Landlords – You are now Immigration Officers and will be fined up to £3000 if you do not do the checks!

The Immigration Act 2014 Introduced the concept of the “right to rent” to the private rental sector.

It requires Landlords and their agents to check the immigration status of prospective tenants at the onset of the tenancy. A person without a “right to rent” cannot rent a property.
It came into force on 1st February 2016 nationally (having been piloted in various regions last year) but it is still going through Parliament ( currently at the Lords Committee stage) so it may be substantially changed.

It applies not only to Assured Shorthold tenancies but all residential lettings with certain exceptions such as holiday lets, student accommodation supplied by colleges/ universities, employee accommodation and leases over 7 years.

A Landlord must NOT let a property as a tenant’s only or main residence unless he/ she can establish ANY adult in residence has a right to be in the UK , so must check the status of all adults over 18.

It currently applies to any new tenancies but that may change.

The Landlord is responsible for carrying out the checks unless the Landlord’s written agreement with the letting agent provides for the agent to do it. If it is silent then the landlord is responsible.

Prospective tenants who have a right to rent will either have a Permanent right or a time-limited right.

A Permanent right to rent will be held by British Citizens, European Economic Area (EEA) nationals and Swiss nationals.

Time Limited right to rent includes:-
i) Having valid leave to enter or remain in the UK for a fixed time
ii) Having an entitlement to remain in the UK due to Acts of Parliament or by European Union treaties and Regulations.

Rights to rent checks last a year, regardless of how long the tenants have to rent. .
Tenants with a permanent right to occupy only have to be checked , once, at the start of the tenancy.

Where the tenant has a time limited right to rent, the landlord needs to note when the right ends and not less than 28 days before that date, check again the right to rent or on the anniversary of the last right to rent check.

Children do not need to be checked but the landlord should note the date of birth of any children so a check is carried out when any child becomes an adult ( especially when the right to rent is because of the child)

What checks do Landlords have to do :-
1. Identify all adults in the property
2. Obtain ORIGINAL documents as per the lists provided
3. Check them IN THE PRESENCE of the document holder.
4. Take full copies and retain them with the DATE on which the check was made
Details of the relevant documents and examples are on the Government website

The landlord is not expected to be an expert on the documents but care should be taken to check them carefully for any obvious flawsIf the document appears genuine and the landlord keeps copies then the landlord has a statutory excuse against any proceedings against him/ her.
If in doubt you can call a help line 0300 069 9799.

If a tenant does not have ID the Landlord can ask the Home Office to do a check but must however have the tenant’s Home Office reference number. With 2 days the Home Office will say Yes or No.
If the Tenant’s or other occupier’s right to rent has expired the Landlord does not have to evict the tenant/ occupier but the Landlord must report this to the Home Office as soon as possible giving :-
1. The full name of the occupier
2. The address that they are occupying
3. The name and contact address of the Landlord
4. The name and address of the Landlord’s letting agent ( if any)
5. The date that the occupier first took up possession
6. Copies of the documents on the Landlord’s file from the initial Right to rent check.

What are the penalties ? There are civil law penalties being up to £3000 for repeat offenders. Fines were made in the pilot areas at an average of £800.

Landlords can appeal against penalties and will have to show:
1. That they carried out the initial checks and kept the evidence of doing the checks
2. They did the follow up c heck in the time limit and contacted the Home Office when the occupier did not have the right to rent

This creates a Statutory Excuse.

Presumably the Landlord will have to make sure he/ she is continuously aware who is in the property and ensure that all over 18 year olds have a right to rent.

Landlords can also claim that they are not responsible i.e. that their Agent was or the tenant is the tenant sublets ( with consent of the Landlord) .

If the property is subject to private letting licencing provisions with the Local Authority then it should be assumed that showing compliance with the Right to rent provisions will be required by the Council.

Jeremy Teall
Partner
PRINCE EVANS SOLICITORS LLP

Commercial Mediation Law Firm of the Year : Corporate Intl Magazine 2013, 2014 and 2015 Awards
Global Law Experts – Recommended Firm