Concern about uncontrolled immigration is now widespread across Europe, more recently following the terrorist attacks in Paris, leading to demands by member states to curb the free movement of persons through the EEA and EFTA.

Under a new scheme to be rolled out from 1 December 2014 under the Immigration Act 2014, a landlord should not authorise an adult to occupy a property as their only or main home under a residential tenancy agreement unless the adult is a British Citizen, or EEA or Swiss National, or has a right to rent accommodation in the UK. Someone will have the right to rent in the UK provided they are present lawfully in accordance with the immigration laws.

The Home Office has introduced a code on illegal immigrants that places an obligation on landlords to check the immigration status of their tenants before entering into tenancy agreements for residential accommodation. The scheme was launched in the Midlands on 1 December 2014 and is likely to be extended across the UK during the course of this year.

The scheme will apply to residential tenancy agreements entered into after the date on which the scheme is implemented.

The Home Office code provides that if a landlord acquires properties with sitting occupiers, the new landlord should confirm the document checks that have been undertaken and obtain evidence to demonstrate this. A failure to comply by letting accommodation to a tenant who does not have the right to rent, may give rise to a civil penalty of up to £3,000.

A residential landlord can establish a "statutory excuse" by:

  • conducting an initial right to rent check before authorising an adult to occupy rented accommodation;
  • conduct follow-up checks at the appropriate date if initial checks indicate that an occupier has a time limited right to rent; and
  • make a report to the Home Office if follow-up checks indicate that an occupier no longer has the right to rent.

The majority of occupiers will either be British or EEA or Swiss nationals, or have an unlimited right to rent. Therefore, in most cases a landlord will have to do no more than undertake an initial “right to rent check” to establish an excuse against the penalty.

Until the new scheme has been rolled out, it remains to be seen whether practically, it will be easier simply to ask for ID at the outset of each tenancy in order to avoid the risk of a civil penalty. However, there are advantages for a landlord who does obtain ID from his tenant in that if any action is required down the line to recover rent arrears, having proper ID can assist in any enforcement action. For residential landlords, there may therefore be a positive side to this further regulation.