The Validity of Pre Deregulation Act Section 21 Notices From 1 October 2018

On 30 August 2019, Black Antelope Law acted for the successful appellant in a County Court appeal on the correct interpretation of s.41(3) Deregulation Act 2015. The decision will be of assistance to those representing both landlords and tenants in possession claims.

Background Facts

The Respondent landlords (R) granted the Appellant (A), a 6-month fixed term AST of a flat on 20 June 2011. On the same date, A was also served with a s.21(1)(b) notice, which expired on 19 December 2011.

On the 20 December 2011, A’s tenancy became a statutory periodic tenancy under s.5(2) Housing Act 1988. Thereafter A continued to occupy the property under the periodic tenancy.

On 6 February 2019, R issued a claim for possession under the accelerated possession procedure which was defended. At a possession hearing on 15 April 2019, DDJ Wright in the Clerkenwell and Shoreditch County Court granted R an order for possession on the basis that s.36 and s.41 Deregulation Act 2015 did not invalidate the s.21 notice relied upon by the landlords as it refers to ASTs and not periodic tenancies. However, DDJ Wright granted permission to appeal as she considered that the law required clarification as landlords were routinely arguing in possession claims that pre-1 October 2015 tenancies were not caught by s.41(3) Deregulation Act 2015.

The appeal was listed before HHJ Roberts on 30 August 2019, who allowed the appeal and set aside the order for possession. HHJ Robert gave judgment as follows:

The Appellant’s submissions were that the purpose of the Deregulation Act was to offer greater protection to tenants and the Respondent did not argue to the contrary.

 The Appellant submitted that the notice was invalid under s.21(1D) as it was served more than 6 months before the claim for possession commenced.

 It was submitted that s.41(2) of the Deregulation Act 2015 contains a conjunctive “and” and so two scenarios are covered, periodic tenancies which came into being after 1 October 2015 and periodic tenancies which came into being before 1 October 2015.

 s.41(3) says after 3 years, it will apply to any AST otherwise exempt.

 The Appellant says that an AST includes a contractual or periodical AST under Housing Act 1988.

 Applying the law, between 1 October 2015 and 30 September 2018, s.21(4D) would not have applied on the facts of this case. Then on 1 October 2018, s.41(3) Deregulation Act 2015 came into force and any tenancy that was excluded as of 1 October 2015 would be subject to the Deregulation Act 2015.

 It was common ground that the notice was not served within 6 months of commencing possession proceedings.

 It was also submitted that if there is a lacuna in the Deregulation Act 2015 because it does not cover periodic tenancies before 1 October 2015, it was permissible to apply a purposive construction applying Wentworth Securities v Jones. Section 41(3) was a longstop provision intended to cover all tenancies and the court should adopt a construction to enable periodical tenancies to be caught by the legislation.

 The Respondents says the section 21 notice was valid back in 2011. They say that s.41(3) only applies to ASTs in existence on 1 October 2018 and this tenancy was a periodic tenancy. The Respondents say that subsection (2) of the Deregulation Act 2015 does not deal with periodic tenancies prior to 1 October 2015.

 If it was the intent for the legislature that s.41(3) should apply to all tenancies, then s.41(2) would not differentiate between prior to 1 October 2015 and after 1 October 2015 and this means that it was intended for periodic tenancies which came into being before 1 October 2015 to be excluded.

 The court cannot identify a mischief as the Deregulation Act 2015 already differentiates between periodic tenancies.

 In my judgment, this is a pure case of construction and the Appellant’s submissions are sound and the learned judge did err.

 s.41(3) is a long stop. It gave landlords 3 years to prepare for the full application of the Deregulation Act 2015. As a matter of pure construction, the provision applies to “any” AST, whether contractual or periodic.

 Looking at s.41(1), it refers to tenancies after 1 October 2015. Subsection (2) is expressly subject to subsection (3).

 Contrary to the Respondent’s argument, subsection (2) is dealing with two separate scenarios: s.5(2) tenancies after 1 October 2015 and an AST granted before 1 October 2015.

 Section 41(3) says any AST, and this includes any AST, howsoever created. Whether periodic or contractual.

I allow the appeal and set aside the order of possession”

Representation

The Appellant, Mr Adesegun Majiyagbe, was represented by Mr Simao Paxi-Cato of Counsel and Black Antelope Law.

A summary of this case appears in the October 2019 edition of Legal Action Magazine.

LGBT Asylum Claims for Bangladeshi Nationals

How are LGBT Asylum Claims from Bangladeshi Nationals viewed in the UK?

LGBT individuals with no or a precarious immigration status may be entitled to claim asylum in the UK if they have a well-founded fear of persecution should they return to Bangladesh.

Bangladesh remains one of 72 countries where homosexuality is illegal. In accordance with section 377 of the Bangladesh Penal Code, sexual activity between men, whether consensual or not, is illegal and punishable by a maximum sentence of life imprisonment. Freedom House reported in 2017 that “societal discrimination (against LGBT persons) remains the norm”.

In 2016, Xulhaz Mannan and Tonoy Mahbub, LGBTI activists were found hacked to death in Dhaka – a stark reminder of the intolerance and violence faced by sexual minorities. Their inability to trust law enforcement has often been justified as the National Human Rights Commission of Bangladesh has documented physical and sexual assaults on the LGBTI community by the police. Little has changed in recent years as sexual and gender minorities remain under “constant pressure and threat” in Bangladesh, according to Human Rights Watch’s World Report 2018.

LGBTI persons in Bangladesh form a particular social group because they share an unchangeable characteristic fundamental to their identity. If these LGBTI persons are in the UK and unable or unwilling (due to fear) to avail themselves of the protection of their own country, they may fall under the Refugee Convention’s (1951 UN Geneva Convention) definition of a ‘refugee’. The UK is obligated under international law to grant asylum to people who could be persecuted if they are returned to their home country.

When granting asylum, Home Office decision-makers primarily seek to find out whether a person will face a real risk of persecution on account of their membership of such a group. An LGBT person from Bangladesh is more likely to be successful if:

  • the person cannot live freely and openly as a LGBT person;
  • the person is unable to obtain protection from persecution; and
  • the person cannot relocate within the country to avoid the risk of persecution.

The Home Office has set out its general attitude to the above criteria in a Country Policy and Information Note published in November 2017. An LGBT person’s inability to live freely should go beyond merely attracting partners and maintaining a relationship. Their choice to live discreetly should not be a response to social pressure (cultural and religious reasons), rather it should be from a genuine fear of persecution. It is accepted that gay people are not systematically targeted and persecuted but may face persecution from non-state actors. Therefore, the specific facts of each case are crucial in influencing whether the above criteria are met.

Shaheen Mamun (Solicitor) of Black Antelope Law, alongside Counsel, Sharmistha Michaels of Drystone Chambers, have successfully represented several cases where Bangladeshi LGBT clients have been granted Refugee Leave to Remain at the First-tier Tribunal stage.

Sharmistha Michaels had the following to say:

‘The persecution of people because of their sexual or gender identity is unfortunately not a new phenomenon and the process of applying for asylum can be very daunting for members of the LGBTI community who are seeking safety and security through refugee status in the UK. People often have to face humiliating and bizarre questions and the allegation that they are simply lying about their sexuality at the asylum interview stage and before the First Tier Tribunal. We still see false stereotypes prevailing about how an LGBTI person should behave or appear, in decision letters, during cross-examination by the Home Office and even on occasion in the decisions of some Immigration Judges. This is despite the fact that Home Office Policy changed in 2015 in favour of a more sympathetic approach into the inquiry into an asylum seeker’s claim. Regardless of the problems with the conduct of asylum interviews for, the importance of these applications for a member of the Bangladeshi LGBT community seeking asylum is very clear, particularly given the criminalisation of same sex sexual activity, coupled with the worsening  situation for LGBT people in Bangladesh’.

How can Black Antelope Law help you?

If you identify yourself as either Lesbian, Gay, Bisexual, Transgender or Intersex (LGBTI), and cannot express this identity in fear of persecution you need to take action now.

Persecution is defined as the continued failure of a state to observe fundamental freedom and human rights coupled with the presence of serious harm by virtue of your membership to a particular social group: LGBTI.

As such, you have the right to Freedom of Expression by virtue of Article 10 of the European Convention of Human Rights, which offers you protection. Identification as an LGBT equates to membership of a particular social group, and therefore you may be eligible to claim Asylum. Asylum is a complex area of law riddled with a myriad of laws, rules and polices governing it. It is therefore essential to seek the most effective and streamlined guidance for the sake of your identity.

Equipped with extensive knowledge and experience, the human rights centric team at Black Antelope Law are dedicated to defending and protecting your rights. Black Antelope Law specialises in all UK Immigration Law matters and has developed an exceptional expertise in all LGBT Asylum claims beyond the Bangladeshi community. We have a notable reputation for successfully representing LGBT clients of all backgrounds when seeking asylum. Our team is trained with the requisite sensitivity and understanding in order to provide the most comfortable experience during the course of your case.  We are committed to helping members of the LGBTI community with these difficult applications and our team of experts can provide you with expert and sensitive advice on these claims. For more information, please contact us on 0330 223 3105 or [email protected] for a free initial discussion.