Landlord checks are set to be phased in from 1 December 2014 in the West Midlands area. From that date, private landlords or their agents will need to carry out a check on prospective tenants' "Right to Rent" in order to avoid potentially being fined up to £3,000.

In this article, we examine:

  • Who is affected
  • How to comply
  • What to check
  • How to avoid incurring the £3,000 penalty

Purpose

The intention behind the Right to Rent scheme is to ensure that illegal immigrants are unable to establish a settled life in the UK, which includes restricting access to private sector rented accommodation.

Who is affected

Those who will have to undertake Right to Rent checks are:

  • landlords (or their agents) entering into a new residential tenancy;
  • in Birmingham, Walsall, Sandwell, Dudley, and Wolverhampton; and
  • where no exemption applies. An example of an exempt category is accommodation provided by an employer to an employee under a contract of employment. For all exempt categories, see the exempt list.

How to comply

The check comprises:

  • carrying out the Right to Rent check;
  • taking copies of the documents and recording the date of the check;
  • doing a follow-up check before the expiry date of a tenant's leave (if applicable); and
  • retaining copies on file.

What to check

The Home Office published a Right to Rent checker which landlords can use to assist them with identifying the documents which they can accept as confirmation of the Right to Rent.

The checker will give one of four outcomes:

  1. 'This person has an unlimited right to rent'.
  2. 'This person has a limited right to rent'.
  3. Where the prospective tenant cannot produce any of the listed documents and states that they have a pending application or appeal, the checker will refer the landlord to conduct a Right to Rent check online by giving the prospective tenant’s: name; date of birth; nationality; and Home Office application or appeal reference. A response will then be received within two working days.
  4. Where the prospective tenant cannot produce any of the listed documents and does not have a pending application with the Home Office or an appeal, the landlord is informed that: 'This person may not have the right to rent. As the tenant is unable to produce any of the required documents, they may not have a right to rent. You should not rent a property to them until they are able to provide you with documents that show their right to rent in the UK.'

How to avoid incurring the £3,000 penalty

The Home Office published a Code of Practice on illegal immigrants and private rented accommodation. The Code sets out how a landlord can avoid breaching the Immigration Act 2014 and how checks should be carried out to avoid liability for the £3,000 civil penalty for such a breach.

Potential key issues

Potential key issues may include:

  • Data protection and disclosure of prospective tenants' details to UK Visas & Immigration
  • Avoiding racial discrimination
  • Tenancy/Agent agreements to cover the requirements of the Right to Rent scheme

Next phase – the rest of the UK?

It is expected that a decision on whether or not to extend the scheme to the rest of the UK will be made after the general election in May 2015.

In the meantime, in order to address concerns regarding the potential rise in claims of racial discrimination and homelessness among some migrants, a consultative panel is being set up to evaluate the scheme and will include bodies that represent landlords, letting agents, housing and homelessness charities, and local authority representatives. The panel will evaluate the implementation in the West Midlands and will then produce a report which will form part of the decision-making process on the further rolling-out of the scheme.