The Immigration Act 2014 (the Act) and associated secondary legislation, comes into force in England on 1 February 2016. The Act will add yet another layer of regulation to the already heavily regulated private rental sector.
According to Government guidance, the new legislation is being introduced to restrict access to the private rented sector for illegal immigrants. Its aim is to ensure illegal immigrants cannot ‘establish a settled life in the UK and frustrate the necessary process of returning them to their home country.’ but it will undoubtedly affect everyone involved in letting property.
The Act identifies three categories of occupant: those with a permanent Right to Rent, for example British citizens; those with a Limited Right to Rent, such as visitors who have a fixed term visa; and those with no Right to Rent. The Act prohibits landlords, agents and householders from letting residential premises to an adult with no Right to Rent. Non-compliance may result in a civil penalty of up to £3,000. The legislation sets out the procedure landlords must follow to check immigration documents (a Right to Rent Check).
To comply with the Act, landlords should:
- carry out a Right to Rent Check before entering into any agreement which grants new rights to occupy residential premises;
- verify original documents that prove a Right to Rent, either permanent or limited, for all adults who will occupy the property;
- complete follow-up checks for any occupant with a Limited Right to Rent; and
- keep records of Right to Rent Checks and copies of relevant documents.
Practical implications for landlords, agents and tenants
The Act applies very widely and includes any agreement, whether in writing or not, giving an adult a right of occupation of premises as their only or main residence. It includes arrangements such as lodgers or paying guests, and covers all adult occupants, not just named tenants. Landlords will also have an on-going obligation to carry out checks for occupants with limited leave to remain in the UK. Landlords are required to notify the Home Office if these follow up checks reveal that an occupant no longer has a Right to Rent.
If an occupant does not have a Right to Rent, a landlord will only be excused from having to pay a penalty issued by the Home Office if a Right to Rent Check was completed. This means that landlords will need to carry out a Right to Rent Check for all prospective occupants in order to establish a statutory excuse or risk facing a penalty.
Responsibility for Right to Rent Checks can be delegated to managing or letting agents, but this must be agreed in writing between the landlord and agent. Agents and landlords may need to ensure that their contracts with each other are updated to reflect the requirements of the Act.
Many landlords will already ask prospective tenants for proof of identify, but should check whether their current procedures will meet the new requirements.
A Right to Rent Check must be completed for any adult who occupies the property as their main home, not just the tenant named in the tenancy agreement. Landlords are therefore required to make reasonable enquiries about who will occupy the property and consider whether the answers are plausible.
Before entering a tenancy agreement, landlords must then verify the original documents are genuine, proving the holder’s Right to Rent. A requirement we expect to cause practical problems to many landlords and agents, particularly in circumstances where prospective tenants are moving to England from abroad, is that the Right to Rent Check must be done in the presence of the document holder and copies taken from the original documents themselves. It will not be sufficient to see scanned copies of documents or confirm the identity of a prospective occupant over the phone. Landlords are not expected to be immigration experts but should follow the detailed Government guidance on the 25 categories of acceptable documents.
Landlords are required to keep records of Right to Rent Checks and copies of documents for at least a year after the occupant leaves the property.
We expect that most prospective occupants will produce standard documents and the majority of Right to Rent Checks should be relatively straightforward. However, in some circumstances, landlords will need to refer to the Government guidance and/or take further legal advice. For example, if a prospective occupant has an unusual immigration status or an outstanding immigration appeal; or if follow up checks and referrals to the Home Office are required where an occupant has a limited Right to Rent.
The Act also has implications for compliance with data protection and anti-discrimination legislation. There may be fears that some unscrupulous landlords will avoid letting to individuals that they think might have a complicated immigration status, so as to reduce the administrative burden and exposure to the risk of penalties that the requirement for checks give rise to. Any landlords considering such an approach should bear in mind that it is unlawful to discriminate in the provision of rented accommodation because of race. Landlords should also ensure that any details taken from individuals are held securely and for no longer than necessary.
Most Right to Rent Checks will probably be straightforward, but as noted above there will be some situations where landlords or agents will need to take further advice on how to comply with the new requirements. There is still uncertainty about how some aspects will work, with legislation and guidance being updated as recently as 15 January 2016, so landlords will need to monitor Government guidance to keep up to date with the latest advice.
Landlords should also be prepared for further changes to the law in this area. In its current form, the draft Immigration Bill 2015-16 will give landlords and courts new powers to evict tenants and other occupants on receipt of a notification from the Home Office that they do not have a Right to Rent. It could also become a criminal offence for a landlord to let residential premises to an adult without a Right to Rent, although the Government have indicated that this offence, which could carry a sentence of up to five years in prison and a criminal fine, will only be used to target landlords who consistently flout the law.
Ed Cracknell and Stephen Small.
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