Changes to eviction processes ​and immigration appeals take effect in December

3 November 2016

NRPF client group will be affected by new measures

Regulations setting out the commencement dates of further provisions of the Immigration Act 2016​ have been made. We have previously reported what is already in force. Local authorities providing services to people with no recourse to public funds (NRPF) need to be aware of the measures that are likely to affect this client group, and will come into force on 1 December 2016: 

  • Landlords will be committing an offence if they are renting a property to a person with no immigration permission and do not take appropriate steps to end the tenancy when this is required - section 39.
  • In certain circumstances, landlords will be able to evict a person with no immigration permission without having to obtain a court order for possession of the property - section 40.
  • A person who has made a non-asylum human rights claim is highly unlikely to be awarded an in-country right of appeal - section 63.
Other measures relevant to local authorities more generally include the requirement to check the immigration status of people applying for private hire vehicle licenses (1 December 2016) and the English language requirements for public sector workers (21 November 2016). 

Right to rent and ending a private tenancy (England only)
In England, landlords are currently required to check the nationality and immigration status of all prospective tenants who apply to rent, sub-let or be a paying lodger. A landlord would be committing an offence by allowing a person who does not have any current immigration permission to rent a property. Section 39 of the Immigration Act 2016 builds on these provisions, creating an offence where the landlord knows or has reasonable cause to believe that their premises are being occupied by an adult who is disqualified from renting by their immigration status. 

The Home Office has published draft guidance for the courts that sets out what is expected of landlords in such circumstances in order to avoid prosecution for this offence:

  • A landlord will have four weeks from when they first knew (including being informed by the Home Office) or had reasonable cause to believe that a tenant or occupant of their property is a disqualified person to initiate action to remove the ineligible occupier(s) from the property.
  • If a landlord has been issued with a notice by the Home Office informing them that they are letting to a disqualified person then they may issue the person with a notice terminating the tenancy under section 33D of the Immigration Act 2014, giving the person 28 days notice to quit the property, and possession of the property may then be taken (without the need to obtain a court order); should the occupant fail to leave, the landlord would need to take formal steps to initiate eviction proceedings within 14 days.  
  • Where a landlord has already checked an occupant, who is found to have a limited right to rent and the eligibility period has not expired, they will not be committing an offence and will not be required to undertake a further check until the end of the eligibility period. However if the Home Office subsequently informs the landlord that the person is now disqualified from renting, they will need to undertake action to end the tenancy, as outlined in the guidance. 
Immigration appeals

Currently, when a person has made a protection (asylum) claim or human rights claim which is refused, they will have an in-country right of appeal so long as the claim has not been certified as clearly unfounded. Claims that are certified only attract a right of appeal once the person has left the UK. 

The majority of people supported by local authorities because they have NRPF, who need to make applications to regularise their stay in the UK, will be making human rights claims on the basis of their family or private life. When refused, the person is usually able to appeal whilst in the UK.

On 1 December 2016, section 63 of the Immigration Act 2016 will come into force which will mean that a person whose protection or human rights claim is refused will only receive an in-country right of appeal where there is a real risk of serious irreversible harm if they are removed from the UK before any appeal is concluded.​ The Home Office has not published guidance setting out how this will operate in practice, but it is likely to mean that asylum claimants will continue to receive an in-country right of appeal (unless their claim is certified as clearly unfounded), but people who have made non-asylum human rights claims are most likely to be refused without an in-country right of appeal and will only be able to appeal once they have left the UK. Therefore people making human rights applications who are supported by local authorities are unlikely to have an in-country right of appeal should their claim be refused. 

Implications for local authorities
When a family requests support from social services, the local authority will establish what accommodation options are available to them, and so must be aware of the new right to rent requirements and different legal process by which a landlord may choose to follow gain possession of a property when they have been informed by the Home Office that the adult occupants have no current immigration permission. As this may lead to a quicker eviction process, social services may be required to intervene and provide accommodation when a child's welfare is at risk at an earlier stage than they otherwise might have done. 

These changes are also expected to give rise to more requests for support from families following the loss of private rented accommodation, as the Home Office will be providing landlords with information about a tenant's immigration status that will require the landlord to take action to end the tenancy or risk committing an offence. Local authorities using NRPF Connect​ are encouraged to ensure that all referrals are recorded to help monitor the effect of these measures on presentations from people requesting support.

The changes to appeals are relevant because a local authority will need to undertake a human rights assessment to determine whether a person or family can continue to be provided with support when the person (or parent in a family group) has no immigration permission and has no further procedural right to pursue their human rights claim from within the UK. It seems likely that very few people who have made human rights applications will be issued with an in-country right of appeal when they are refused on or after 1 December 2016. However we are unable to provide more information about this until the Home Office publishes guidance about how this will operate in practice. For the time being, local authorities using NRPF Connect are advised to periodically chase up the progress of a pending application and ask the Home Office to clarify whether an in-country right of appeal has been awarded should the application be refused.