IN THE MATTER OF AN OPINION REQUESTED BY THE ASSOCIATION OF CHARITABLE FOUNDATIONS, THE JOSEPH ROWNTREE TRUST AND THE JOSEPH ROWNTREE HOUSING TRUST

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1 IN THE MATTER OF AN OPINION REQUESTED BY THE ASSOCIATION OF CHARITABLE FOUNDATIONS, THE JOSEPH ROWNTREE TRUST AND THE JOSEPH ROWNTREE HOUSING TRUST OPINION Introduction 1. I have been asked to consider a number of interlocking issues, relating to the ways in which residential accommodation and shelter, among other forms of support, may be provided by charitable foundations and housing providers to persons subject to immigration control, that is to persons who require leave (permission) to enter or remain in the United Kingdom. Among those affected are: (i) (ii) (iii) Persons who require leave to enter or remain and who lack it or any other right of residence in the UK (such persons may include EU citizens and EEA nationals), Persons with leave to enter or remain subject to a condition that they have no recourse to public funds or EU citizens and EEA nationals who enjoy an EU right of residence but where reliance upon that right alone is insufficient to confer eligibility to particular forms of social assistance (e.g. a right of residence as a jobseeker), and Persons who are unable to prove either lawful residence and/or access to public funds for want of documentation. 2. The situation of these broad classes is considered below in relation to immigration status, the scope of the term no recourse to public funds and the different types of accommodation available. 3. A general motivation behind seeking the opinion has been to secure advice on the circumstances in which it is permissible to rent or licence, or to fund, residential accommodation to, and shelter for, persons subject to immigration control who are subject to a restriction prohibiting them from recourse to 1

2 public funds. This motivation sits within a broader framework of concern about the ways in which support may be provided to such persons, where support extends to food, essential living needs and advice among other things. 4. A specific motivation has been the passage of the Immigration Act 2014 ( the 2014 Act ), which introduced a civil penalty regime for landlords who permit occupation of their residential accommodation by persons subject to immigration control who do not have a right to rent. However, the concerns of those instructing me extend beyond this latest innovation in legislative policy and reach to the broader legal and policy framework within which support is provided to such persons. 5. In addition, there is a concern about the use of certain criminal offences to prosecute persons who may unlawfully assist persons subject to immigration control in the context of the provision of residential accommodation and shelter. 6. Prior to the passage of the 2014 Act, funders and providers of residential accommodation and shelter were used to making provision for persons subject to immigration control who were subject to a no recourse to public funds condition whereby such persons were ineligible for, by way of example, housing benefit, an allocation of social housing under Part 6 of the Housing Act 1996 ( the 1996 Act ) or homelessness assistance under Part 7 of the 1996 Act. However even prior to the passage of the 2014 Act, many such funders and providers of residential accommodation and shelter had concerns as to the outer margin of their lawful practice in this area. Further, there was concern about the lawful basis for the provision of other forms of support, such as support for food, essential living needs, and the lawful basis for the provision of advice. 7. That said, prior to the passage of the 2014 Act whether through the funding of residential accommodation or shelter from private or charitable sources, or the provision of residential accommodation or shelter for a low rent, no rent or as 2

3 a benefit in kind, many such funders and accommodation providers were used to supporting such persons other than through public funds, albeit that there may have been some uncertainty as to the lawful basis for the such action. 8. The question of the scope of no recourse to public funds will be considered first in order to dispel the myths surrounding the term and to set it in its proper context. Thereafter, consideration will be given to legislative policy. Other than the passage of the 2014 Act, there has been no other major statutory innovation. Thus consideration will focus firstly on clarifying the issues arising under the pre-2014 Act position, then secondly on the impact of the 2014 Act and the ways in which it will be necessary to work around its provisions. In the consideration of this issue will be woven consideration of the provision of support by way of food, essential living needs and legal advice. Thereafter consideration will be given to the criminal law and its impact on the provision of support. Finally, consideration will be given to the various forms of accommodation, shelter and support provided and the legal issues pertaining to each. No recourse to public funds Myth busting 9. There is great confusion around the term No recourse to public funds ( NRPF ) and several questions arise as a result. Among them: what are public funds? Who has no recourse to them? In what way does this prohibition take effect? 10. As a term NRPF owes its existence to the use and application of the term public funds in the Immigration Rules. The latter set out the executive policy of the Home Secretary as to the circumstances in which leave to enter or remain in the United Kingdom will be conferred on a person subject to immigration control. 3

4 11. Paragraph 6 of the Immigration Rules provides that public funds 1 means (definition applicable in Great Britain, similar provision is made for Northern Ireland): (1) Housing under Part VI or VII of the Housing Act 1996 and under Part II of the Housing Act 1985, Part I or II of the Housing (Scotland) Act 1997; (2) Attendance allowance, severe disablement allowance, carer's allowance and disability living allowance under Part III of the Social Security Contribution and Benefits Act 1992; (3) Income support, council tax benefit and housing benefit under Part VII of the Social Security Contribution and Benefits Act 1992; (4) A social fund payment under Part VIII of the Social Security Contribution and Benefits Act 1992; (5) Child benefit under Part IX of the Social Security Contribution and Benefits Act 1992; (6) Income based jobseeker's allowance under the Jobseekers Act 1995, income related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance); (7) State pension credit under the State Pension Credit Act 2002; (8) Child tax credit and working tax credit under Part 1 of the Tax Credits Act 2002; (9) Universal Credit under Part 1 of the Welfare Reform Act 2012; A Personal Independence Payment under Part 4 of the Welfare Reform Act 2012; and (10) A council tax reduction under a council tax reduction scheme made under section 13A of the Local Government Finance Act 1992 in relation to England or Wales or a council tax reduction pursuant to the Council Tax Reduction (Scotland) Regulations 2012 or the Council Tax Reduction (State Pension Credit) (Scotland) Regulations As at 27 February

5 12. It is to be noted that public funds includes not only an allocation of social housing under Part VI of the 1996 Act and homelessness assistance under Part VII of the same Act, but also Housing under Part II of the Housing Act Thus it extends to the grant of a tenancy or a licence to occupy accommodation made by a local authority whether or not such an exercise of power also qualifies as an allocation of social housing or homelessness assistance under the 1996 Act. 13. Nothing else constitutes public funds. Any other money derived from the public purse and used in some way for the support of persons subject to immigration control, such as a grant or allocation of funds to build or otherwise supply residential accommodation, does not fall within the definition of public funds used for Immigration Rules purposes. Thus for example grants made by the Homelessness Transition Fund to non-profit organisations working to support rough sleepers do not count as public funds. Nor, by itself, does funding by Housing Association Grant to a registered social landlord count as public funds absent any allocation of social housing under part of the 1996 Act. In that regard the provision of housing or accommodation by a housing association other than by way of an allocation of social housing by a local authority under part 6 of the 1996 Act does not count as public funds. Further, public funds does not include the provision of accommodation by the National Health Service ( NHS ) in any form. Thus where the medical needs of a person subject to immigration control lead to the performance of a duty or the exercise of a power to provide accommodation by an NHS Trust, this does not constitute prohibited public funds. 14. In the Immigration Rules the term public funds is used to set criteria for permitting a person to be granted leave to enter or remain. For example as regards a visitor to the UK: 41. The requirements to be met by a person seeking leave to enter the United Kingdom as a general visitor are that he: 5

6 (vi) will maintain and accommodate himself and any dependants adequately out of resources available to him without recourse to public funds or taking employment; or will, with any dependants, be maintained and/or accommodated adequately by relatives or friends who can demonstrate they are able and intend to do so, and are legally present in the United Kingdom, or will be at the time of their visit; and (emphasis supplied) 15. Thereafter, leave to enter or remain may be granted subject to a condition that a person has no recourse to public funds. For example: Leave to enter as a general visitor 42. A person seeking leave to enter to the United Kingdom as a general visitor may be admitted for a period not exceeding 6 months, or not exceeding 12 months in the case of a person accompanying an academic visitor (as their child, spouse or partner), subject to a condition prohibiting employment and recourse to public funds, provided the Immigration Officer is satisfied that each of the requirements of paragraph 41 is met. (emphasis supplied) 16. Conditions on leave to enter or remain may be imposed on persons subject to immigration control who have time limited leave to enter or remain under section 3 of the Immigration Act 1971, which provides as material: 3 General provisions for regulation and control. (1) Except as otherwise provided by or under this Act, where a person is not a British citizen (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; (c) if he is given limited leave to enter or remain in the United 6

7 Kingdom, it may be given subject to all or any of the following conditions, namely (ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; (emphasis supplied) 17. Where a person subject to immigration control is granted leave to enter or remain, a breach of the conditions imposed, such as actually having recourse to public funds, may lead to the leave to enter or remain being curtailed or to a refusal to extend that leave to remain beyond the time-limit imposed on the initial grant, see for example paragraph 322(3) of the Immigration Rules: Refusal of leave to remain, variation of leave to enter or remain or curtailment of leave 322. In addition to the grounds for refusal of extension of stay set out in Parts 2-8 of these Rules, the following provisions apply in relation to the refusal of an application for leave to remain, variation of leave to enter or remain or, where appropriate, the curtailment of leave: Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom should normally be refused (3) failure to comply with any conditions attached to the grant of leave to enter or remain; (emphasis supplied) 18. In summary, the term public funds is exhaustively defined for the purposes of administering immigration policy. Any source of funds from the public purse, not expressly mentioned does not fall within the definition of the term. 7

8 The Immigration Rules use the term public funds to set criteria for the grant of leave to enter or remain in the UK and to impose conditions on persons granted such leave. Thus public funds is applied to the control of a person subject to immigration control him-/herself and not to other persons, trusts, companies or other entities who fund or who provide accommodation for that person. 19. The term public funds is also used in respect of welfare benefits in s 115 of the Immigration and Asylum Act 1999 (equivalent provisions is made for tax credits by s 42 of the Tax Credits Act 2002, and the criteria for access to homelessness assistance and public housing under the 1996 Act operate to similar effect), which provides for exclusion from the following benefits: (1) universal credit, (2) income-based jobseeker s allowance, (3) state pension credit, (4) income-related allowance (employment and support allowance), (5) personal independence payment, (6) attendance allowance, (7) severe disablement allowance, (8) carer's allowance, (9) disability living allowance, (10) income support, (11) a social fund payment, (12) health in pregnancy grant, (13) child benefit, (14) housing benefit, and (15) council tax benefit. 20. The classes of persons excluded from these benefits is defined by s 115(9) of the Immigration and Asylum Act 1999 and includes (but is not limited to) a person who is subject to immigration control (and who is not a national of a European Economic Area ( EEA ) State), who: 8

9 (i) requires leave to enter or remain in the United Kingdom but does not have it, or (ii) has leave to enter or remain in the United Kingdom, which is subject to a condition that he does not have recourse to public funds. 21. In plain terms, s 115(9) of the Immigration and Asylum Act 1999 excludes: (i) persons (not being EEA nationals) who require leave to enter or remain but who do not have it, including: 1. illegal entrants (e.g. those who have entered the UK clandestinely in a lorry or those who have passed immigration control using false documents), 2. persons who have overstayed (so-called overstayers ) beyond their period of leave to enter or remain, and 3. persons who have been granted temporary admission or temporary release from detention (not having leave (permission) to enter or remain), and (ii) persons who have leave to enter or remain that has been made subject to a NRPF condition. 22. These groups ((i) and (ii) in the above paragraph) are excluded from welfare benefits. However, there is a difference between them. A person who has leave to enter or remain that has been made subject to a NRPF condition cannot access welfare benefits or tax credits (or housing under the 1996 Act) but may be lawfully able to access other forms of social assistance by way of residential accommodation from local authorities, such as that available under the Children Act 1989 (in respect of unaccompanied children or families with children) or under the National Assistance Act 1948 (for adults in need of care 9

10 and attention not otherwise available) A person who has leave to enter or remain that has been made subject to a NRPF condition is not unlawfully present in the United Kingdom and so is not excluded from access to such social assistance (under the Children Act 1989 and the National Assistance Act 1948) by s 54 and Schedule 3 to the Nationality, Asylum and Immigration Act 2002 ( the 2002 Act ). 24. By contrast, a person who is unlawfully present such as an illegal entrant, overstayer, etc. is excluded from access to such social assistance, save to the extent that the performance of a duty or the exercise of a power is necessary to avoid a breach of rights protected under Human Rights Act 1998 or arising under the EU Treaties, see paragraph 3 of Schedule 3 to the 2002 Act. 25. Drawing the threads together, it can be seen that public funds is a much more limited term, applied for limited purposes than might be thought at first. The application of the term as part of a condition of no recourse to public funds merely blocks access to the specified forms of social assistance for the person concerned. It does not have further implications for accommodation and service providers. Whatever charities law may provide, immigration law (absent the 2014 Act) places no further restrictions on the support of the destitute and needy. Immigration law (absent the 2014 Act) does not further hinder those who seek to support directly or indirectly persons subject to immigration control who are subject to a no recourse to public funds restriction. 26. Of course that still leaves the issue of how to fund the provision of accommodation or shelter to a person with NRPF, where such accommodation or shelter would be funded from housing benefit were it to be provided to a British citizen. The reality is that any bed or room, whose provision depends on the service user being able to secure housing benefit, will be unavailable to 2 Just to complicate matters further, while such accommodation may be lawfully provided, the grant of such accommodation by lease or licence would nonetheless fall within the definition of public funds in the Immigration Rules, as it constitutes housing under Part II of the Housing Act 1985, and could thus serve as the foundation for curtailment of limited leave to enter or remain. 10

11 the person with a NRPF restriction in place. 27. In that regard there is no variation as between persons who have no recourse to public funds by virtue of having no status (i.e. no lawful residence in the UK) and those who have such status but subject to a NRPF condition. Both classes of persons have no access to housing benefit by virtue of the application of s 115 of the Immigration and Asylum Act A person who secures a place to sleep by virtue of specific need such as her flight to a refuge from domestic violence, may nonetheless have to fund that accommodation in circumstances where housing benefit would meet the cost of a British citizen so situated. 28. Further, a person with no status in the UK may or may not have prospects of securing lawful residence. Each case will turn on its individual facts. There may be an application for asylum in the pipeline that is ultimately successful. Or that person may have exhausted all possible avenues for regularisation of status. Or an EU right of residence derived from a family relationship may be uncovered. What matters in all cases though is that unless and until an EU right of residence emerges or leave to remain without a NRPF restriction is conferred, the person concerned has no access to housing benefit. The same is true for a person who has leave to enter or remain but who is subject to a NRPF condition. 29. In this regard, there is no distinction dependent upon whether or not a person has exhausted his or her legal remedies. While a legal remedy may lead to a situation where a right of residence is recognised or leave to enter or remain is conferred without a NRPF condition being imposed, it does not affect the present reality that the person concerned has NRPF and has to secure accommodation or funding for accommodation other than from the sources designated as public funds. 30. That said, a person who has access to a legal remedy and who has a legal argument as to why an EU right of residence ought to be recognised or leave to enter or remain ought to be conferred without a NRPF condition being imposed, may be assessed by an accommodation provider or funder of the 11

12 same as likely to require their support for a shorter period of time than a person who has exhausted legal remedies or a person who has a legal remedy but whose legal arguments have poor prospects of success. Such matters are of course matters of practicality concerning the duration of support. They do not determine whether or not that person is currently able to access public funds, which is the pressing issue confronting accommodation seekers and providers. Categories of persons affected 31. I have been asked to consider the classes of persons affected by NRPF conditions. The principal classes of persons affected are persons subject to immigration control who are: (1) illegal entrants (e.g. those who have entered the UK clandestinely in a lorry or those who have passed immigration control using false documents), (2) persons who have overstayed (so-called overstayers ) beyond their period of leave to enter or remain, and (3) persons who have been granted temporary admission or temporary release from detention (not having leave to enter or remain), (4) persons who have leave to enter or remain that has been made subject to a NRPF condition, (5) persons who are nationals of EEA Member States but who are unable to demonstrate a right of residence in the UK arising under EU law, as well as EEA nationals who solely rely on a right of residence that is precluded from conferring access to particular forms of social assistance under national law (e.g. jobseekers, persons with an initial right of residence, persons who derive a right of residence from caring for a British citizen/so-called Zambrano cases), (6) persons who are family members of EEA nationals, where such persons are nationals of non-eea states, who are unable to demonstrate that they are related as claimed and/or that they possess a right of residence in the UK arising under EU law, and 12

13 (7) persons whose identity, status or entitlement to lawful residence in the UK may not be demonstrated for want of identity documents, travel documents, birth certificates, other official documentation, and who may be unable to secure the same. Such persons may fall into any of the categories at (1)-(6), (8) Asylum seekers: such persons may be illegal entrants, overstayers, persons who have applied for leave to enter the UK on arrival, persons who have been granted temporary admission or temporary release on any basis, or persons with leave to enter or remain in the UK. Thus the term asylum-seeker does not say very much about the status of the person concerned in domestic law, see s 94(1) of the Immigration and Asylum Act 1999, (9) Refused asylum-seekers: who remain in the UK for a range of reasons including the possibility of a fresh asylum claim. Such persons may be illegal entrants, overstayers, persons who have applied for leave to enter the UK on arrival, persons who have been granted temporary admission or temporary release on any basis, or persons with leave to enter or remain in the UK. 32. In addition, British citizens who are unable to prove their status as such for want of evidence of British citizenship are liable to be unable to prove that they have access to public funds. Some British citizens returning to the UK after periods away will need to satisfy a test for habitual residence before accessing public funds albeit that they are not strictly excluded from the same. Further, persons who are British citizens by descent (i.e. born abroad) may have difficulty in proving that they are such citizens and/or eligible for social assistance by virtue of that status. 33. Subsequent references to persons with NRPF below include all those at paragraph 30(1) to (9) unless otherwise stated. Types of accommodation 13

14 34. I have been asked to consider various forms of accommodation that may be mobilised to accommodate persons subject to immigration control who are subject to a NRPF condition. Among them are night shelters, housing association accommodation, loaned private houses, rented private houses, hosting/guest schemes, places in hostels and refuges, and empty church buildings. 35. Prior to the introduction of the provisions for residential tenancies in the 2014 Act, there was nothing to preclude the use of any form of accommodation to support such persons (save for any accommodation provided by a Housing Association pursuant to a nomination agreement with a local housing authority, where such a nomination serves as an allocation of social housing under Part 6 of the 1996 Act). At that time the material question was how such accommodation would be funded in the absence of a person being able to pay from housing benefit (or indeed from his or her own pocket). 36. Therefore, the question of whether these forms of accommodation may be mobilised to accommodate persons subject to immigration control who are subject to a NRPF condition arises by way of consideration of whether providing such accommodation incurs liability on the provider for a civil penalty under the 2014 Act. In that context it is sensible to consider the operation of that Act in its material parts. The scheme for Residential Tenancies under the Immigration Act By way of introduction, it should be made clear that at the time of writing, the provisions of the 2014 Act applying to residential tenancies apply only in the West Midlands: Birmingham City Council, Dudley Metropolitan Borough Council, Sandwell Metropolitan Borough Council, Walsall Metropolitan Borough Council and Wolverhampton City Council, see the Immigration Act 2014 (Commencement No 3, Transitional and Saving Provisions) Order 2014, SI 2014/2771, article 6. The premises in question must be located in the area of a specified local authority for the scheme to operate. Prior to the May

15 General Election it was the Secretary of State s intention is that the scheme would only be extended to other areas subject to Parliament considering the impact of the scheme in these areas. However, following the Election, on 21 May 2015 the Prime Minister announced that the scheme would be rolled out nationwide. 38. In its current iteration in the West Midlands, the scheme places an obligation on landlords to make the prescribed checks. Consistently with this, insofar as a prospective tenant must have a right to rent this is only so in relation to premises located within the area of a West Midlands local authority and not otherwise. (i) Landlord 39. In order for liability for a civil penalty to be incurred under Chapter 1, Part 3 of the 2014 Act, there must be a residential tenancy agreement and the provider of that accommodation must be a landlord (unless responsibility is transferred by agreement to an agent ), see ss 20, 22 and 25 of the 2014 Act. Therefore the first question for an accommodation provider or a funder of such accommodation is whether the definition of landlord is satisfied so as to form the foundation for incurring liability. 40. For liability to be incurred there must be a residential tenancy agreement and thus there must be a tenancy that grants a right of occupation of the premises for residential use, see s 20 of the 2014 Act, and the agreement must provide for the payment of rent. The parties to the tenancy agreement are the landlord and the tenant. A tenancy is defined for the purposes of the 2014 Act to include any lease, licence, sub-lease or sub-tenancy, and an agreement for any of those things. 15

16 41. From the perspective of a housing provider or funder of housing provision, there is no liability for a civil penalty unless the provider or funder falls within the role of landlord. Thus where an entity provides funds to another entity to make housing provision, the first entity does not act as a landlord and so does not fall within the scope of the civil penalty regime under the 2014 Act. Thus funders of accommodation (as opposed to providers) have little to fear from the operation of these provisions. Moreover, where a Housing Association provides a property at a peppercorn rent to a voluntary association or charity who then make it available to destitute persons subject to NRPF under a residential tenancy agreement, the Housing Association is not without more such as express agreement to assume responsibility the landlord in that latter agreement and it is a matter for voluntary association or charity to comply with any requirements of the 2014 Act. 42. On the question of whether the civil penalty regime affects both public landlords and private landlords, the answer is clear: every landlord who grants a right of occupation of premises for residential use under an agreement providing for the payment of rent concludes a residential tenancy agreement capable of founding liability for a civil penalty, unless the agreement falls within a list of excluded agreements, see s 20(2) and Schedule 3 of the 2014 Act. The latter schedule exempts various forms of social housing provided pursuant to specified statutory provisions. Unless so excluded a tenancy agreement falls within the definition of being a residential tenancy agreement capable of founding liability for a civil penalty. 43. An Arm s Length Management Organisation ( ALMO ) would only be caught by these provisions if it owned the premises provided for accommodation and was thereby the landlord party to the residential tenancy agreement. In situations where the ALMO merely provides housing services to a local authority but the latter remains the landlord of the premises in issue, the ALMO does not conclude a residential tenancy agreement and so does not fall within the scope of the civil penalty regime. The position in respect of hostels and refuges is considered below. 16

17 (ii) payment of rent 44. For there to be a residential tenancy agreement, there must be a payment of rent whether or not a market rent and rent includes any sum in the nature of rent, see s 20 of the 2014 Act. Thus liability may be incurred where such rent is paid. To avoid such liability, no rent must be paid, either at a market rate, below market rates or even a peppercorn rent. Provision of services in kind in return for the right to occupy the premises for residential use ought to be avoided as well. 45. However there is nothing to prevent the tenant providing payment or services in kind for any food or essential living needs provided by the accommodation provider or any other party, provided such a transaction or agreement for the same is clearly distinguishable from any agreement entered into for the provision of a tenancy that grants a right of occupation for residential use. 46. In terms of making provision for persons subject to immigration control who are subject to NRPF, accommodation providers and funders of accommodation providers may wish to bear in mind that such persons may occupy accommodation without payment of rent but with payment for services in kind being provided in return for or essential living needs. This is a vital point to grasp as it allows for some material consideration to flow from the person concerned to the accommodation provider. 47. For the avoidance of doubt, the provision of food, essential living needs, legal advice and other practical support is not caught by the civil penalty regime that applies in respect of residential accommodation under the 2014 Act. Absent the application of the criminal law (for which see below), there are no restrictions on private parties providing such support. (iii) for residential use 17

18 48. An agreement to occupy premises or residential use means one or more adults must have the right to occupy the property as their only or main residence, see s 20(4) of the 2014 Act. Two inter-related material issues arise that may lead to the avoidance of liability. 49. Firstly, what is residential use? A distinction might be drawn between the provision of short-term accommodation, for example, an overnight stay, and using a property for residential purposes. Residential purposes in this statutory setting might mean residing in premises with some degree of permanence. Residential purposes are not the same as temporary purposes. One does not occupy a room in an airport hotel the evening before a flight for residential purposes, rather one stays there in order to catch a flight early the next day. This distinction between staying (a temporary state of affairs) and residing (where a person has an abode that they reside in as part of an enduring way of life) for residential purposes is tenable and buttressed by the second interrelated matter, that the premises in question must be a person s only or main residence. 50. A person who is provided with a room for a night or two and who has no other place to stay clearly has no other residence but is it sensible to hold that something provided on so a temporary a basis is for residential use? Although a person who occupies a room for a night or two is clearly using the room for personal purposes rather than business purposes, that person is not in reality using the premises as their residence (that is as part of the incidence of his or her ordinary life) but rather than in order to avoid street homelessness. In my opinion there is an argument that these provisions are capable of being interpreted benignly in the manner for which I contend. This would mean that the provision of short-term accommodation would not attract liability or a civil penalty. However, such an interpretation may only be settled decisively following an appeal to the county court against the imposition of a civil penalty, where the point is in issue and liability turns on a favourable outcome. Thus short-term accommodation providers may draw no immediate comfort 18

19 from this interpretation. Of course, if no rent is charged, the need for such a benign interpretation does not arise. (iv) excluded agreements 51. As well as tenancies involving no payment of rent, liability for a civil penalty is also excluded in circumstances where a tenancy agreement does not fall within the definition of residential tenancy agreement because it is an excluded agreement, see s 20(2)(c) and Schedule 3 of the 2014 Act. The Schedule to the Act contains a list of classes of excluded agreements. 52. The exclusion of principal importance for present purposes is that pertaining to hostels and refuges in paragraph 6 of Schedule 3 to the Act. Agreements that grant a right of occupation of accommodation in a hostel or refuge are excluded from founding liability. 53. A hostel is defined to be a building used for providing persons generally or a class of persons with residential accommodation otherwise than in separate and self-contained premises, and for providing board or facilities for the preparation of food adequate to the needs of those persons (or both). A further condition imposed is that one of three alternatives apply: it is managed by a registered housing association; it is not operated on a commercial basis and a government department or agency or a local authority at least in part provides its operational costs; or it is managed by a voluntary organisation or charity. A charity is not further defined but a voluntary organisation is defined as a body other than a public or local authority whose activities are not carried on for profit. 54. Thus where there is a residential tenancy agreement, even if rent is paid, such an agreement does not attract civil liability were a hostel run by a charity or voluntary organisation on a not-for-profit basis is used to provide the accommodation. 19

20 55. Other excluded agreements of note include (i) those falling within paragraph 7 of schedule 3 to the 2014 Act whereby powers and duties falling outside those owed to homeless persons under part 7 of the 1996 Act are nonetheless exercised by a local authority to provide accommodation under an agreement, and (ii) those falling under paragraph 8 to Schedule 3 to the 2014 Act whereby Home Office accommodation and support is provided to asylum-seekers and refused asylum-seekers. (v) occupiers as well as tenants 56. It is not only tenants but also occupiers whose immigration status may engage the operation of the civil penalty regime. It is a feature of the civil penalty regime under the 2014 Act that a right of occupation of premises for residential use may be granted in a residential tenancy agreement not only to the tenant, but also to the any adult who has the right to occupy the premises as their only or main residence, regardless of whether the premises are used for other purposes, see s 20(4) of the 2014 Act. 57. Premises is defined to include land, buildings, moveable structures, vehicles and vessels. Further a residential tenancy agreement is said to grant a right to occupy premises if the agreement expressly grants the person the right (regardless of whether the person is named in the agreement) or the person is permitted to occupy the premises by virtue of an express grant given to another person, see s 37 of the 2014 Act. 58. These provisions dovetail with those prohibiting a landlord from authorising an adult to occupy premises where the latter is disqualified as a result of his or her immigration status, see s 22 of the 2014 Act. In the result, accommodation providers who fall within the definition of landlord and who grant a residential tenancy agreement must beware of occupiers as well as tenants. 20

21 59. This measure impacts upon families (among other persons living together). A tenant may have a right to rent but his or her family members authorised to occupy the premises also need to be considered in accordance with the requirements of ss 21 and 22 of the 2014 Act. 60. Further, a house guest or lodger would engage liability if the residential tenancy agreement authorised his or her occupation of the premises, that person was disqualified from occupation on account of his or her immigration status, and the landlord contravened the requirements of s 22 of the 2014 Act and was not excused from paying a civil penalty imposed thereafter, see ss 23 and 24 of the same. Liability would be engaged even where the house guest or lodger was not named in the agreement, provided the agreement authorised his or her presence. 61. As regards the question of whether mixed housing falls foul of the 2014 Act provisions, the civil penalty regime is ordered around tenancies that constitute residential tenancy agreements. When a tenancy agreement grants a right of occupation of premises for residential use in return for payment of rent and the agreement is not an excluded one, liability may be incurred but not otherwise. 62. So where a tenancy of one room is granted, with shared use of communal facilities, it is that tenancy agreement that must be considered. Other tenancies of other single rooms where the same communal facilities are shared would fall to be examined on their own terms. Given that tenants and others may be granted a right to occupy accommodation in a tenancy of one room, there are potentially a large number of persons whose immigration status may fall to be considered. However, each tenancy agreement will have to be examined on its own terms. Where rent is not required under any given tenancy agreement it will not be a residential tenancy agreement and liability will not be incurred. 63. On one final point, there will be cases where a tenant (say a British citizen) hosts a person subject to immigration control who is disqualified from a right to rent by virtue of his or her immigration status. If the tenancy agreement 21

22 between landlord and tenant authorises a right of occupation to the person so hosted (whether or not he or she is named in the agreement) then liability is incurred if the landlord did not comply with the prescribed checking requirements, see s 22 (4), (6) of the 2014 Act. 64. In this scenario it does not matter whether or not the tenant is charging for the bed provided, as the question of whether rent is paid is a question as between landlord and tenant. What matters is whether the landlord has a defence to the imposition of a civil penalty. Section 22(4)(c) and 24(6) of the 2014 Act provides that liability is incurred where a residential tenancy agreement is entered into where at the time of entry into the agreement a right to occupy premises is granted to an adult not named in the agreement who is disqualified as a result of his or her immigration status. However, there is a contravention of the provision only if reasonable enquiries were not made of the tenant before entering into the agreement as to the relevant occupiers, or such enquiries were made and it was or should have been apparent from them that the adult in question was likely to be a relevant occupier. 65. Thus the focal point in time is before the tenancy agreement was agreed. Where a person is unknown at that time, liability appears to be precluded. However, if the landlord ought to have known from such reasonable enquiries of the tenant that the tenant intended to offer beds to persons disqualified from a right to rent by virtue of immigration status, then potentially liability arises. The position is not free from doubt but tolerably clear. Where long after a tenancy agreement is made, the tenant in an act of humanitarian compassion decides to offer a bed for the night to a person subject to immigration control subject to NRPF, and the tenant is authorised to do so under the residential tenancy agreement, landlord liability is only incurred where there is a contravention of pre-agreement enquiry provisions. 66. Where a residential tenancy agreement requires a tenant to seek permission from the landlord to take in a lodger or host a guest, seeking and granting such permission constitutes performance of the contract. In that scenario there is a 22

23 contravention of the provision only if reasonable enquiries were not made of the tenant before entering into the agreement as to the relevant occupiers, or such enquiries were made and it was or should have been apparent from them that the adult in question was likely to be a relevant occupier. 67. Where the tenancy agreement contains no such term and the tenant seeks the landlord s permission to take in a lodger or host a guest, then there is a variation of the contractual terms. A residential tenancy agreement is to be treated as being entered into for the purposes of the 2014 Act where a landlord consents to a variation of a residential tenancy agreement which grants the right to occupy the premises to one or more new occupiers (a so-called varied tenancy), see the Immigration (Residential Accommodation) (Prescribed Cases) Order 2014, SI 2014/2873, article 3(a). Landlord liability arises where contract is so varied to permit a tenant to take in a lodger or a guest, the latter is disqualified from being authorised to occupy that accommodation by virtue of immigration status and no statutory excuse is available to the landlord under s 24 of the 2014 Act. (vi) Issues in relation to immigration status 68. An adult disqualified by virtue of immigration status must not be authorised to occupy premises under a residential tenancy agreement by a landlord if it involves payment of rent. Contravention of this prohibition confers power on the Secretary of State to give the landlord a penalty notice. A landlord may be excused from the payment of penalty where the prescribed requirements in relation to document checking and the like have been satisfied. British citizens, nationals of other EEA states and Swiss nationals are not disqualified by virtue of their immigration status. Others so-called third country nationals in immigration law jargon require a right to rent in relation to the premises. 69. No person has a right to rent who requires leave to enter or remain in the UK 23

24 but who does not have it, or who has such leave subject to a condition preventing that person from occupying the premises, see s 21 of the 2014 Act (presently only applying in respect of premises within the areas of the specified West Midlands local authorities). A condition preventing a person from occupying premises may be imposed by s 3 of the Immigration Act 1971, which provides as material: 3 General provisions for regulation and control. (1) Except as otherwise provided by or under this Act, where a person is not British citizen (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; (c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely (v) a condition about residence. (emphasis supplied) 70. Such conditions may not be imposed on persons with indefinite leave to enter or remain only those given limited leave. 71. A person subject to immigration control not otherwise so entitled may be treated as having a right to rent in relation to the premises if the Secretary of State grants permission to occupy the premises under a residential tenancy agreement, see s 21(3) of the Act. This is the escape clause that allows the Secretary of State to grant a right to rent where the statutory scheme otherwise precludes such a right. It has the potential to be used in a broad, humanitarian way. How it will be used in practice remains to be seen. 24

25 72. Persons subject to immigration control who are subject to a NRPF restriction will either lack any form of leave to enter or remain or have such leave subject to a condition that they have no recourse to public funds. Where such persons have leave to enter or remain subject to a NRPF condition, they may or may not also be subject to a condition preventing them from occupying certain premises. However, in my opinion, it is difficult to see why such a condition would be imposed and although the power exists to do this, in practice it s exercise may prove unlikely. NRPF conditions are imposed to protect the public purse. So long as a person is self-reliant in a way prescribed by the Immigration Rules, there ought to be no need to impose a restriction as to which premises that person may or not may be permitted to occupy. Persons with limited leave to enter or remain may be controlled in this way but it is not obvious what public policy objective would be achieved thereby. 73. The more obvious group of persons of concern to those instructing me are those who require leave to enter or remain but who do not have it. Such persons will not be able to demonstrate a right to rent unless they are given permission by the Secretary of State to occupy premises under a residential tenancy agreement. 74. A person subject to immigration control who requires leave to enter or remain but does not have it and who is unknown to the Secretary of State will not possess a right to rent. The same is true for a person subject to immigration control who requires leave to enter or remain and who claims to have it but who cannot prove his or her status or want of documentary evidence. 75. As regards a person subject to immigration control who requires leave to enter or remain but does not have it and who has been granted temporary admission or temporary release, such persons will not be able to demonstrate a right to rent unless they are given permission by the Secretary of State to occupy premises under a residential tenancy agreement. 25

26 76. As regards a person subject to immigration control who requires leave to enter or remain but does not have it and who has exhausted all possibilities of being able to regularise his or her status through a grant of leave to enter or remain, such a person will not be able to demonstrate a right to rent unless he or she is given permission by the Secretary of State to occupy premises under a residential tenancy agreement. As regards accommodation providers who nonetheless seek to provide or fund accommodation other than for rent, or who seek to accommodate such a person in a hostel pursuant to an excluded agreement, the provision of such accommodation will be an open-ended commitment unless and until that person is removed from the UK or a decision is taken by the provider to withdraw the provision of or funding of accommodation and he or she is asked to leave. 77. Of course were such a person to secure leave to enter or remain without being made subject to a NRPF restriction, then his or her position would change and housing benefit and so on would become available to fund accommodation. Prior immigration status makes no difference. What matters is whether or not the person has an immigration status that confers a right to rent or permission from the Secretary of State to rent in any event. The position is the same regardless of the route into destitution and regardless of the country from which a person has come. 78. One class of persons calls for particular consideration, a person subject to immigration control who is not an EEA national, but who is the family member of an EEA national, and who enjoys an EU right of residence but does not have a residence card as evidence of the same and has not made an application for one, may be able to establish by other means that he or she is lawfully resident in the UK. 79. A landlord who grants a right of occupation to such a person pursuant to a residential tenancy agreement but who does not either obtain a copy of a residence card or seek confirmation of via a Positive Right to Rent Notice from the Landlord Checking Service that one has been applied for in the last 26

27 six months, may have a civil penalty imposed and will lack an excuse to avoid payment of the same. However such a person may have a defence under EU law that the imposition of such a civil penalty is incompatible with EU law and that it is an administrative obstacle liable to hinder or obstruct the exercise of free movement rights and as such is neither justifiable and/or proportionate. However, such an argument may only be vindicated decisively following an appeal to the county court against the imposition of a civil penalty, where the point is in issue and liability turns on a favourable outcome. Thus short-term accommodation providers may draw no immediate comfort from this interpretation. 80. As regards asylum-seekers, I note from article 4 of the Immigration (Residential Accommodation) (Prescribed Requirements and Code of Practice) Order 2014 that a landlord must obtain a positive Right to Rent notice from the Landlord Checking Service in respect of an occupier or prospective occupier who is an asylum seeker or who has an appeal pending against an asylum decision. Such asylum-seekers may have no status, they may be on temporary admission or temporary release, or conceivably they may have leave to enter or remain (the definition of asylum-seeker turning on whether a claim for asylum has been made rather than prior immigration status, see s 94(1) of the Immigration and Asylum Act 1999). Asylum seekers are usually accommodated within the Home Office immigration estate. Such arrangements constitute excluded tenancies, see paragraph 8 of Schedule 3 of the 2014 Act. However, where asylum seekers fall to be accommodated by charities, voluntary organisations or other accommodation providers under arrangements that would constitute residential tenancy agreements, then the requirement to secure positive Right to Rent Notice applies. 81. If the 2014 Act provisions are extended beyond the five Local Authorities in the West Midlands, in new local authority areas its provisions will only apply to new residential tenancy agreements after its comes into force in those areas. 27