On 24 June 2016 the right to live in the United Kingdom for over 3 million people of its people was suddenly cast into doubt. There are estimated to be over 3 million citizens of other EEA countries living in the UK. The total number may be higher if their family members (spouses, parents, others) from outside the EU is taken into account. Many, probably the vast majority, do not have residence documents because under EU law they do not need them.
Following the outcome of the referendum we were not only contacted by concerned EU nationals but UK business owners who were worried about what Brexit would mean for their existing EU members of staff who provide a valuable contribution to their business.
The common question that I was being asked was not how can I protect my business? But how can help my staff and make sure that they understand their position and status in the UK because they are very confused and worried.
The first point to make clear is that the referendum on 23 June 2016 has no immediate legal effect and does not change anybody’s legal status.
For the UK to leave the European Union, the British Government will need to invoke or trigger Article 50 of the Treaty on European Union. This is the legal means by which a Member State may voluntarily leave the European Union. It states that unless the departing country and the rest of the EU can agree something different, the departing country will cease to be a member 2 years after Article 50 is invoked. The British Government has not yet invoked Article 50. We do not know when that will occur. Once Article 50 is triggered, free movement laws will cease to have effect 2 years after that date. In the meantime, all laws of the European Union will continue to operate as before. After the end of the two year period, though, free movement laws will cease to have effect and any EU citizens and their families in the UK will become unlawfully resident unless some specific provision is made for them.
We do not know what sort of settlement between the UK and EU will emerge. Something will be negotiated but we do not know what or to whom.
Despite the hesitance of the Government to make any commitment on the future of EU nationals, it still seems highly likely that transitional arrangements will be made and those most likely to benefit from any such arrangement are:
1. EU nationals and family members who have already acquired permanent residence and
2. EU nationals who have an EU right of residence but have not yet acquired permanent residence, and their family members.
Registration Certificate or Document confirming Permanent Residence?
Anyone employee who thinks they qualify for permanent residence would be well advised to make an application for a permanent residence. This is partly to get ready for any transitional arrangements but is also to give people who do not qualify now a chance to make sure they do qualify. To put it another way, it will be at least two years before EU free movement law ceases to apply and that may be enough time for some people to ensure they do qualify for permanent residence, or at least are on the road to doing so.
In short, any EU national in the UK will need to evidence five continuous years of a qualifying activity. The five year period could be any five year period, not just the last five years. You can also “mix and match” your qualifying activities, so you can combine say 2 years of employment with 3 years of being a student.
For those in continuous employment over the five year qualifying period the application process and supporting documents should be fairly straightforward.
In some instance EU staff may not only have acquired permanent rights of residence but they potentially may be eligible to naturalise as British Citizens.
If an employee falls into the category of those who do not at present qualify for permanent residence at this stage then then it would be advisable for that EU nationals and his family members apply for Registration Certificates or cards as formal evidence of their current status in the UK with one eye on the future.
At this stage as an employer it is important for you to understand the position as it stand today and provide the support, assistance and information that your employees need particularly, those who are still uncertain about what they should do to best protect their position.
I am private Landlord (or I own several rental properties) and I am not sure what the immigration “Right to Rent” checks means for me and what should I be doing to protect myself?
Investing in residential property has traditionally delivered better returns than the more traditional investment asset classes is usually a significant part of any wealth management strategy.
The Immigration Act 2016 came into effect on 1st December 2016, consolidating the Right To Rent regulations that came into effect in February. The new legislation means that agents acting or landlords, will be committing a criminal offence if they have "reasonable cause to believe" that the apartment or house they are letting is being rented by a disqualified tenant.
It is now also an offence for agents who have "reasonable cause to believe" that their landlord client is letting to a tenant disqualified because of their immigration status, and who go ahead with the management of the property. The penalties for both offences on indictment are imprisonment for up to five years and/or an unlimited fine; penalties on summary conviction are imprisonment for up to 12 months and/or, again, an unlimited fine.
Therefore, it is becoming ever more important for property investors to make sure that they take the appropriate steps to ensure that they are compliant with the new regulations, particularly if they do not use a lettings agent or a managing agent.
The starting point must be that landlords must check all new tenants and make sure that the any tenant can legally rent your residential property. Before the start of a new tenancy, you will need to undertake checks for all tenants aged 18 and over, even if:
they’re not named on the tenancy agreement there’s no tenancy agreement the tenancy agreement isn’t in writing
Once you have ascertained which adults will use your property as their main home you will need to ask for original documents that prove the tenant can live in the UK, for example a biometric residence permit, a vignette (HO sticker in a passport) or an Immigration Status document.
Once you have been provided with the following documents then you will need to check for the following whilst you are with the tenant:
the documents are originals and belong to the tenant
the dates for the tenant’s right to stay in the UK haven’t expired
the photos on the documents are of the tenant
the dates of birth are the same in all documents (and are believable)
the documents aren’t too damaged or don’t look like they’ve been changed
if any names are different on documents, there are supporting documents to show why, e.g. marriage certificate or divorce decree
If the tenant is arranging their tenancy from overseas, you must see their original documents before they start living at the property.
In addition to the verification process the Regulations require landlord’s to make copies of the documents making a note of the date that you carried out the right to rent check. Make sure that you keep copies of the tenant’s documents for the time they’re your tenants and for one year after.
In some instances tenants may not be able to provide you with the documents, for example if they have made an application to renew or extend their leave and their application is currently being processed by the Home Office. In these circumstances you will need to make use of the Home Office Landlord Checking Service and they will come back to you within 2 working days with an answer as to whether or not you can rent the accommodation to the tenant.
Provided you have carried out the correct verification procedures and have protected yourself by making sure that you have kept evidence of this you would have a defence to any possible sanction.
If you are in any doubt then do not rent a property to a prospective tenant unless you are sure they have the correct documents.
A landlord’s responsibility does not necessarily end after the initial checks have been completed. If you don’t make a further check and your tenant’s permission to stay runs out you could be subject to a civil penalty.
Depending on which is the longest, you must make a further check just before either:
the expiry date of your tenant’s right to stay in the UK 12 months after your previous check
Income generation and the potential for capital appreciation means that property will continue to be attractive to investors but any landlord must be aware of the responsibility that the legislation places upon them so that they can continue to benefit from the rewards of their investment without leaving themselves open to a civil penalty or criminal sanction.