Privately Rented Accommodation for Incoming Spouse

[Richard W]

Am I right in thinking that the 2013 Immigration Bill would effectively outlaw the use of privately rented accommodation for adults when they first arrive on a settlement visa? There seems to be the chicken and egg situation that the incoming spouse cannot be granted permission to reside in the accommodation without a visa, and without permission to reside a visa will not be granted.

It is just conceivable that exceptional permission to rent will be granted to settlement visa applicants, but I can find no trace of such an intention.

[vinny]

That's an interesting chicken or egg point. Spouse visa holders cannot be granted without adequate accommodation being available. 16 may prevent spouse visa applicants from renting out privately before being granted leave. I suppose that the British/settled spouse may do the renting.

In other categories, 16(4)(a) would permit visa holders to rent from private landlords. But would they need accommodation to be available prior to obtain entry clearance too? Moreover, another problem may arise when they make a non-PEO application for further or indefinite leave to remain:

Given the UKBA's inability sometimes to confirm an applicant's immigration status, this may make private landlords as paranoid as Employers and create more homeless unemployable people.

[Richard W]

I suppose that the British/settled spouse may do the renting.

I had assumed that is what would be done. But the problem is that it is not just the tenant himself who will need to not be disqualified. All of the adults whom the landlord permits to reside at the property must themselves not be disqualified from renting. Clauses requiring that occupants not be disqualified are to be ignored for the purposes of the act. As far as I can tell, for the first penalty condition, it is the permitting, not the occupation, that creates the civil liability. (Civil liability presumably defeats anything resembling a mens [non] rea defence.)

[vinny]

That's a good point.

[samira_uk]

That's a good point.

It is nice. I have a question and I am confused about this rule.

This law requires that the tenant has valid visa or leave at the time of renting or for the whole renting period? For example, if there is only 6 months left of my leave at the time of my tenancy renewal, I cannot renew as the landlord rents only for 1 year????

[Richard W]

This law requires that the tenant has valid visa or leave at the time of renting or for the whole renting period? For example, if there is only 6 months left of my leave at the time of my tenancy renewal, I cannot renew as the landlord rents only for 1 year????

However, I believe that some form of one of the following will 'excuse' the landlord from paying the fine:

The landlord can avoid a fine by notifying the SofS in the prescribed form at the expiry of the leave that you are there without any apparent leave at the end of the six months - Clause 19(6)(a). I am assuming the prescribed form does not require the landlord to perform a triple somersault.

I think by Clause 19(6)(c) and Clause 22, the need to report can be delayed until 12 months after the passport inspection.

I am uncertain as to details because I cannot work out what 'prescribed requirements' means. Possibly there will be a prescribed inspection procedure that will defend landlords against fake documents. Also, the literal English language meaning of the act would allow the SofS to impose a fine 13 months after the last passport inspection on the basis that you were there immediately after the six months expired. No sane person would propose such a law...

[Wanderer]

That's a good point.

It is nice. I have a question and I am confused about this rule.

This law requires that the tenant has valid visa or leave at the time of renting or for the whole renting period? For example, if there is only 6 months left of my leave at the time of my tenancy renewal, I cannot renew as the landlord rents only for 1 year????

It's not a big deal, I have the same issue as I work away and in EU, I generally work on three month or six contracts and it's not easy to be able to commit to place even on a six month role, since it can take a month to look around/sign etc...

Although I am British I am the same, since I can only commit for the length of my contract.

There are always ways..

[michali]

This new requirement provides a lot of food for thought! What happens to current tenants, without valid visas, whose lease may not end for another year to two? Are landlords supposed to evict them?

[Richard W]

What happens to current tenants, without valid visas, whose lease may not end for another year to two?

Clause 30 'Transitional Provisions' excludes pre-existing tenancies unless there has been a change of tenant, in which case it is as clear as mud.

The bill doesn't read as though limited right to rent needs to extend to the end of the tenancy. Rather, it seems as though the idea is to force landlords to notify the Home Office of the whereabouts of people when their leave to remain expires. In many cases, time-limited leave to remain is extended before it expires. Non-EEA spouses of non-British EEA nationals are under no legal requirement to renew evidence of legal residence.

Will a tenancy agreed with someone disqualified from renting be valid?

[michali]

Some very good points, Richard W. The landlord's responsibility seems onerous. I can definitely see problems for landlords having to keep a check on the expiry date of their tenants' visas. I suppose the expectation will be that when this happens, the lease will have to be broken and the tenant evicted unless the tenancy is only given for the duration of the visa. As you say, Richard, this still is problematic when people can apply for extensions, etc.

Getting back to the spousal visa issue, surely someone entering on a spouse or any other visa is legally resident in the UK and therefore can be accepted as a tenant? In the case of a spouse visa applicant, the rental property will either be already occupied by the UKC and therefore legal, or the UKC will be returning to the UK with their non EU spouse.

If the spousal visa is granted, then the spouse joins or accompanies the UKC to the property quite legally as she or he has been granted leave to reside in the UK? If the spousal visa is denied, then the spouse does not join the UKC and therefore cannot create a problem for the landlord. Or am I missing something here?

This could indeed result in landlords refusing to give tenancy agreements to anyone on any kind of visa, thus denying housing to legitimate visa holders in the UK.

[Richard W]

I can definitely see problems for landlords having to keep a check on the expiry date of their tenants' visas. I suppose the expectation will be that when this happens, the lease will have to be broken and the tenant evicted unless the tenancy is only given for the duration of the visa.

There doesn't seem to be any certain need to apply for evictions because people become disqualified from renting. There is a problem that regulations may give an unreasonable interpretation to 'entering a tenancy agreement' - what happens if the landlord allows a tenancy to be extended simply by inaction?

If the spousal visa is granted, then the spouse joins or accompanies the UKC to the property quite legally as she or he has been granted leave to reside in the UK? If the spousal visa is denied, then the spouse does not join the UKC and therefore cannot create a problem for the landlord. Or am I missing something here?

For a pre-grant contravention, what is prohibited is not the residence, but the authorisation to reside. As far as I am aware, one cannot just bring in a spouse for settlement and look for somewhere to live; accommodation must already be available. ECOs will expect the spouse to be authorised to reside before granting a visa.

Strangely enough, Clause 23(5) prohibits the issue of a penalty clause if the relevant adult ceased to reside more than a year previously. The bill doesn't say what happens if the relevant adult has never resided! That may offer a way round the difficulty, depending on further legislation by order laid before Parliament. It seems to be a badly drafted bad law.

However, even if this is a way out, that assumes the landlord can trust the incoming spouse. It is entirely possible that she may enter other than by a settlement visa, or even be an overstayer.

[samira_uk]

There will be many scenarios which we are not aware of.
For example, many students choose to rent a home stay before coming to the UK or even before obtaining the visa and it is common and usual procedure among English schools and colleges. By this law it is not possible anymore.

Home Office has been unable to design a proper visa application form and you can always find many problems and confusing questions on the form yet alone to design a proper law.

I hope they change it through time. The only good news is that this law is to be enforced from Oct 2014 subject to parliamentary approval.