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All landlords proposed to check tenants Rights to rent under new Immigration rules

4th September 2015

In December 2014, the government launched a pilot scheme in the Midlands and Birmingham areas making landlords responsible to check that any tenants moving into a property or living in a property of theirs had a legal right to rent a property in the UK under Immigration Act 2014. In august 2015, an announcement was made that this scheme would be rolled out nationally and apply to every landlord in the country.

What this means is that every landlord has to be sure that their tenant is who they say they are and carries the correct permissions to live in the country for the time contracted, this policy has proven to be very controversial as landlords will be liable to civil penalty if they get this wrong and it has added an additional burden of paperwork on the already struggling sector. 

A number of concerns have been raised by the sector in the day to day operation of this new rule for example ref the expectations upon private landlords and agents alike to be experts in checking documents, potential discrimination of foriegn tenants, all things that landlords have never had to consider before. There was also a promise of “landlords will not be expected to evict” that was initially made which now seems to have been revoked, all this lead to a promise of “light touch” enforcement from the immigration office, and in practice it does seemed to have gone smoothly, but more changes are afoot. 

Under Section 22 of the Immigration Act 2014, landlords “must not authorise an adult to occupy premises under a residential tenancy agreement if the adult is disqualified as a result of their immigration status.” The legislation does not apply to those under 18 or those not renting the property as their main home, although the Home Office’s code of practice on the civil penalty scheme does recommend assuming the property is being let as a main home if there is any doubt

In order to check a tenant’s immigration status, landlords will need to view original immigration documents in the presence (or via live video link) of the applicant, make copies of the documents, and keep the copies for 12 months after the tenancy expires. The checks can take place no more than 28 days before the commencement of the tenancy agreement. 

The code of practice sets out a list of acceptable documents to prove a tenant’s right to rent, including UK, Swiss or EEA passports (current or expired), a biometric immigration document, or a residence card. For applicants whose immigration documents are held by the Home Office and are therefore not available, the Home Office has created a Landlords Checking Service. This online tool will provide an answer as to the applicant’s right to rent. If no answer is received from the service within 48 hours, the landlord will have a statutory excuse against liability for a penalty

If a check shows a tenant has unlimited right to rent, the landlord will not be required to carry out further checks prior to any subsequent tenancy renewals. If, however, the tenant has limited right to rent, landlords will have to carry out repeat checks. For example, if a tenant has leave to remain until 1 July 2018, their right to rent will expire on that date as well, and it will be the responsibility of the landlord to carry out additional checks before that date. For tenants with limited leave to remain, they only need to demonstrate their eligibility on the commencement date of the tenancy agreement; the landlord will have a statutory excuse for a year. Even if the tenant’s leave expires a day after the agreement is commenced, no follow-up checks will be required in the first year.

If a follow-up check indicates an occupier no longer has the right to rent, landlords will be required to report this to the Home Office “as soon as reasonably practical”. However, once this report has been made the landlord is under no obligation to evict the occupier. 

With regards to new tenants, landlords are under no obligation to report an applicant having no right to rent to the Home Office, provided they do not allow them to occupy the property. If a landlord rents to a person with no right to rent, or does not report the expiration of an occupier’s limited right to rent, they will be liable for a civil penalty. 

The penalties for a breach of regulation range from £80 for a one off first offence to £3000 per illegal occupant for repeat or multiple breaches, so consideration needs to be given as to how as landlords and agents we monitor this ongoing

However, On 3 August 2015, Greg Clark, Secretary of State for Communities and Local Government, announced that new measures for evicting tenants with an expired right to rent would be included in the forthcoming Immigration Bill: 

“Measures in the forthcoming Immigration Bill will go further, and will enable landlords to evict illegal immigrant tenants more easily, by giving them the means to end a tenancy when a person’s leave to remain in the UK ends - in some circumstances without a court order. This will be triggered by a notice issued by the Home Office confirming that the tenant no longer has the right to rent in the UK. The landlord would then be expected to take action to ensure that the illegal immigrant tenant or occupant leaves the property”.

On 3 August 2015, the Government announced that the forthcoming Immigration Bill would amend further the rules around right to rent when it is rolled out, with landlords who persistently failed to carry out checks facing up to a possible five years imprisonment. It was also announced that the Bill would include measures to make eviction of tenants without a right to rent easier.

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