The consultation by the Home Office on proposed new requirements to make it harder for illegal migrants to rent private accommodation closed on 21 August 2013. The consultation sought views from landlords and agents on the impact of a proposed requirement for landlords to conduct immigration checks on tenants, with penalties for those who provide rented accommodation to illegal non-European Economic Area migrants.

New requirements affecting landlords

The new requirements will be modelled on existing controls which apply to the employment of illegal workers. These are well established and have operated successfully for the last 5 years (the latest government statistics claim that the existing controls on employment have assisted in reducing net migration by more than a third since June 2010).

The proposals require a landlord to obtain evidence from a tenant of their immigration status. To assist landlords in making these enquiries, the Home Office will publish straightforward guidance and operate an enquiry service. Requirements affecting landlords (and agents) are likely to include:

  • For a UK citizen, a landlord will need to check a UK passport, naturalization certificate, right of abode certificate, birth certificate or adoption certificate plus either a national insurance number or a UK driving licence. For a foreign national without leave to remain, a landlord will need to check either an Application Registration Card (ARC) held by asylum seekers or a Home Office letter of authorisation (but only if verified by the Home Office enquiry service).
  • Landlords are likely to be required to make annual checks on individuals with limited leave to remain and may have to start recording when their leave is due to expire (after that date they may need to satisfy themselves that the person has not allowed their leave to expire and thus become an illegal immigrant triggering their duty to report).
  • Landlords are not expected to be experts in recognising forgeries and, provided they have taken reasonable steps to satisfy themselves as to the authenticity of the document presented, they will only be held liable for not recognising forged documentation if the forgery is reasonably apparent.
  • Landlords will also be required to store the information obtained from tenants for a minimum period (the current proposed period is 12 months from when the tenant stops living in the property) before disposing of it securely in accordance with the Data Protection Act.

​Landlords can expressly delegate responsibility to comply with these requirements to a letting agent and the liability would then rest with the agent rather than the landlord. What may be more of an issue for a landlord is the requirement to check not only the status of the person signing the tenancy agreement, or the person paying the rent, but also how many adults are going to actually live at the property. The consultation did not outline the lengths a landlord will need to go to satisfy this requirement. However, there will be no duty on the landlord to monitor who occupies the property after the start of the tenancy.

The onus on the landlord to make annual checks on their tenants and to obtain and store information obtained from tenants compliant with the data protection act is not only time consuming, but could make it more appealing for a landlord to take on a British person or one with indefinite leave to remain as a tenant because they would not need to make more regular checks on these tenants. This could become a potential discrimination issue.

Dealing with suspected illegal migrants

If a landlord, despite having made the initial check in good faith, suspects that illegal migrants are living in their property, they would be expected to take action (although there would be no duty) usually by reporting this to the Home Office. By reporting their suspicion promptly to the Home Office, the landlord will have a statutory excuse from any liability. They will also avoid accusations that the landlord knowingly accepted false documentation or conspired in other sham arrangements to enable the illegal migrants to live at the property. Failure to report to the Home Office means the landlord will not have a statutory excuse if the tenant comes to the Home Office’s attention and are found to be illegally living at the property.

Landlords will not be required to undertake costly proceedings to evict illegal migrants. However, if the rental arrangement comes to a conclusion, the landlord must not take active steps to renew it. Voluntary renewal by the landlord in such circumstances will be treated as if the landlord had entered into a new rental arrangement without making the necessary checks.

Penalties

Landlords providing accommodation to illegal migrants without making checks will face civil penalties. The penalty regime will be proportionate – with relatively modest penalties for people who breach the rules for the first time. In the most serious cases, however, the penalty could be £3,000 per illegal migrant. There will be an appeal process as well as safeguards to protect landlords who have made reasonable attempts to check their tenants’ status. The primary objective of the policy is to make it more difficult for illegal migrants to gain access to privately rented accommodation and to deter those who set out to disregard the immigration rules. It will benefit those communities blighted by illegal structures – the so-called “sheds with beds” and overcrowded houses that can bring social problems and other costs to local communities. The Home Office suggests that landlords may also benefit from lower losses of income because of the stringent tests. However, there will be an additional administrative cost and burden for landlords and the consultation is likely to prompt questions as to whether landlords should be saddled with the burden of policing the immigration system.

A summary of responses will be published by the Home Office as early as possible, subject to comments received in response to the consultation and the views of Ministers, so watch this space.