How to appeal against civil penalties for Right to Rent Breaches

The Home Office can issue civil penalties against landlords and agents where they have granted a tenancy for a residential property in England to an individual who has no right to rent under Part 3 of the Immigration Act 2014.

The stakes are high for landlords and agents as the civil penalty fine can be as high as £3,000 per occupier.

There is a process to object to the civil penalty, but as the review will be determined by another caseworker within the Home Office it is likely that the results of the internal objection route will not always lead to a satisfactory outcome.

Landlord and agents who receive a civil penalty notice do have a right of appeal to the County Court, but this can only be exercised by first objecting to the civil penalty.

How to Object to a Civil Penalty Notice

Objections are made by giving notice in writing with all of the contents listed in paragraph 10 of the Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) (Order) 2014, which are:

10. A notice of objection must contain—

(a) the reference number of the notice given under section 23(1) or section 25(3) of the Act;

(b) the name and contact address of the landlord;

(c) the name and contact address of any agent;

(d) the name and address of the occupier in respect of whom the penalty was issued;

(e) the full grounds of objection; and

(f) any documents to be relied upon in support of the objection.

Notice of objection must be made within 28 days of the date stated on the penalty notice as the date on which the penalty notice was given. The Home Office should then respond within 28 days of the date on which the notice of objection is given to them.

It would be sensible to keep a copy of the notice of objection and proof of postage.

How to Appeal against a Civil Penalty Notice

The Home Office might cancel or reduce their civil penalty when they review the objections, but they are entitled to take no action or even increase the penalty at that stage.

A right of appeal exists if:

1. The penalty is upheld or reduced,
2. The penalty is increased, or
3. The Home Office does not respond within 28 days.

If the penalty is increased another civil penalty notice must be issued, which presumably gives the right to raise objections again. Indeed, the statutory Right to Rent Code of Practice suggests that landlord or agents should object to the new penalty and wait for a determination of their objection before appealing. However, the Immigration Act 2014 is very clear that a direct right of appeal exists in these circumstances.

To start an appeal, you must complete Form N161 and submit this to any County Court hearing center with the appropriate fee. Form N161 is not designed for these appeals and many parts of the form will be irrelevant, but it is the correct form to start a statutory appeal to the County Court.

The Court will seal a copy of Form N161 and the completed appeal form should serve the appeal papers on Secretary of State for the Home Office at Government Legal Department, 1 Kemble Street, London, WC2B 4TS.

Conduct of the Appeal

It is likely that specific guidance on appeals to the County Court under Part 3 of the Immigration Act 2014 will be added to Practice Direction 52D of the Civil Procedure Rules (which governs statutory appeals) in due course, but this has not happened yet.

The appeal may be brought on the grounds that the appellant is not liable for a penalty, the appellant has a statutory defense under s24 or s26 Immigration Act 2014, or the amount of the penalty is too high. The Court has the power to cancel the penalty or reduce the penalty, but not to raise it. There is no power for the Court to extend the deadline to bring an appeal.

The appeal is a re-hearing of the Home Office’s decision to award the penalty, which means that the Court can make its own decision about the facts and does not merely ‘review’ the original decision. The Court can take into account any matters it thinks relevant (including matters not known to the Home Office), but oddly it is required by section 30(3)(a) to take into account the statutory Code of Practice in force at the time of the appeal, rather than the version in force when the relevant Right to Rent ID checks were carried out.

This appears to be unfair to any landlord who carried out checks which were in accordance with the Code of Practice available at the time but which are later not deemed compliant. The current version of the Code of Practice appears to acknowledge this, stating in Chapter 1:

“This is the second version of this Code, and it will apply with effect from 1 February 2016. The earlier version of this Code will still apply for tenancies which began before this date. However, this version of the code should be applied for repeat Right to Rent checks if they are required after it comes into effect: this is the case for tenancies which began prior to this.”

This makes all the more strange that the Courts are required by the Immigration Act 2014 to take into account the Code of Practice in force at the time of the appeal.

The courts have wide discretion over how to determine appeals and it remains to be seen how they will interpret the requirement that landlord carries out all reasonable steps to verify that documents are genuine. At this time is also difficult to assess how receptive the Court will be to arguments that penalties should not be awarded because there has been a breach of Home Office policy.

The uncertainty surrounding appeals means that landlords and agents may be better to pay promptly to benefit from the 30% reduction offered by the Home Office when payment is made in 21 days, rather than risk an appeal.