Immigration Bill (HL Bill 98)

Part 3 Access to services etc

CHAPTER 1 Residential tenancies

Key interpretation

20 5Residential tenancy agreement

(1) This section applies for the purposes of this Chapter.

(2) “Residential tenancy agreement” means a tenancy which—

(a) grants a right of occupation of premises for residential use,

(b) provides for payment of rent (whether or not a market rent), and

(c) 10is not an excluded agreement.

(3) In subsection (2), “tenancy” includes—

(a) any lease, licence, sub-lease or sub-tenancy, and

(b) an agreement for any of those things,

and in this Chapter references to “landlord” and “tenant”, and references to
15premises being “leased”, are to be read accordingly.

(4) For the purposes of subsection (2)(a), an agreement grants a right of occupation
of premises “for residential use” if, under the agreement, one or more adults
have the right to occupy the premises as their only or main residence (whether
or not the premises may also be used for other purposes).

(5) 20In subsection (2)(b) “rent” includes any sum paid in the nature of rent.

(6) In subsection (2)(c) “excluded agreement” means any agreement of a
description for the time being specified in Schedule 3.

(7) The Secretary of State may by order amend Schedule 3 so as to—

(a) add a new description of excluded agreement,

(b) 25remove any description, or

(c) amend any description.

21 Persons disqualified by immigration status or with limited right to rent

(1) For the purposes of this Chapter, a person (“P”) is disqualified as a result of
their immigration status from occupying premises under a residential tenancy
30agreement if—

(a) P is not a relevant national, and

(b) P does not have a right to rent in relation to the premises.

(2) P does not have a “right to rent” in relation to premises if—

(a) P requires leave to enter or remain in the United Kingdom but does not
35have it, or

(b) P’s leave to enter or remain in the United Kingdom is subject to a
condition preventing P from occupying the premises.

(3) But P is to be treated as having a right to rent in relation to premises (in spite
of subsection (2)) if the Secretary of State has granted P permission for the
purposes of this Chapter to occupy premises under a residential tenancy
agreement.

(4) 5References in this Chapter to a person with a “limited right to rent” are
references to—

(a) a person who has been granted leave to enter or remain in the United
Kingdom for a limited period, or

(b) a person who—

(i) 10is not a relevant national, and

(ii) is entitled to enter or remain in the United Kingdom by virtue
of an enforceable EU right or of any provision made under
section 2(2) of the European Communities Act 1972.

(5) In this section “relevant national” means—

(a) 15a British citizen,

(b) a national of an EEA State other than the United Kingdom, or

(c) a national of Switzerland.

Penalty notices

22 Persons disqualified by immigration status not to be leased premises

(1) 20A landlord must not authorise an adult to occupy premises under a residential
tenancy agreement if the adult is disqualified as a result of their immigration
status.

(2) A landlord is to be taken to “authorise” an adult to occupy premises in the
circumstances mentioned in subsection (1) if (and only if) there is a
25contravention of this section.

(3) There is a contravention of this section in either of the following cases.

(4) The first case is where a residential tenancy agreement is entered into that, at
the time of entry, grants a right to occupy premises to—

(a) a tenant who is disqualified as a result of their immigration status,

(b) 30another adult named in the agreement who is disqualified as a result of
their immigration status, or

(c) another adult not named in the agreement who is disqualified as a
result of their immigration status (subject to subsection (6)).

(5) The second case is where—

(a) 35a residential tenancy agreement is entered into that grants a right to
occupy premises on an adult with a limited right to rent,

(b) the adult later becomes a person disqualified as a result of their
immigration status, and

(c) the adult continues to occupy the premises after becoming disqualified.

(6) 40There is a contravention as a result of subsection (4)(c) only if—

(a) reasonable enquiries were not made of the tenant before entering into
the agreement as to the relevant occupiers, or

(b) reasonable enquiries were so made and it was, or should have been,
apparent from the enquiries that the adult in question was likely to be
a relevant occupier.

(7) Any term of a residential tenancy agreement that prohibits occupation of
5premises by a person disqualified by their immigration status is to be ignored
for the purposes of determining whether there has been a contravention of this
section if—

(a) the landlord knew when entering into the agreement that the term
would be breached, or

(b) 10the prescribed requirements were not complied with before entering
into the agreement.

(8) It does not matter for the purposes of this section whether or not—

(a) a right of occupation is exercisable on entering into an agreement or
from a later date;

(b) 15a right of occupation is granted unconditionally or on satisfaction of a
condition.

(9) A contravention of this section does not affect the validity or enforceability of
any provision of a residential tenancy agreement by virtue of any rule of law
relating to the validity or enforceability of contracts in circumstances involving
20illegality.

(10) In this Chapter—

• “post-grant contravention” means a contravention in the second case
  mentioned in subsection (5);

• “pre-grant contravention” means a contravention in the first case
  25mentioned in subsection (4);

• “relevant occupier”, in relation to a residential tenancy agreement, means
  any adult who occupies premises under the agreement (whether or not
  named in the agreement).

23 Penalty notices: landlords

(1) 30If there is a contravention of section 22, the Secretary of State may give the
responsible landlord a notice requiring the payment of a penalty.

(2) The amount of the penalty is such an amount as the Secretary of State considers
appropriate, but the amount must not exceed £3,000.

(3) “Responsible landlord” means—

(a) 35in relation to a pre-grant contravention, the landlord who entered into
the residential tenancy agreement;

(b) in relation to a post-grant contravention, the person who is the landlord
under the agreement at the time of the contravention.

(4) But if there is a superior landlord in relation to the residential tenancy
40agreement who is responsible for the purposes of this section, the “responsible
landlord” means that superior landlord (and references to the landlord in the
following provisions of this Chapter are to be read accordingly).

(5) A superior landlord is “responsible for the purposes of this section” if
arrangements in writing have been made in relation to the residential tenancy
45agreement between the landlord and the superior landlord under which the
superior landlord accepts responsibility for—

(a) contraventions of section 22 generally, or

(b) contraventions of a particular description and the contravention in
question is of that description.

(6) The Secretary of State may by order amend the amount for the time being
5specified in subsection (2).

24 Excuses available to landlords

(1) This section applies where a landlord is given a notice under section 23
requiring payment of a penalty.

(2) Where the notice is given for a pre-grant contravention, the landlord is excused
10from paying the penalty if the landlord shows that—

(a) the prescribed requirements were complied with before the residential
tenancy agreement was entered into, or

(b) a person acting as the landlord’s agent is responsible for the
contravention (see section 25(2)).

(3) 15The prescribed requirements may be complied with for the purposes of
subsection (2)(a) at any time before the residential tenancy agreement is
entered into.

(4) But where compliance with the prescribed requirements discloses that a
relevant occupier is a person with a limited right to rent, the landlord is
20excused under subsection (2)(a) only if the requirements are complied with in
relation to that occupier within such period as may be prescribed.

(5) The excuse under subsection (2)(a) or (b) is not available if the landlord knew
that entering into the agreement would contravene section 22.

(6) Where the notice is given for a post-grant contravention, the landlord is
25excused from paying the penalty if any of the following applies—

(a) the landlord has notified the Secretary of State of the contravention as
soon as reasonably practicable;

(b) a person acting as the landlord’s agent is responsible for the
contravention;

(c) 30the eligibility period in relation to the limited right occupier whose
occupation caused the contravention has not expired.

(7) For the purposes of subsection (6)(a), the landlord is to be taken to have
notified the Secretary of State of the contravention “as soon as reasonably
practicable” if the landlord—

(a) 35complied with the prescribed requirements in relation to each limited
right occupier at the end of the eligibility period, and

(b) notified the Secretary of State of the contravention without delay on it
first becoming apparent that the contravention had occurred.

(8) Notification under subsection (6)(a) must be in the prescribed form and
40manner.

(9) In this Chapter “limited right occupier”, in relation to a residential tenancy
agreement, means a relevant occupier who had a limited right to rent at the
time when the occupier was first granted a right to occupy the premises under
the agreement.

25 Penalty notices: agents

(1) Subsection (3) applies where—

(a) a landlord contravenes section 22, and

(b) a person acting as the landlord’s agent (“the agent”) is responsible for
5the contravention.

(2) For the purposes of this Chapter, an agent is responsible for a landlord’s
contravention of section 22 if (and only if)—

(a) the agent acts in the course of a business, and

(b) under arrangements made with the landlord in writing, the agent was
10under an obligation for the purposes of this Chapter to comply with the
prescribed requirements on behalf of the landlord.

(3) The Secretary of State may give the agent a notice requiring the agent to pay a
penalty.

(4) The amount of the penalty is such an amount as the Secretary of State considers
15appropriate, but the amount must not exceed £3,000.

(5) The Secretary of State may by order amend the amount for the time being
specified in subsection (4).

26 Excuses available to agents

(1) This section applies where an agent is given a notice under section 25 requiring
20payment of a penalty.

(2) Where the notice is given for a pre-grant contravention, the agent is excused
from paying the penalty if the agent shows that the prescribed requirements
were complied with before the residential tenancy agreement was entered into.

(3) The prescribed requirements may be complied with for the purposes of
25subsection (2) at any time before the residential tenancy agreement is entered
into.

(4) But where compliance with the prescribed requirements discloses that a
relevant occupier is a person with a limited right to rent, the agent is excused
under subsection (2) only if the requirements are complied with in relation to
30that occupier within such period as may be prescribed.

(5) The excuse under subsection (2) is not available if the agent—

(a) knew that the landlord would contravene section 22 by entering into
the agreement,

(b) had sufficient opportunity to notify the landlord of that fact before the
35landlord entered into the agreement, but

(c) did not do so.

(6) Where the notice is given for a post-grant contravention, the agent is excused
from paying the penalty if either of the following applies—

(a) the agent has notified the Secretary of State and the landlord of the
40contravention as soon as reasonably practicable;

(b) the eligibility period in relation to the limited right occupier whose
occupation caused the contravention has not expired.

(7) For the purposes of subsection (6)(a), the agent is to be taken to have notified
the Secretary of State and the landlord of the contravention “as soon as
reasonably practicable” if the agent—

(a) complied with the prescribed requirements in relation to each limited
5right occupier at the end of the eligibility period, and

(b) notified the Secretary of State and the landlord of the contravention
without delay on it first becoming apparent that the contravention had
occurred.

(8) Notification under subsection (6)(a) must be in the prescribed form and
10manner.

27 Eligibility period

(1) An eligibility period in relation to a limited right occupier is established if the
prescribed requirements are complied with in relation to the occupier.

(2) An eligibility period established under subsection (1) may be renewed (on one
15or more occasions) by complying with the prescribed requirements again.

(3) But an eligibility period in relation to a limited right occupier is only
established or renewed under this section at any time if it reasonably appears
from the information obtained in complying with the prescribed requirements
at that time that the occupier is a person with a limited right to rent.

(4) 20The length of an eligibility period established or renewed under this section in
relation to a limited right occupier is the longest of the following periods—

(a) the period of one year beginning with the time when the prescribed
requirements were last complied with in relation to the occupier;

(b) so much of any leave period as remains at that time;

(c) 25so much of any validity period as remains at that time.

(5) In subsection (4)—

• “leave period” means a period for which the limited right occupier was
  granted leave to enter or remain in the United Kingdom;

• “validity period” means the period for which an immigration document
  30issued to the limited right occupier by or on behalf of the Secretary of
  State is valid.

(6) In subsection (5) “immigration document” means a document of a prescribed
description which—

(a) is issued as evidence that a person who is not a national of an EEA state
35or Switzerland is entitled to enter or remain in the United Kingdom by
virtue of an enforceable EU right or of any provision made under
section 2(2) of the European Communities Act 1972, or

(b) grants to the holder a right to enter or remain in the United Kingdom
for such period as the document may authorise.

28 40Penalty notices: general

(1) The Secretary of State may give a penalty notice—

(a) to a landlord under section 23 without having established whether the
landlord is excused from paying the penalty under section 24;

(b) to an agent under section 25 without having established whether the
45agent is excused from paying the penalty under section 26.

(2) A penalty notice must—

(a) be in writing,

(b) state why the Secretary of State thinks the recipient is liable to the
penalty,

(c) 5state the amount of the penalty,

(d) specify a date, at least 28 days after the date specified in the notice as
the date on which it is given, before which the penalty must be paid,

(e) specify how a penalty must be paid,

(f) explain how the recipient may object to the penalty or make an appeal
10against it, and

(g) explain how the Secretary of State may enforce the penalty.

(3) A separate penalty notice may be given in respect of each adult disqualified by
their immigration status in relation to whom there is a contravention of section
22.

(4) 15Where a penalty notice is given to two or more persons who jointly constitute
the landlord or agent in relation to a residential tenancy agreement, those
persons are jointly and severally liable for any sum payable to the Secretary of
State as a penalty imposed by the notice.

(5) A penalty notice may not be given in respect of any adult if—

(a) 20the adult has ceased to occupy the premises concerned, and

(b) a period of 12 months or more has passed since the time when the adult
last occupied the premises,

but this subsection is not to be taken as affecting the validity of a penalty notice
given before the end of that period.

(6) 25Subsection (5) does not apply to a penalty notice given after the end of the 12
month period mentioned in that subsection if—

(a) it is a new penalty notice given by virtue of section 29(6)(b) on the
determination of an objection to another penalty notice, and

(b) that other penalty notice was given before the end of the period.

30Objections, appeals and enforcement

29 Objection

(1) The recipient of a penalty notice (“the recipient”) may object on the ground
that—

(a) the recipient is not liable to the imposition of the penalty,

(b) 35the recipient is excused by virtue of section 24 or 26, or

(c) the amount of the penalty is too high.

(2) An objection must be made by giving a notice of objection to the Secretary of
State.

(3) A notice of objection must—

(a) 40be in writing,

(b) give the reasons for the objection,

(c) be given in the prescribed manner, and

(d) be given before the end of the prescribed period.

(4) In considering a notice of objection to a penalty the Secretary of State must have
regard to the code of practice under section 32.

(5) On considering a notice of objection the Secretary of State may—

(a) cancel the penalty,

(b) 5reduce the penalty,

(c) increase the penalty, or

(d) determine to take no action.

(6) After reaching a decision as to how to proceed under subsection (5) the
Secretary of State must—

(a) 10notify the recipient of the decision (including the amount of any
increased or reduced penalty) before the end of the prescribed period
or such longer period as the Secretary of State may agree with the
recipient, and

(b) if the penalty is increased, issue a new penalty notice under section 23
15or (as the case may be) section 25.

30 Appeals

(1) The recipient may appeal to the court on the ground that—

(a) the recipient is not liable to the imposition of a penalty,

(b) the recipient is excused payment as a result of section 24 or 26, or

(c) 20the amount of the penalty is too high.

(2) The court may—

(a) allow the appeal and cancel the penalty,

(b) allow the appeal and reduce the penalty, or

(c) dismiss the appeal.

(3) 25An appeal is to be a re-hearing of the Secretary of State’s decision to impose a
penalty and is to be determined having regard to—

(a) the code of practice under section 32 that has effect at the time of the
appeal, and

(b) any other matters which the court thinks relevant (which may include
30matters of which the Secretary of State was unaware).

(4) Subsection (3) has effect despite any provisions of rules of court.

(5) An appeal may be brought only if the recipient has given a notice of objection
under section 29 and the Secretary of State—

(a) has determined the objection by issuing to the recipient the penalty
35notice (as a result of increasing the penalty under section 29(5)(c)),

(b) has determined the objection by—

(i) reducing the penalty under section 29(5)(b), or

(ii) taking no action under section 29(5)(d), or

(c) has not informed the recipient of a decision before the end of the period
40that applies for the purposes of section 29(6)(a).

(6) An appeal must be brought within the period of 28 days beginning with the
relevant date.

(7) Where the appeal is brought under subsection (5)(a), the relevant date is the
date specified in the penalty notice issued in accordance with section 29(6)(b)
as the date on which it is given.

(8) Where the appeal is brought under subsection (5)(b), the relevant date is the
5date specified in the notice informing the recipient of the decision for the
purposes of section 29(6)(a) as the date on which it is given.

(9) Where the appeal is brought under subsection (5)(c), the relevant date is the
date on which the period that applies for the purposes of section 29(6)(a) ends.

(10) In this section “the court” means—

(a) 10the county court, if the appeal relates to a residential tenancy
agreement in relation to premises in England and Wales;

(b) the sheriff, if the appeal relates to a residential tenancy agreement in
relation to premises in Scotland;

(c) a county court in Northern Ireland, if the appeal relates to a residential
15tenancy agreement in relation to premises in Northern Ireland.

31 Enforcement

(1) This section applies where a sum is payable to the Secretary of State as a
penalty under this Chapter.

(2) In England and Wales the penalty is recoverable as if it were payable under an
20order of the county court in England and Wales.

(3) In Scotland the penalty may be enforced in the same manner as an extract
registered decree arbitral bearing a warrant for execution issued by the sheriff
court of any sheriffdom in Scotland.

(4) In Northern Ireland the penalty is recoverable as if it were payable under an
25order of a county court in Northern Ireland.

(5) Where action is taken under this section for the recovery of a sum payable as a
penalty under this Chapter, the penalty is—

(a) in relation to England and Wales, to be treated for the purposes of
section 98 of the Courts Act 2003 (register of judgments and orders etc)
30as if it were a judgment entered in the county court;

(b) in relation to Northern Ireland, to be treated for the purposes of Article
116 of the Judgments Enforcement (Northern Ireland) Order 1981 (S.I.
1981/226 (N.I. 6)) (register of judgments) as if it were a judgment in
respect of which an application has been accepted under Article 22 or
3523(1) of that Order.

(6) Money paid to the Secretary of State by way of a penalty must be paid into the
Consolidated Fund.

Codes of practice

32 General matters

(1) 40The Secretary of State must issue a code of practice for the purposes of this
Chapter.

(2) The code must specify factors that the Secretary of State will consider when
determining the amount of a penalty imposed under this Chapter.

(3) The code may contain guidance about—

(a) factors that the Secretary of State will consider when determining
5whether—

(i) a residential tenancy agreement grants a right of occupation of
premises for residential use, or

(ii) a person is occupying premises as an only or main residence;

(b) the reasonable enquiries that a landlord should make to determine the
10identity of relevant occupiers in relation to a residential tenancy
agreement (so far as they are not named in the agreement);

(c) any other matters in connection with this Chapter that the Secretary of
State considers appropriate.

(4) Guidance under subsection (3)(a) may in particular relate to the treatment for
15the purposes of this Chapter of arrangements that are made in connection with
holiday lettings or lettings for purposes connected with business travel.

(5) The Secretary of State must from time to time review the code and may revise
and re-issue it following a review.

(6) The code (or revised code)—

(a) 20may not be issued unless a draft has been laid before Parliament, and

(b) comes into force in accordance with provision made by order of the
Secretary of State.

33 Discrimination

(1) The Secretary of State must issue a code of practice specifying what a landlord
25or agent should or should not do to ensure that, while avoiding liability to pay
a penalty under this Chapter, the landlord or agent also avoids contravening—

(a) the Equality Act 2010, so far as relating to race, or

(b) the Race Relations (Northern Ireland) Order 1997 (S.I. 1997/869S.I. 1997/869 (N.I.
6)).

(2) 30The Secretary of State must from time to time review the code and may revise
and re-issue it following a review.

(3) Before issuing the code (or a revised code) the Secretary of State must consult—

(a) the Commission for Equality and Human Rights,

(b) the Equality Commission for Northern Ireland, and

(c) 35such persons representing the interests of landlords and tenants as the
Secretary of State considers appropriate.

(4) After consulting under subsection (3) the Secretary of State must—

(a) publish a draft code, and

(b) consider any representations made about the published draft.

(5) 40The code (or revised code)—

(a) may not be issued unless a draft has been laid before Parliament
(prepared after considering representations under subsection (4)(b)
and with or without modifications to reflect the representations), and

(b) comes into force in accordance with provision made by order of the
45Secretary of State.