Immigration - Exceptions to Civil Penalty Scheme
Dear Mr Bassie,
I read in your column recently where you mentioned a Civil Penalty Scheme as it relates to the new 'right to rent' policies in the United Kingdom. You had mentioned that there may be exceptions to this scheme, and I would like for you to outline these.
As I had stated in a previous article, there is a policy with respect to the private renting of accommodation to unqualified immigrants, and there are possible penalties that a landlord or his/her agent may incur through the Civil Penalty Scheme.
A person will have the right to rent in the United Kingdom provided he or she is lawfully present in accordance with immigration laws. Any landlord and/or agent who is in breach of the new right-to-rent policies may be liable for a civil penalty. In this code, the restriction and civil penalty provisions are referred to as 'The Scheme'.
There are some agreements that are excluded from the scheme such as some types of property and residential tenancy agreements. In particular, there are agreements for accommodation involving local authorities and residential tenancy agreements which grant a right of occupation in any circumstances where the accommodation is arranged by a local authority that is acting in response to a statutory duty owed to an individual, or which is exercising a relevant power with the intention of providing accommodation to a person who is homeless - or who is threatened with homelessness - these situations are exempt from the scheme. This includes instances where the occupier is to be placed into private rented property by the local authority.
As defined by the law, a 'relevant power' means a power that is exercised for, or in connection with, the purpose of providing accommodation to a person who is homeless or is threatened with homelessness.
Another exception to the code on illegal immigrants and private rented accommodation refers to social housing. Residential tenancy agreements which grant a right of occupation in social housing by virtue of legislative provisions as to housing and the landlord has already been required to consider a person's immigration status before allocating the property, or where a tenant has such an existing tenancy and is seeking to exchange it for an alternative tenancy, this is exempt from the scheme.
Exceptions also exist with care homes, hospitals and hospices and continuing health-care provision. Accommodation provided in care homes, hospitals, and hospices are exempt from the scheme. Accommodation arranged by relevant National Health Service bodies which are acting in response to a statutory duty owed towards individuals as part of a package of continuing health care is also exempt from the scheme.
Also, residential tenancies that grant a right of occupation in a hostel or refuge are exempt from the scheme. This exemption applies to hostels and refuges that are managed by social landlords, voluntary organisations, or charities, or which are not operated on a commercial basis and whose operating costs are provided either wholly or in part by a government department, or agency, or a local authority.
In addition, agreements to which the Mobile Home Acts 1983 applies, that is an agreement under which a person is entitled to station a mobile home on a site and use it as their only or main home, are exempt. However, should a mobile home owner decide to let his or her mobile home for use by another adult, this residential tenancy agreement will be subject to the scheme.
There is also an exception where a residential tenancy agreement that grants a right of occupation in accommodation that is provided by an employer to an employee, or by a body providing training to an individual in connection with that training, is exempt from the scheme.
Also student accommodation is exempt. All halls of residence, whether the landlord is an educational institution or private accommodation provider, are exempt from the scheme, as is any accommodation provided for students directly by a higher or further educational institution.
Residential tenancy agreements are also excluded where a student has been nominated to occupy the accommodation by a higher or further educational institution, or a body established for charitable purposes only. Such a nomination could take a variety of forms, but will require communication between the institute and the landlord providing confirmation that the student will take up occupation under the residential tenancy agreement. Landlords should retain a copy of the nomination document relied upon to support a claim to this exemption.
There is also an exemption from the scheme with respect to certain private rented accommodation as it relates to long leases. Leases that grant a right of occupation for a term of seven years or more are exempt. Such arrangements are more akin to home ownership than traditional landlord and tenant arrangements. An agreement will not grant a right of occupation for a term of seven years or more if the agreement can be terminated at the option of a party before the end of seven years from the start of the term. A lease containing a break clause will include an option to terminate and so does not benefit from the exemption. A lease which contains a forfeiture or right of re-entry for the landlord is not considered to include an option to terminate and so is excluded from the scheme.
I hope this helps.
John S. Bassie is a barrister/attorney-at-law who practises law in Jamaica. He is a justice of the peace, a Supreme Court-appointed mediator, a fellow of the Chartered Institute of Arbitrators, a chartered arbitrator and a member of the Immigration Law Practitioners Association (UK). Email:email@example.com.