Part 2: Access to Services Section 39: Offence of leasing premises
This section amends Chapter 1 of Part 3 of the 2014 Act by inserting new sections 33A to 33C, creating four new offences related to letting private residential premises to adults disqualified from renting as a result of their immigration status. Section 22 of the 2014 Act provides that a landlord must not allow an adult who is a disqualified person to occupy property under a residential tenancy agreement, unless that person has been granted permission to rent by the Secretary of State. Section 20 of the 2014 Act identifies the type of arrangements to which the restriction on letting applies. Adults who are disqualified from renting and therefore from accessing privately rented property under a residential tenancy agreement are defined at section 21. Sections 23 to 30 of the 2014 Act provide for the operation of a civil penalty scheme to penalise landlords and agents who rent properties without making appropriate right to rent checks on their occupants. New section 33A creates two new offences relating to landlords. The first offence is committed if a landlord under a residential tenancy agreement knows or has reasonable grounds to believe that the premises are occupied by an adult disqualified from renting as a result of their immigration status (new section 33A(1) – (3)). This applies where any adult is occupying the premises, regardless of whether the adult is a tenant under or is named in the agreement. However, new section 33A(4) and (5) provides that in areas where the right to rent scheme is in force, the landlord is not guilty of an offence under subsection (1) if the adult has a limited right to rent (as defined at section 21(4) of the 2014 Act) and the eligibility period (as defined at section 27 of the 2014 Act) of the occupier has not expired, unless the Secretary of State has given a written notice to the landlord which states that the adult is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement.
	New section 33A(6) provides a defence for any landlord charged with the offence of renting to a disqualified person under subsection (1). The defence will be available to any landlord who has taken reasonable steps to end the tenancy within a reasonable period of time. In accordance with subsection (7), in determining whether the defence applies the courts must have regard to any guidance issued by the Secretary of State. Subsection (9) provides that the commission of an offence will not impact on a landlord or tenant’s ability to enforce any provision of the residential tenancy agreement they have entered into.
	The second offence (in new section 33A(10) is committed only if a tenant’s leave to remain in the UK expires during the course of a tenancy (having been valid when the tenancy was entered into), the tenant's eligibility period (as defined at section 27 of the 2014 Act) has expired, the tenant continues to occupy the property and the landlord knows or has reasonable cause to believe this has happened but does not notify the Secretary of State as soon as reasonably practicable. Subsection (11) makes it clear that the offence applies whether or not the landlord has been issued with a civil penalty notice under section 23 of the 2014 Act.
	New section 33B is concerned with two new offences relating to agents.
	New sections 33B(1) and (2) provide that an agent is guilty of an offence if the agent is responsible for carrying out right to rent checks on behalf of a landlord (under section 25 of the 2014 Act), knows or has reasonable cause to believe that the landlord will be authorising someone disqualified from renting to occupy the property if he enters into the tenancy agreement and has sufficient opportunity to notify the landlord beforehand, but does not do so.
	New sections 33B(3) and (4) provide that an agent commits an offence if the agent carries out right to rent checks on behalf of a landlord (under section 25 of the 2014 Act), a tenant’s leave to remain in the UK expires during the course of the tenancy, having been valid at the time the tenancy was entered into, the tenant's eligibility period (as defined at section 27 of the 2014 Act) has expired, the tenant continues to occupy the property and the agent knows or has reasonable cause to believe this has happened but does not notify the landlord and Secretary of State as soon as reasonably practicable.
	New section 33B(5) specifies that the agent commits an offence regardless of whether the agent has been issued with a civil penalty notice under section 25 of the 2014 Act.
	New section 33C is concerned with the penalties available where an offence has been committed under section 33A or section 33B.
	New section 33C(1) specifies that a landlord or agent who is guilty of an offence under section 33A or section 33B is liable to imprisonment for up to twelve months or to a fine (or both) on summary conviction or for up to five years’ imprisonment or to a fine (or both) if they are convicted on indictment.
	New section 33C(2) provides that if the offence is committed before section 154(1) of the Criminal Justice Act 2003 comes into force a landlord or an agent who is summarily convicted will be liable to imprisonment for up to six rather than twelve months.
	New section 33C(3) provides that, where an offence is committed by a body corporate but with the connivance or consent of an officer of that body corporate, the officer, as well as the body, will be treated as having committed the offence. The reference to an officer of a body includes a director, manager or secretary, or person purporting to act as such or, if the affairs of a body are managed by its members, a member. In the case of a partnership, where a partner or person acting as a partner has consented to, or been complicit in, the commission of an offence under section 33A or 33B, the offence will be treated as having been committed by that individual as well as the partnership (see subsection (5)).
	New subsection 33C(6) permits immigration officers to use powers provided in the 1971 Act such as entering and searching premises and searching persons in relation to these offences.
	Subsection (3) makes it clear that new sections 33A to 33C, and the new routes to eviction under new sections 33D and 33E, apply whether the tenancy was entered into before or after these provisions come into force. However, the offences contained in new section 33A(10), which applies to landlords, and section 33B, which applies to agents, will only apply in relation to a contravention of the right to rent scheme which occurs after these measures come into force.
	Subsection (5) provides that where two or more persons jointly constitute the landlord, any references to the landlord in section 33A are to be taken as references to any of those persons.
	Subsection (6) amends section 28A of the 1971 Act by inserting a subsection (9C) which provides that an immigration officer may arrest without warrant a person who, or who the immigration officer has reasonable grounds for suspecting, has committed or attempted to commit an offence under section 33A or 33B.