The Immigration Act 2014 makes it mandatory for every landlord letting residential property in England to make checks before they enter into a new tenancy agreement after the 1st February 2016. The purpose of the checks is to ensure landlord's only let properties to tenants with the right to rent in the UK , or put it another way your tenant has the right to live and work in the UK. A pilot scheme ran in the West Midlands before its introduction across England. That pilot scheme identified a number of persons seeking accommodation in the UK who did not have the right to live here. A substantial proportion of them were not known to the Home Office.
The effect of the changes are to put landlords on the front line against illegal immigration. This needs to be taken seriously as there are civil penalties for landlords who let their properties after the 1st February 2016 to tenants who don't have the right to rent, and the Immigration Bill 2015 presently before Parliament proposes to make it a criminal offence for a landlord to knowingly let a property to someone who does not have the right to rent. If you are a private residential landlord you need to understand the changes make sure you comply. Compliance is not too onerous so please don't panic.
Who is required to undertake right to rent checks and when?
As of 1 February 2016 landlords of property in England cannot permit any adult to occupy a property under a 'residential tenancy agreement' unless the tenant has what is termed the 'right to rent' in the UK.
Landlords must perform specific checks to establish if an adult has the right to rent. It includes corporate and private landlords, sub-leases, sub-tenancies, and lodgers.
Only tenancies entered into on or after 1 February 2016 are covered It applies regardless of whether the contract is written or verbal.
Landlords can appoint an agent on their behalf who will then be liable in place of the landlord but you must ensure the agreement of the agent to do the checks is in writing.
The check must be undertaken before the tenancy commences but note more than 28 days prior to it commencing.
What initial steps must be taken to complete the checks?
There are four steps a landlord must perform to successfully complete an initial right to rent check:
- find out all the persons above the age of 18 who will be living in the property as their main residence
- obtain original versions of acceptable evidence showing each person above 18 who is to live in the premises have the right to rent (often that is a simple as their current passport but there is a list of what is required in the Home Office guidance available on line)
- retain a copy of the evidence and record the date when the right to rent check was performed on the copy, and
- retain the copy throughout the lifetime of the residential tenancy agreement and for one year after it ends.
The Home Office website link is: www.gov.uk/government/publications/right-to-rent-document-checks-a-user-guide. All Landlords about to let a property in England should make sure they visit and download a copy. It contains all the documents you will need to see and copy.
The Home Office guidance sets out two different types of tenant, those who have the right to be here permanently and those entitled to be here for a limited period. Different action is required depending which it is.
If the prospective tenant is a British citizen or a citizen within the European Economic Area or a Swiss national all you require is their current passport. There are lists in the guidance of alternative documents if a passport is not available.
Particular care needs to be taken if the right is time limited.. The Home Office guidance tells you what you will need to see and copy.
The guidance states the check should be done in the presence of the tenant either face to face or by video link. It applies to all adults living in the property, not just those named on the tenancy agreement.
A landlord should check that the document appears genuine, including that the photograph and date of birth reflect the appearance of the tenant.
What follow-up steps must be taken?
For those with limited immigration status there is an ongoing obligation to conduct a follow up check within 12 months or before the relevant leave expires, whichever is the later.
Where a tenant/occupier no longer has the right to rent, the landlord must report them to the Home Office.
For how long must the documents be retained?
The copy documents must be retained throughout the tenancy and for one year afterwards. It will be necessary to store these documents securely and not retain them for any longer than is necessary. If you are storing an electronic copy in the form of photograph stored on your computer or mobile phone, you will need to comply with the Data Protection Act 1998.
What are the penalties for failing to undertake an appropriate check?
A civil penalty of up to £3,000 per tenant will be imposed for allowing a person to occupy who does not have a right to rent.
If a prospective tenant is not able to produce evidence of their right to rent you must not let the property to them. There is no other obligation under the Act to do anything else.
If a landlord discovers a tenant who had a time limited right to rent but that has expired, they must notify the Home Office to avoid a civil penalty being imposed. The landlord is not obliged to take steps to take possession of the property under the Immigration Act 2014, but that may change if the Immigration Bill 2015 becomes law.
Are there any potential legal pitfalls to be aware of?
Surveys carried out suggest some 42% of landlords said they would be unlikely to rent to those without British passports and, more worryingly, over 25% said they would be less likely to rent to someone with a 'foreign name or accent'. If a landlord positively discriminates on grounds of religion or race they are likely to fall foul of the Equality Act 2010 and face claims for compensation. Care should be taken in what you say as a landlord. If an application is made to rent your property you should give proper consideration and treat each application the same. You are not obliged to rent your property to a particular tenant so if you have the luxury of having more than one applicant you are at liberty to rent it to whomever you chose. You must not however use the Right to Rent checks to discriminate between prospective tenants.
The potential data protection issues have been touched on so landlords need to be mindful of their existing obligations under DPA 1998 and ensure they protect personal data by keeping it securely and only for as long as is necessary.