Right to rent Immigration checks and the potential pitfalls for the unwary Landlord
Sweeping changes affecting landlords came into effect on 1st February 2016 by virtue of the Immigration Act 2014, which introduced a requirement for landlords of private rental accommodation to conduct checks to establish that new tenants have the right to rent in England.
Who must be checked?
Landlords must check that a tenant or a lodger can legally rent a residential property in England. Prior to the commencement of a new tenancy, it should be established that all tenants are aged 18 years and over notwithstanding that;
- they may not be named on the actual tenancy agreement;
- a tenancy agreement does not exist;
- the tenancy agreement is not in writing. It should be noted that all new tenants should be checked as opposed to those tenants which a landlord believes are not British citizens. If the tenant has a limited time period within which to remain in the United Kingdom, the requisite checks will need to be conducted in the 28 days prior to the commencement of the tenancy otherwise, this should be done within 28 days of the commencement of the tenancy. It will not be necessary to conduct checks on tenants in certain types of accommodation such as social housing and care homes and details may be found on the government website relating to right to rent provisions.
How are checks carried out?
- It will be necessary for the landlord to check which adults will be residing at the property as their only or principal home;
- Details of the original documents which must be inspected and which permit the tenant to reside in the UK appear at https://www.gov.uk/government/publications/right-to-rentdocuments-checks-a-user-guide);
- The documents authenticity and ownership should be verified in the presence of the tenant;
- Copies of the documents should be made and retained (https://www.gov.uk/check-tenantright-to-rent-documents/copy-documents) as should the date of the actual check.
A fine of up to £3,000 (https://www.gov.uk/penalties-illegal-renting) in respect of each illegal immigrant may be levied upon the unwary landlord. Check if the property is used as the tenant’s only or principal home A property would usually be the tenant’s only or principal home if;
- they reside there most of the time;
- they keep most of their belongings there;
- they are registered to vote at the property;
- they are registered with their GP surgery at that address;
- their children or partner resides with them. Check the original documents Whilst the landlord is in the presence of the tenant, it is necessary to check that;
- the documents are original and belong to the tenant;
- the photographs on the documents are of the tenant;
- the dates of birth are the same in all documents (and are believable);
- the dates relating to the tenant’s right to remain in the UK have not expired;
- If any names are different on documents, there are supporting documents to verify why, e.g. marriage certificate or divorce decree.
If the tenant is making the requisite arrangements relating to their tenancy whilst overseas, it is necessary to see their original documentation prior to the tenant residing at the property. It will be necessary to follow the landlord’s code of practice on illegal immigrants and private rented accommodation (https:gov.uk/government/publications/right-to-rent-landlordscode-of-practice).
In addition to increasing landlords’ costs, there are also concerns that legitimate tenants who do not have a UK passports could be discriminated against- given that they are perceived as posing a greater risk or indeed cost to the landlord.
A potential trap for the unwary landlord involves a scenario whereby a document is verified at the commencement of a tenancy but expires within the period of the tenancy at which point, it should be renewed.
The actual checking process itself is acutely difficult given that the range and types of documents being checked is considerable and given that the average landlord in the UK is simply unable to determine what a particular document e.g. a passport from a particular country should look like let
alone its authenticity.
Where a landlord is unable to confirm a tenant’s status on a re-check they must report that tenant to the Home Office but what then? will the tenant remain in occupation of the property exercising rights under the European convention or be removed by the Home Office and who will compensate the landlord for any loss incurred by reasons beyond his control?
Given these circumstances, the unwary landlord may elect to absolve himself of liability by ensuring that a letting agent assumes the responsibility, which must be confirmed in writing in clear terms.