The Immigration Act 2014, which became law on 14 May 2014, contains provisions designed to prevent individuals who do not have the right to live in the UK from accessing private rented accommodation. The Government has recently announced that these provisions will be implemented on a pilot basis in Birmingham, Wolverhampton, Dudley, Walsall and Sandwell from 1 December 2014 with a view to the regime being rolled out more widely at a later date.
A working draft Code of Practice has also now been published which contains, amongst other things, guidance in relation to student accommodation.
In summary, the Act places a duty on private landlords to request evidence from a prospective occupier of their entitlement to be in the UK. If the prospective occupier is unable to produce appropriate evidence, the landlord should not enter into a residential tenancy agreement with them. Where a tenant sublets accommodation, the tenant will be a landlord for the purpose of these provisions. Failure to comply with this duty exposes the landlord to the risk of a civil penalty of up to £3,000 per occupier. The regime is similar to that which applies to employers who have a duty to prevent illegal working.
All residential tenancy agreements which grant a right of occupation for residential use in return for rent payments will be covered, unless they are an excluded tenancy agreement. Student accommodation falls into the excluded tenancy agreement category and includes all halls of residence (whether the landlord is an educational institution or private accommodation provider) and any accommodation provided for students directly by a higher educational institution. Residential tenancy agreements are also excluded where a student has been nominated to occupy the accommodation by a higher educational institution. The draft Code of Practice makes clear that such a nomination could take a variety of forms but will require communication between the institution and the landlord providing confirmation that the student will take up occupation under the residential tenancy agreement. Landlords are advised to retain a copy of the nomination document relied upon to support a claim to this exemption.
Other excluded tenancies include accommodation tied to employment or training, holiday lets, social housing tenancies, care home agreements, and residence in hospital, hospices and hostels.
The duty on a landlord is to make reasonable enquiries of all prospective occupiers before entering into a tenancy agreement. This will involve the landlord requesting documentary evidence from prospective occupier of his or her entitlement to be in the UK, as set out in the draft Code of Practice. A landlord will have a statutory excuse to a civil penalty where they carried out checks in accordance with the prescribed requirements and the checks did not reveal the prospective occupier to be a disqualified person, or the landlord arranged (under a written agreement) for an agent to carry out the checks on his or her behalf.
This legislation requires landlords to navigate a complex range of issues and documents and potentially creates exposure to claims of unlawful discrimination if document checks are not properly conducted. The Government has previously indicated that it intends to establish an enquiry service for landlords, but this is not mentioned in the draft Code of Practice. Landlords will be hoping this service is established before the regime is rolled out more widely.