Category: Real Estate

The SSHD’s abuse of immigration powers

In the recent case of Ibori v Secretary of State for the Home Department (“SSHD”), the High Court ruled that the SSHD had abused her immigration powers to detain a foreign criminal in the UK to face confiscation proceedings.

The SSHD’s policy within the Enforcement and Instructions Guidance (“EIG”) explicitly states that immigration detention must only be used for one of the statutory purposes, namely for preventing a person’s unauthorised entry or with a view for a person’s removal (although not necessarily deportation). In addition it states that any detention must comply with domestic and ECHR case law and should only be used for a reasonable period in all the circumstances. Mr Ibori, a Nigerian national, was serving a 13-year prison sentence in the UK for embezzling public funds as the ex-governor of Delta State, Nigeria. He had been issued a notice to initiate proceedings to confiscate his assets pursuant to s71(1)(a) Criminal Justice Act 1988. The SSHD informed Mr Ibori that he was liable for automatic deportation as a foreign criminal pursuant to s32 Borders Act 2007 and subsequently on 8 May 2015 issued a deportation order. Mr Ibori was due to be released on licence on 20 December 2016 but the SSHD wrote on 8 December stating, ‘we cannot deport Mr Ibori until the confiscation matter had been resolved,’ and thereafter issued an order for his immigration detention the following day. Mr Ibori’s solicitors filed for a judicial review of the both the decision not to deport him and the decision to detain him. In doing so the CPS were asked whether they objected to Mr Ibori’s removal to Nigeria upon his conditional release from prison. The CPS responded that ‘any decision regarding the deportation is a matter for the Secretary of State for the Home Department.’ Upon urgent consideration of Mr Ibori’s judicial review claim, the judge ordered Mr Ibori’s immediate release from immigration detention on the condition that he remained with the jurisdiction. On 13 January the SSHD finally allowed Mr Ibori to depart the UK voluntarily, thus he managed to avoid the stigma of being deported.

In this case it was clear that the SSHD had disregarded the limits on her to detain Mr Ibori. Accordingly, his detention for a period of one day, 18 hours and 10 minutes was declared unlawful.

Court of appeal: human rights cannot be raised in EEA appeals

The Court of Appeal upheld decisions of both the First Tier and Upper Tribunal that human rights cannot form part of an EEA appeal (Amirteymour v SSHD, EWCA Civ 353).

The applicant had applied for a residence card to confirm his derivative right to reside in the UK on the basis of his relationship with his daughter (a Zambrano application). The applicant sought to rely on human rights but did not make a distinct human rights application. The application for the residence card was refused but no removal directions were given. The applicant appealed the refusal and again mentioned his human rights. A section 120 notice was served by the Secretary of State for the Home Department (“SSHD”) asking if there were any other grounds she should be aware of. No human rights arguments were explicitly made at that stage but they were again raised at the appeal. The judges throughout the appeal process found the human rights arguments could not form part of the EEA appeal.

The reasoning is that the right of appeal (under regulation 26(1)) is specifically a right of appeal against an EEA decision. The EEA appeal should focus on EEA law (note the ruling relates to cases where there are no removal directions in place). The regulation that gives the right of appeal does not create a general arena where arguments on immigration rules and human rights can be raised. Instead of an applicant being able to include human rights arguments as part of the EEA appeal they need to make a separate human rights application. The ruling means that there could then be two appeals, one for EEA law and one for human rights issues (except where prior notice is given to the SSHD through the s.120 process). The decision is all the more surprising due to UK case law on the need to recognise human rights claims even where they are not explicitly made (albeit relating to the Immigration Rules rather than to EEA law). As the applicant was applying based on his relationship with his daughter, it is no jump to see that their rights to family and private life (Article 8 EHCR) are relevant.

Of course the difficulty with this for applicants looking to reside in the UK is that it is becoming more complex and it is the outcome which is important to them, not which route of law it takes to get there. They will now face bearing the legal costs of preparing for two applications and possibly two appeals, covering many of the same issues but under different legal headings, rather than one all encompassing application and appeal. The additional applications and appeals will also lead to increased costs for the public purse. Individuals will need to consider whether a separate human rights application should be made under the Immigration Rules in addition to their EEA application. If not, in the case of a refusal it is particularly important to explicitly make human rights arguments where a section 120 notice is served.

For those making a human rights application as well as an EEA application there may be wider implications and we strongly advise applicants where this may apply to seek legal advice.

Right to rent: Checking your tenant(s) immigration status

As part of the UK government’s attempt to control illegal immigration in England, statutory provisions were introduced into the world of Landlord and Tenant by the Immigration Acts 2014 & 2016 (the 2014 and 2016 Act respectively).  This required landlords to check the immigration status of prospective tenants before letting properties to them, or face having to pay fines, penalties and committing a criminal offence.

It is vital for landlords to understand what the 2014 & 2016 Act’s require them to do, and this is why!

Following introduction of the 2014 Act, as at 1 February 2016 any property owner wishing to rent out its property is required to ensure that not only the tenant, but all adult occupiers of the property, had an immigration status that allowed them to be in England.  If a landlord failed to make those checks, and it turned out that the tenant or any adult occupier of the property did not have the appropriate immigration status, and therefore had no right to rent premises in England, that landlord could face a fine of up to £3,000, and following the implementation of the 2016 Act, would commit a criminal offence opening up a liability for a prison term of up to 5 years and/or a fine.

If a Prospective tenant had a time limited right to rent, e.g. their immigration status has an expiration date, the failure to carry out a further check at the time of the expiration date, would again leave the landlord open to a fine, penalty and criminal conviction.

Where a landlord uses a letting agent to deal with the letting of its property, the landlord can enter into an agreement with the letting agent that the letting agent will take responsibility for carrying out the immigration status checks of tenants, and therefore it will be the letting agent who would be liable for any potential fine, penalty and committal of a criminal offence.

The Home Office has produced a code of practice that gives guidance to landlords of what checks need to be carried out and how those checks can be carried out.

The 2016 Act introduced an ability for landlords to evict those without the appropriate immigration status from premises, without having to go through the costly and time consuming process of issuing possession proceedings in the county courts.  If a landlord receives a notice from the Secretary of State confirming that all of the occupiers of a property lack the sufficient immigration status, a landlord can give the occupants 28 days written notice to quit the property.  Upon expiry of that notice it becomes enforceable as if it were a High Court order and a landlord can instruct a High Court Enforcement Officer (HCEO) to enforce the notice.  A landlord could even avoid having to instruct the HCEO because if the Secretary of State has served a notice confirming all occupiers do not having the appropriate immigration status any tenancy would be considered an “excluded tenancy” and therefore not protected by the Protection from Eviction Act 1977.  The landlord could then, in theory, change the locks to the property, assuming that no one is in occupation, and therefore prevent the occupants from regaining access to the property.  Steps will however need to be taken in dealing with the occupier’s personal belongings.

However, occupiers who receive a notice to quit can apply for judicial review to challenge the Secretary of State’s notice and until that judicial review application has been dealt with, the landlord can be prevented from enforcing the notice.

A landlords responsibilities do not end there!

The 2016 Act also made an amendment to the Housing Act 1988 by introducing a further ground for possession. If ‘any’ occupier of the rented property does not have the appropriate immigration status, a landlord can serve a Notice seeking possession relying upon the new Ground 7(B) giving a notice period of two weeks.  Ground 7(B) is a mandatory ground for possession, and therefore a court must make a possession order when the possession proceedings that the landlord must then issue, come on for hearing at court.  A possession order will then need to be enforced by the court bailiff, or if transferred to the High Court for enforcement, by a HCEO.

If a landlord is given notice or becomes aware that the tenant or any adult occupier does not or no longer has the appropriate immigration status, the landlord must take immediate steps to evict the individual by following either of the two eviction processes. Failure to do so will result in the landlords being guilty of a criminal offence, and again liable to a criminal conviction and/or a fine.

The lesson here is simple.  Before you let your property to anybody you must check their immigration status and you should renew your checks upon either renewal of the tenancy or if the tenant had a limited right to be in England upon the time limit of that right expiring.

A recent government survey revealed that as at 31 October 2016 75 civil penalties have been issued to landlords of tenants with no right to rent and as at 30 September 2016, 31 people have been removed from the UK as a result of the right to rent regime. However, those 31 people were only a small proportion of the 654 individuals (5%) whom had been identified as not having the right to rent. This begs the question, is it really working? Only time will tell!

HOUSES FOR THE IMMIGRANTS BUT THE BRITS HAVE TO WAIT ?!

Channel 4’s series” How to get a Council House” effectively demonstrates that the  migrants get an upper hand when it  comes to housing in the UK  and on the  other hand the British born people have to  struggle on the waiting lists .

In one of the latest episodes we see  how out of control EU migration is having a disastrous impact on Britain’s housing market. For instance a Romanian family of 7 ( 2 adults and 5 children) is shown arriving into the UK at Hounslow’s housing department demanding that they be housed, and after striving  for a couple of weeks in front of the camera , waling and gaining sympathy they are then within 2 weeks housed in a 4 bedroom house in Birmingham at a cost to the tax payer of £750 per month! And in total will likely be in receipt of over £60k in benefits per year! (includes £25k cost for schooling 5 children).

The episode further highlights other similar cases of migrants who have recently arrived  such as  a single adult from Bermuda, who expected to be housed, and a family of 3 from Poland and Africa, again expecting to be housed and granted housing by the end of the episode.

The Housing support officer in the end of the episode is asked  “Do you think they should have been housed”, to which he answers –

“I think it’s a yes, no answer, it does not always seem fair and in this case I think the verdict will be open, there will be some of you who will think, we’ll were glad for them. Others might think here’s another case of the system being exploited. “ 

Whereas on the other hand the  romanian male of the family of 7 only considers himself lucky and has no clue that there  is a housing shortage in Britain.

Well , it is certainly a  debatable question  whether it was a fair decision to give a house to these homeless people or was the system being exploited for apparently all the wrong reasons . 

The interesting episode ends with a crucial  statement from Hounslow’s Director of Housing  saying  – “We are seeing an increase in applications from overseas. We do not have the supply, we do not have the homes to put them in. The situation can only get worse and we will expect to see those numbers simply grow and grow.”

It is  therefore clear that eastern europeans know the tricks and the ways to jump ahead in the housing queue so as to achieve what British born people are unable to despite waiting for literally decades on worthless housing waiting lists. So when people say that migrants are being given priority over British people, well it is true for EU migrant families at least, for being homeless with children means that they are treated as PRIORITY CASES.

But unfortunately the same consideration is not given to the Brits , So  if Brit’s make themselves homeless so as to put pressure on the Council, then the Council tends to turn around and inform them that they cannot be helped because they have deliberately made themselves homeless!

 Facts reveal that all most all europeans migrating to Britain with  children are being given housing within 2-4 weeks and the British born people strive on the waiting lists for many years .

 Food for thought , what will have happen if the EU leaves the  UK , will there then be more council houses for the Brits or will they still be holding on the never ending waiting lists .

 

Home Office tells agents and landlords to start Right To Rent checks now

The Home Office has issued a statement overnight saying letting agents and landlords can begin the controversial Right To Rent checks now – even though the measure becomes compulsory on February 1.

This is because under the regulations for Right To Rent in England, the checks can be conducted up to 28 days before the start of a tenancy – so anyone being checked now would qualify.

Right to rent check  means that landlords  will have to check that Tenants have the right to rent. They will check that Tenants have the correct legal documents to satisfy the requirements of the Immigration Act 2014.

“Ahead of the scheme’s roll out, we have been working closely with an expert panel to make sure their feedback is taken on board and to design a scheme that is as simple and light touch as possible.  Many responsible landlords have already been undertaking similar checks – these are straightforward and do not require any specialist knowledge” claims immigration minister James Brokenshire.

Right to Rent – which has been sharply criticised from many parts of the lettings sector, for making agents and landlords act as de facto immigration officers – was piloted in parts of the West Midlands in December 2014 and the extension to England is the next phase of what the government intends to be a UK-wide roll out.

Landlords, their agents, and anybody who sublets or takes in lodgers, could face a financial penalty of up to £3,000 per tenant if they are found to be letting property to someone who has no right to stay in the UK.

The government’s so-called “expert panel” includes trade bodies, local authorities and charities, which have been consulted on a revised code of practice that can be seen here.

There is an online checking service which agents and landlords can use to guide them through the process, and also to request a check on anyone who has an outstanding case with the Home Office.

Right to Rent checks should be carried out on all adult tenants for new tenancy agreements in England from February 1.

Real estate attorney Bill Kuehling

Bill advises developers, nonprofit corporations, and public entities on a variety of real estate transactions and infrastructure finance. He has more than 20 years of experience in real estate development, public/private partnerships, land use, and municipal law, and serves as an advisor to national developers seeking tax abatements, tax increment financing, or any other redevelopment opportunities across the St. Louis region.

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For Foreign Law Firms in Australia

The gamble of doing business in Australia came into sharp relief this past week when one U.S. law firm parted ways with Australia while another global firm took its relationship with the country to a whole new level.

New York law firm Fried, Frank, Harris, Shriver & Jacobson LLP announced that it’s shutting down its offices in Shanghai and Hong Kong in coming months. Meanwhile, global law firm Dentons unveiled plans to merge with mainland Australia’s largest law firm.

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