My colleague, Robin Stewart, has previously written about the substantially extended eviction powers to be found under the upgraded Right to Rent provisions. These were introduced by the Immigration Act 2016 which amended the Immigration Act 2014 to upgrade the power to evict for landlords where occupiers do not have the Right to Rent and also uprated the penalties for not taking action to remove people who are shown not to have the proper Right.
The eviction powers work on the basis of a notice served by the Secretary of State telling the landlord that some or all of the people in the property do not have a Right to Rent. This is now known by the Home Office as a Notice of Letting to a Disqualified Person which reduces to the acronym NLDP.
Where a landlord receives an NLDP or NLDPs which refer to some of the occupiers he can seek a possession order through the courts. More controversially, where the NLDP or NLDPs refer to all of the persons occupying the property the landlord does not have to go to court. In these cases the landlord serves a notice under s33D(3) of the Immigration Act 2014 giving the occupiers 28 days to leave.
Once the s33D(3) notice has expired the landlord is permitted to remove the tenants from the property themselves using reasonable force. They do not require any form of court order to do so. For landlords who do not wish to take this risk they can also instruct a High Court Enforcement Officer to do this and, unusually, the NDLP and s33D(3) notice together are treated as an order of the High Court so a writ of possession can be sought directly.
The slight problem with all this is that the seeking of a Writ of Possession is covered by court rules, specifically the Civil Procedure Rules, and these were out of date. They required that any application for a writ of possession be accompanied by a court order or judgement. Clearly a landlord acting on an NDLP would not have a court order or judgement, that is the entire point of the new provisions.
Happily, this odd situation will be corrected from 1 October as rule 11 of the Civil Procedure (Amendment No. 2) Rules 2017 amends CPR 83 to state that where a writ is being sought in order to enforce an s33D(3) notice what must be enclosed with the application form is that notice rather than a judgement or order.
Whether all this makes a huge amount of difference in practice is less certain. The Home Office has suggested from previous studies that the vast majority of properties contain a mixture of persons who do and do not have the Right to Rent and so it seems that situations where an NDLP will apply to every occupier in a property are likely to be rare. In addition, it is unlikely that persons who are in the country without the Right to Rent, and presumably therefore at risk of deportation, are going to want to remain in a property where they have been identified by the Home Office and they are therefore likely to seek to move long before any s33D(3) notice has expired. However, where a landlord wishes to use such a notice the rules now all match up.