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Eviction without court order: irrational answer to the wrong question

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First they came for the squatters. Then they came for the illegal immigrants. Soon they will come for everyone in rented accommodation. The Government’s apparent intention in the forthcoming Immigration Bill to allow landlords (in England) to throw illegal immigrants out without a court order matters less in practical legal terms (arguably it doesn’t make that much practical difference) than in terms of incursions into the principle that courts should oversee the relationships between landlord and tenant because of their inherent inequality. 

The legislation is intended to deal with landlords who find their tenants do not have the “right to rent” (under the Immigration Act 2014) or that their perfectly legal right to remain has come to an end. Eviction would thus become a summary matter. Except that, in realistic scenarios, it wouldn’t.

The proposed legislation means that the right to evict summarily will be triggered when the Home Office issues a notice that the tenant “no longer has the right to rent in the UK”. The usual two-month notice period for an assured shorthold tenancy does not apply. 

The legislation, however, would not give landlords special powers to physically remove the occupier. They would be still governed by the Protection from Eviction Act 1977 – intended to prevent Rachman-like landlords sending round the boys. They could not forcibly remove them nor go in and change the locks.

If the occupier holds out, there will be no right to disregard the protections of the 1977 Act. The landlord must still go for a court order. So to that extent the “eviction without court order” is useless, if removing court scrutiny is the aim. The court will retain a last say – and the inadequacies of the new legislation may be put under examination and found very much wanting (as Giles Peaker notes; see reference below).

The proposed legislation is at one with the Government’s obsession with keeping interfering judges out of its business and that is where its threat lies – to the principle of the rule of law and the right to justice. If you remove these rights from vulnerable people in very difficult situations (even if they are deemed to be acting “unlawfully” by seeking to remain in the country), where would the Government stop in removing legal scrutiny?

Powers curbed
The paradox is that if the Government is determined “to crack down on rogue landlords who make money out of illegal immigration – exploiting vulnerable people and undermining our immigration system” (announcement here), powers are available that are effective in dealing with the problem – powers the Government has just watered down to protect landlords.

The Government has said: “The forthcoming [immigration] legislation will create a blacklist of persistent rogue landlords and letting agents, helping councils to focus their enforcement action on where it is most needed, and keeping track of those who have been convicted of housing offences.” Meanwhile it has blunted powers brought in by the Labour Government that had just such an effect – the exposure of rogue landlords accommodating illegal immigrants and potentially aiding people trafficking.

Among various dodgy documents and devices the outgoing Coalition Government passed with minimal oversight during the dying days of the 2014-15 parliamentary session was a subtle change to local authorities’ powers to license private lettings in designated areas. (Selective Licensing of Houses (Additional Conditions) (England) Order 2015

It was announced by Brandon Lewis, the Minister of State for Housing, but largely unnoticed – except by landlords, who were cock-a-hoop. “Rogue landlords” must have been even more cockahoop. Selective licensing was a power given to local authorities under Sections 79, 80 and 81 of Labour’s Housing Act 2004 to require landlords in designated areas be licensed. The intention was to allow local authorities to improve areas suffering poor quality privately rented housing – meaning badly managed accommodation suffering criminality or anti-social behaviour.

The licensing could be imposed if it would “contribute to the improvement of the social or economic conditions in the area” or “that the area is experiencing a significant and persistent problem caused by anti-social behaviour” which could be improved by landlords taking action – or not encouraging it in the first place. Local residents, landlords and tenants must be consulted if a licensing scheme is introduced in a particular area.

It was a triumph of localism, targeted wherever  local councils thought it should be but not mandated if they thought it shouldn’t. And it was also useful because often those areas (officially of “low housing demand”) were also the areas concealing those very undocumented people the Government now seeks to root out.

The London borough of Newham, for example was the first to include the whole borough in its scheme. This allows officials to visit unlicensed premises based on intelligence gathering (ie to show they aren’t owner occupied and hence should be licensed). It is said they take along immigration officers on some of these visits for the very good reason that this is the sort of low quality accommodation that “rogue landlords” offer to undocumented people – and which they want to keep well below the radar of the authorities. It’s also a useful way of discovering health and safety hazards.

With its deregulating hat on, the Government seeks to curb this sort of power for local authorities, deeming it too bureaucratic an imposition on landlords – yet in another part of the Government forest, it is imposing absurdly bureaucratic duties on every landlord to check the immigration status of their tenants. Selective licensing would be an ideal way of dealing with the problem of illegal immigration. Left hand, right hand – not quite meeting in the middle where the brain is.

Twitter: alrich0660

Note: The High Court has now (February 2019) ruled that the whole “right to rent” scheme is unlawful under the European Convention on Human Rights:

“In the circumstances, there will be: i) an Order pursuant to s.4 Human Rights Act 1998 declaring that sections 20 – 37 of the Immigration Act 2014 are incompatible with Article 14 ECHR in conjunction with Article 8 ECHR; and
ii) An Order declaring that a decision by the Defendant [teh Government] to commence the Scheme represented by sections 20 – 37 of the Immigration Act 2014 in Scotland, Wales or Northern Ireland without further evaluation of its efficacy and discriminatory impact would be irrational and would constitute a breach of s. 149 Equality Act 2010.”

R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin)

Note: The Government has added “large amounts of inward migration” to its list of criteria for licensing areas as well as poor property and deprivation (extending the original criteria from low demand and antisocial behaviour. This does not, of course, necessarily mean foreign immigration. Despite the success of Newham’s scheme (in general in improving housing, not simply in the area of illegal immigration), the Government has made it more difficult for local authorities to go down Newham’s route. So councils must seek ministerial permission for “any selective licensing scheme which would cover more than 20% of their geographical area or would affect more than 20% of privately rented homes in the local authority area”. The contradictions of government policy are pointed up in this piece on the Shelter website.

Here Giles Peaker of Nearly Legal considers the likely proposals in the Immigration Bill and says: “And there I collapse, it is impossible to satirise, or even mock, such a catatonically dim-witted, legally illiterate, wholly unnecessary, thoughtless proposal.”  

Also See Philippa Graham here for background on the likely Bill.

Selective licensing explained: House of Commons Briefing
Delegated Legislation Committee 23 March 2015: Brandon Lewis announces changes
The Housing (Wales) Act 2014 introduced phased licensing throughout the principality

About alrich

Journalist and blogger on legal and financial/economics issues

One response »

  1. Pingback: Right to rent ruled unlawful – an innovative judgment | AL's LAW

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