There has been considerable concern from landlords and agents dealing with the Right to Rent over the possibility that they will be presented with forged documents. There is little information as to the number of forged documents in circulation as most studies focus on detected forgeries but it is clear that they are greater in number and of better quality than is generally believed. It seems likely that agents and landlords are accepting documents routinely which they believe to be genuine but which are not. That is not to say that these documents are all being passed by people who have no Right to Rent but this must constitute a significant percentage.
The Immigration Act 2014 makes no apparent allowance for this issue as it says nothing about the landlord’s position in relation to forgeries, saying only that the landlord is exempt from penalties in respect of occupiers who have no Right to Rent if they have complied with the “prescribed requirements”. These “prescribed requirements” are to carry out the document checks as set out in the Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order 2014 which is further amplified by the code of practice. The Order is a little clearer in that it tells landlords they must take “all reasonable steps” to check the validity of documents. This implies that a landlord will not be penalised if they have taken all such steps and are still caught out. The Code of Practice is clearer when it says that landlords “will not be penalised, if, having taken all reasonable steps to check a document’s validity, they are fooled by a good forgery which appears to be genuine.” However, this tells us little about what the Home Office considers being a “good forgery”.
Some more information is to be found in the new guidance to Home Office staff as to the situations in which they should issue a penalty against a landlord. This states that enforcement action should only be taken where it is “not reasonably apparent” that the document is forged. This form of words has been used in other legislation relating to immigration as it is used to penalise airlines who bring illegal immigrants into the country. In this area, the court has recently considered the issue of what “reasonable apparent” means in a case between Ryanair and the Home Office.
In this case, Ryanair was only fined a few thousand pounds but it has transpired that they have paid over £400,000 in fines in the last year in similar cases and they had clearly decided to mount a challenge to the manner in which the Home Office was levying penalties. Ryanair had brought two Albanians into the UK on forged Greek passports. These passports are apparently considered high risk at the current time and the Home Office asserts that they are one of the most forged documents passing over the border although the Court questioned the evidence produced for that statement. The Greek passports were missing two key elements. These were that the word “HELLAS” which should have been printed in an ink which changed colour depending on the angle of the light applied was in a single colour. The second element was a printed Greek flag which was only partially visible in normal viewing and had to be held up to light so that it came from behind the paper to see the flag in full. Two immigration officers gave statements that these missing elements were in their view “reasonably apparent” to a member of airline staff and that they should have been spotted. However, other immigration officers in other similar cases had found that the forgeries were not “reasonably apparent”. The Court did not accept that at all and took the view that missing security elements like this which are relatively hard to find, even for trained professionals, would not be reasonably apparent to busy airline staff who have a refresher course on an annual basis.
From a landlord’s perspective, it seems then that simply missing an obscure security feature that requires a degree of expertise to find is unlikely to render a landlord liable to a penalty, especially if the Court is asked to get involved. A “reasonably apparent” forgery is not decided by what a person might conclude is obvious once someone who knows what to look for has pointed it out to them but rather what a person with some basic knowledge could be expected to identify in ordinary circumstances. It also seems clear that immigration officers have widely differing views on what is reasonably apparent and that it may not be what most people would expect. Landlords should, however, make sure they are looking at the European Union’s PRADO website which provides pictures of the majority of the world’s identity documents with guidance to the various security features to be found within them.