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Five Years In Prison

I’m in Madrid this week and I’m struck by the level of interest here in the Calais frontier debacle and humanitarian crisis.  There are regular updates on TV news and the national newspaper El Pais featured a full page article on the government’s latest proposals for yet another Immigration Bill.  Even the waiter in my local café was telling me about the five year prison sentence that awaits UK landlords.  Of course the logic that there is an immigration crisis in Calais and the answer is to send landlords to prison for five years is beyond the cognition of anyone but a politician with a careful eye on UKIP and winning a referendum on UK membership of the EU. That hackneyed phrase wolfwhistle politics comes to mind.

So what exactly did the government announce on 3 August?  Landlords in England who let to individuals who lose the right to live in the UK must evict them.  The Home Office will issue a notice confirming that the tenant no longer has the right to live in the UK and that will trigger the right for the landlord to end the tenancy without a court order in some circumstances.  The NLA successfully campaigned to ensure that right to rent regulations – currently in force in the West Midlands and due to be rolled out nationally – should not put landlords in this potentially dangerous situation. How would ministers like to have somebody in one of their houses who is threatened with eviction with the unpredictable or threatening behaviour that could ensue? Landlords are in the business of letting to and keeping tenants long term.  The Home Office is in the business of removing people who do not have the right to live here and it is simply unreasonable to expect landlords to evict tenants in this way.  The threat of 5 years imprisonment adds insult to injury.

This new measure raises a myriad of questions.  UK housing law has historically provided robust legal protections for tenants against instant eviction, the removal of this principal could contravene human rights legislation and is deeply undesirable in an advanced democracy.  What happens if the tenant is appealing, in what circumstances will a court order be required and who will pay for this expensive process?  Is the government’s auterior motive simply to deter landlords from letting to people with short term visas?  What will this mean for the vast numbers of overseas students who come to Britain for short term study and provide vital resources for the higher education sector?  Homeless, failed asylum seekers will become the charge of local authorities who doubtless will receive no additional resources to find them temporary housing – probably in the private rented sector.

The government argues that law abiding landlords have nothing to fear. They are targeting a criminal underworld that profits from individuals living in the UK illegally.  A blanket policy like this will likely have many unintended consequences.  Like my NLA colleagues, I have been supporting the ‘right to rent’ scheme because it required sensible and not unduly onerous assistance from landlords in dealing with illegal immigration.  Since December 2014, landlords in the West Midlands have been checking tenants’ right to rent at the start of a tenancy by photocopying one or two pieces of documentation and making use of a simple, accessible online system to request approval from the home office where necessary.  These checks last for one year and allow the landlord to issue a twelve month tenancy, even if the tenant’s visa is temporary.  I support the scheme because I want to encourage landlords to carry out tenant reference checks on all tenants.  These usually involve an ID check using a passport in any case.

A number of other unanticipated measures were announced. The government proposes to simplify how landlords prove they are fit and proper for licensing schemes. There is to be a national register of landlords and letting agents who have failed ‘fit and proper’ tests and there is to be a crackdown on landlords who fail to comply with minimum property standards.  It is rumoured that the latter could refer to a proposed change in the definition of a mandatory licensable house in multiple occupation.  The current definition is 5 or more people, in 2 or more households, living in 3 or more stories.  This is expected to be changed from three to two or more stories probably because of the propensity of two storey terraced houses in many urban areas.  Why have these measures appeared in an immigration announcement?   The home office is taking a close interest in the enforcement activities of boroughs like Newham, where one in every two enforcement visits to HMOs results in an arrest – in most cases for immigration offences.  So the home office is very keen to increase enforcement of HMOs.  But those of us who are accredited and have properties with 3 or 4 professional sharers which are therefore classed as additionally licensable HMOs are tired of being tarred with the same brush.  The local authority officers and home office civil servants see only poor practice and wrongly extrapolate that the whole HMO sector is similarly woeful.  Creating policy based on an understanding of poor practice makes for very bad regulation and is a deterrent to good landlords.

The proposed national register of unfit landlords and letting agents recognises a legitimate claim by some local authorities.  Currently landlords are only required to pass a fit and proper test if they have a mandatorily licensable HMO or where a local authority licensing scheme is in place.  A landlord could fail this test in one borough but still let property in another borough.  A national register would make it virtually impossible for an unfit landlord to get a license anywhere.  This could incentivise all local authorities to have a discretionary licensing scheme, an approach which the NLA opposes.  I would far rather see a light touch national landlord register where unfit landlords – like medical professionals – would lose their registration and not be allowed to rent anywhere in the UK.  Accreditation could be linked to the landlord’s registration and accredited landlords could be offered a more favourable tax regime.

I am very keen to see local authorities use their existing enforcement powers to deal with poor practice in the sector.  John Daley, creator of Southwark’s licensing scheme, argues that council officers see a landlord in court one day and the next day he is letting another deplorable property two streets away.  A national register of unfit landlords could better enable local authorities to keep tabs on such operators.  Of course, being on the register could have a devastating impact on your business.  What happens if you find yourself on the register unfairly or because of an administrative bungle?   Who will decide whether somebody is placed on the register and will there be an appeals process?  These shoot-from-the-hip announcements, carefully timed when opposition MPs and landlord spokespeople where likely to be on holiday, leave many questions still unanswered.

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