Injury without borders: When Personal Injury Claims and Immigration Law interlink

Tackling illegal immigration has been declared a priority by the prime minister, as was the case with previous governments.

The vast majority of migration into the UK is legal - this includes people granted permission  to enter the UK to work, study, reunite with family members or for other authorised purposes.

In the claims arena, we have seen an increase in personal injury claims being submitted by migrants who are here legally, as well as those without legal residency, and these bring unique issues which are not always thoroughly aired. 

If serious injuries are suffered, it is a frequent feature of such claims that the claimant’s accommodation is considered cramped and unsuitable to facilitate rehabilitation.  

However, the question of whether the claimant has a lawful residency status must be considered before any steps are taken to move the claimant into more suitable accommodation.

Both claimant and defendant legal representatives must tread very carefully if the claimant was living in the UK illegally pre-accident.

The Immigration Act 2014 introduced the Right to Rent provisions requiring private landlords to verify that prospective tenants have the legal right to reside in the UK before allowing them to rent a property. It introduced the power to impose a civil penalty on private rental sector landlords, homeowners or lettings agents who rent property to an individual with no legal right to reside in the UK. 

The purpose of these rules is to deny those who do not have permission to enter or remain in the UK from gaining access to the rental sector, and to address persistent rental of property to irregular migrants by landlords.

Even if someone else signs the tenancy agreement on behalf of a person with no legal residency status, the landlord still has a legal obligation to check the immigration documents of everyone living there.  Failure of the landlord to do so would be an offence.  

The Immigration Act 2014 Right to Rent checks applies only in England. The following guidance has been issued Landlord's guide to right to rent checks - GOV.UK :

“You must conduct a right to rent check before you rent to a prospective tenant to ensure they have a legal status in the UK and are therefore allowed to rent. This includes everyone over the age of 18, including British citizens, who will use the property as their only or main home, even if they are not named on the tenancy agreement and regardless of whether the tenancy agreement is written, oral or implied.”  

With this legislation and framework in place, defendants need to proceed with caution in respect of any interim payment requests.  

Whilst generally the claimant does not need to account to the defendant in respect of what any interim funds requested would be used for, we suggest that before any payment is made, the defendant should seek assurances that any interim funds will not be used to facilitate a move to privately rented accommodation.    

Facilitating such a move if the claimant does not have Right to Rent arguably puts the defendant at risk of being found to be “assisting unlawful immigration” which is an offence under s25(1) of the Immigration Act 1971 .

If an interim payment application is made, to ensure transparency and that the claimant is not attempting to rent property with funds from the defendant when he or she has no right to do so, the court should be invited to exclude any accommodation costs in its overall assessment of the value of the claim when considering the Eeles test, unless the claimant can show, to the satisfaction of the court, their right to rent. 

Doing so protects the defendant insurer’s position and can also feed into the overall strategy in driving these difficult cases towards settlement .  Disclosure should be sought of any Home Office application(s) if there has been an attempt to regularise the claimant’s immigration status.  Depending on the prospects of the claimant remaining in the UK, the defendant’s position will often be that the valuation of any future damages must be based on those heads of loss being incurred in the claimant’s country of origin.