The Immigration Act 2014 (‘the Act’) obliges private landlords of residential properties to check the immigration status of their prospective tenants and other authorised occupiers – the so called “Right to Rent Checks”. The scope of these checks is surprisingly wide and onerous and any failure by a landlord to comply with them may lead to quite severe financial penalties.
The Right to Rent Checks will apply to any tenancy agreement that is dated on or after 1 February 2016 which:-
- grants one adult or more the right to occupy the premises as their only or main residence;
- provides for payment of rent;
There are some exceptions where landlords are not required to carry out the checks as follows:-
- tenancies which relate to occupation of social housing, care homes, hospitals and hospices, other accommodation relating to health care provision, hotel and refuges, accommodation from or involving local authorities, accommodation provided by immigration provisions, mobile homes, tied accommodation, student accommodation, and long leases.
It is not, however, just a formal tenancy agreement that will be caught by the Act. Any property owner will have to check the immigration status of an adult to whom they grant a right or permission to occupy their property as their only or main residence. This would include the grant of any service occupancy or a simple licence and it need not be in writing. Furthermore, the property owner is obliged to check the immigration status of all adults occupying the property regardless of whether or not they are named in the tenancy/licence and make reasonable enquiries of who will live in the property as their main home.
A prospective tenant has an unlimited Right to Rent, if he is British National and is able to prove it by producing a UK passport, or comes from an EU country. In this case, the landlord only needs to carry out checks on their immigration status at any time before the tenancy is entered into. Where a prospective tenant has a time-limited Right to Rent i.e. does not fulfil the above criteria, the landlord must check the prospective tenant’s immigration status at the following points:
- 28 days before the date on which the tenant’s right to occupy the property arises but no sooner than that.
- If a tenant arrives from abroad and their visa will be granted on entry into the UK but such person’s right to occupy the property will often commence before their arrival in the UK. In these circumstances, the landlord is entitled to make the tenancy agreement conditional on the tenant confirming their eligibility to occupy a residential accommodation on arrival in the UK and carry out checks as soon as the tenant arrives in the UK.
- For tenants with temporary forms of permissions, the checks must be followed up on expiry of the permission and fresh checks must be carried out by the landlord or the agent. Should a tenant fail to produce relevant evidence, the landlord must report them to the Home Office via the gov.uk. website or by telephone.
The checks include:
- Identifying the adult who will occupy the premises as the only or main residence. This will also include checking the age of the other persons that might not yet be 18 but who will reach that age during the term of the tenancy.
- Obtaining copies of any adult occupier’s passport, relevant visa and/or immigration papers that grant them the right to remain in the UK.
- Checking the original documents in the presence of the holders.
- Making copies of the documents and retaining these with a record of the date on which the checks were made for at least one year after the tenancy has expired and the tenant has moved out. The landlord should also keep a record of any questions asked of the tenant about who will live in the property as their main home.
These requirements do not affect any existing tenancies granted before 1 February 2016 or renewals provided that the renewal is made between the same parties and there has been no break in the tenant’s occupation. Similarly, a landlord who acquires a property with occupying tenants where the tenancy was granted before 1 February 2016 does not need to carry out retrospective checks on tenants. It is therefore important that evidence and details of the existing tenancy and the record of the tenants should be obtained in those circumstances.
Where the tenant is not an individual but a corporate body the actual occupiers may be numerous and often change. If that is the case, then it is the company that will have control over who may stay at the property, so it effectively steps into the landlord’s shoes and becomes the party liable to carry out the Right to Rent Checks.
For landlords using letting agents, it is advisable that they do still check the agent’s terms and conditions to ensure that they are taking the responsibility for undertaking the Right to Rent Checks. For landlords using sub-agents, the situation is slightly more complex as the Act only allows for a landlord to delegate to an agent but does not allow for that agent to then delegate the checks to another agent. It is therefore important that the landlord ensures that the first agent has established a contractual relationship with the sub-agent that obliges the first agent to undertake the checks.
If a landlord should fail to comply with these new requirements there is £3,000 civil penalty. It should also be noted that the Immigration Bill 2015-2016 provides for the Act to be amended so that there will be a new criminal offence targeted at landlords and agents who repeatedly fail to conduct the Right to Rent Checks.