New Mandatory Ground for Possession due to Immigration Status and New Notice of Seeking Possession to be used from 1 December 2016 by Jane Talbot
Landlords seeking to evict tenants after 1 December 2016 (relying on any grounds) must use the new Notice Seeking Possession which has been amended to include reference to the new mandatory ground for possession, 7B (introduced by s41 Immigration Act 2016) which refers to tenants who obtain housing who have no right to remain immigration status (which landlords are obliged to check at the commencement of the tenancy). The Ground states:
Both of the following conditions are met in relation to a dwelling-house in England.
Condition 1 is that the Secretary of State has given a notice in writing to the landlord or, in the case of joint landlords, one or more of them which identifies:
(a) the tenant or, in the case of joint tenants, one or more of them, or
(b) one or more other persons aged 18 or over who are occupying the dwelling-house,
as a person or persons disqualified as a result of their immigration status from occupying the dwelling-house under the tenancy.
Condition 2 is that the person or persons named in the notice:
(a) fall within paragraph (a) or (b) of condition 1, and
(b) are disqualified as a result of their immigration status from occupying the dwelling-house under the tenancy.
For the purposes of this ground a person (“P”) is disqualified as a result of their immigration status from occupying the dwelling-house under the tenancy if:
(a) P is not a relevant national, and
(b) P does not have a right to rent in relation to the dwelling-house.
P does not have a right to rent in relation to the dwelling-house if:
(a) P requires leave to enter or remain in the United Kingdom but does not have it, or
(b) P’s leave to enter or remain in the United Kingdom is subject to a condition preventing P from occupying the dwelling-house.
But P is to be treated as having a right to rent in relation to a dwelling-house if the Secretary of State has granted P permission for the purposes of this ground to occupy a dwelling-house under an assured tenancy. In this ground “relevant national” means:
(a) a British citizen,
(b) a national of an EEA State other than the United Kingdom, or
(c) a national of Switzerland.”
The new form of notice can be found here http://www.legislation.gov.uk/uksi/2016/1118/made
The Court does not have power to dispense with service of a Notice Seeking Possession if Ground 7B is relied on.
If Ground 7B is made out, it is a mandatory ground for possession and therefore it is not for the Court to consider the reasonableness of making the Order. However, defences on the grounds of proportionality and or Equality Act 2010 could be raised.
If only one joint tenant lacks the required immigration status, the Court does have the power to transfer the tenancy to the other joint tenant’s sole name – the new section 10A of the Housing Act 1988 provides:
(1) This section applies on an application for an order for possession of a dwelling-house let on an assured tenancy if the court is satisfied that:
(a) Ground 7B in Schedule 2 is established,
(b) no other ground in that Schedule is established, or one or more grounds in Part 2 of that Schedule are established but it is not reasonable to make an order for possession on that ground or those grounds,
(c) the tenancy is a joint tenancy, and
(d) one or more of the tenants is a qualifying tenant.
(2) In subsection (1)(d) “qualifying tenant” means a person who (within the meaning of Ground 7B) is not disqualified as a result of the person’s immigration status from occupying the dwelling-house under the tenancy.
(3) The court may, instead of making an order for possession, order that the tenant’s interest under the tenancy is to be transferred so that it is held:
(a) if there is one qualifying tenant, by the qualifying tenant as sole tenant, or
(b) if there is more than one qualifying tenant, by all of them as joint tenants.
(4) The effect of an order under this section is that, from the time the order takes effect, the qualifying tenant or tenants:
(a) are entitled to performance of the landlord’s covenants under the tenancy, and
(b) are liable to perform the tenant’s covenants under the tenancy.
(5) The effect of an order under this section is that, from the time it takes effect, any other person who was a tenant under the tenancy before the order took effect:
(a) ceases to be entitled to performance of the landlord’s covenants under the tenancy, or
(b) ceases to be liable to perform the tenant’s covenants under the tenancy.
(6) Subsection (5) does not remove any right or liability of the person which accrued before the order took effect.
(7) An order under this section does not operate to create a new tenancy as between the landlord and the qualifying tenant or tenants.
(8) In particular, if the tenancy is a fixed term tenancy, the term comes to an end at the same time as if the order had not been made.”
Similar provisions have been inserted into the Rent Act 1977 (Case 10A).
Landlords are advised to update their precedents in readiness for 1 December to avoid challenges that the Notice is invalid as it is a form prescribed by statute and the new form should be used after that date even if not relying on the new Ground 7B.
Author: Jane Talbot