Eviction of a tenant with no right to rent

From 1 December 2016, the Immigration Act 2016 amends the Housing Act 1988, the Rent Act 1977 and the Protection from Eviction Act 1977 so as to reduce the security of tenure of occupiers who do not have a right to rent.

The procedure for eviction depends on whether:

• all the occupiers lack a right to rent

• one or more – but not all – of the occupiers lack a right to rent

Fast-track eviction where all occupiers have no right to rent

From 1 December 2016, landlords may use a ‘fast track’ eviction process where all of the occupiers under a tenancy or licence have no right to rent.[1] This can only be used after the Home Office has given a disqualification notice (or notices) to the landlord that complies with section 33D(2) of the Immigration Act 2014.

A ‘section 33D(2) notice' must:

• identify the occupier (or all of them, including children of the household, if there is more than one), and

• state that the occupier or occupiers are disqualified from renting because they have no right to rent

The Home Office notice ‘converts’ the occupier’s or occupiers’ status to that of an excluded occupier and allows the landlord to end the agreement by serving a minimum of 28 days’ notice, on a prescribed form.[2] The disqualification notice must be attached to the prescribed form.

The conversion to excluded occupier status applies to all forms of tenure in the private rented sector (except those that are excluded occupiers already).

The landlord’s notice takes effect as an order of the High Court. At the expiry of the landlord's notice, the landlord can evict the occupier without a court order and without applying to the court for bailiffs to enforce possession. They must do this lawfully and peaceably.

If the occupiers have not left on expiry of the landlord's notice and the landlord wishes to avoid the risk of committing an offence under the Criminal Law Act 1977, they can apply for permission to enforce it through a writ of possession issued in the High Court. A copy of the Home Office 'section 33D(2) notice' must be filed at court with any application for permission to issue the writ of possession.[3]

At least one occupier has a right to rent

Where at least one occupier has no right to rent, the landlord may lawfully take possession depending on the security of tenure status of the occupier.

Additional grounds for possession have been added to the relevant schedules of the Rent Act 1977 and Housing Act 1988.

How a landlord may gain possession depends on the occupier's security of tenure.

Where a landlord evicts a tenant/licensee without following the correct procedure applicable to the particular type of tenancy or licence, this is an illegal eviction.

The government has successfully appealed the previous High Court ruling[4] that the right to rent scheme was unlawfully discriminatory and sections 20-37 Immigration Act 2014 were incompatible with Article 14 ECHR in conjunction with Article 8 ECHR.

On 21 April 2020, the Court of Appeal reversed the High Court decision and ruled that the:[5]

• right to rent scheme could cause discrimination, but it was lawful and justified as proportionate means of achieving the scheme's legitimate objective

• scheme was capable of being operated proportionally in most individual cases

In obiter comments relating to an earlier case, connected to the original challenge against the right to rent scheme before the High Court, the High Court stated that the service of a ‘no right to rent’ notice by the Secretary of State, while amounting to direct discrimination on the basis of race and nationality under the Equality Act 2010, was justified by provisions of the Immigration Act 2014 and not covered by section 29 of the Equality Act 2010.[6]

Only advisers authorised by the Office of the Immigration Services Commissioner are allowed to provide advice on immigration matters, such as obtaining leave to enter and remain in the UK, or challenging a decision of the Home Office.

The Joint Council for the Welfare of Immigrants (JCWI) runs a free and confidential Helpline for undocumented migrants on Mondays, Tuesdays and Thursdays, from 10am to 1pm, on 0207 553 7470. It is specifically aimed at people who are unsure about their immigration status and require specialist immigration advice on whether they can obtain permission to rent from the Home Office, the strength of their claim to regularise their status in the UK, and how to take their case further.