not defined.
To avoid boredom and to leave space for controversy, the Scheme only applies to properties that the occupier will use as their only or main home. If the occupier lives in multiple homes, landlords should consider “how much time the occupier will spend at the property, their personal and family ties to the home and how much it will be used. Relevant factors will include whether they will keep most of their belongings there, whether they will be registered with a doctor/dentist from that address, … whether their partner or children live there, or they receive post there.” Needless to say, partner, children and post would drag one down.
A touching provision on immediate family members mentions that where the landlord is the occupier’s parents there is “no need to undertake a right to rent check”. It is not clear, though, if the landlord will not be liable for the occupancy of the child if the child requires leave to remain but does not have it. A good immigration lawyer might be able to wrestle you out of it, but you really need someone sharp and on the ball.
