New checks, forming part of the Government’s "Britain first" immigration policies were introduced in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton on 1 December 2014. This is only phase 1 and a decision on whether to extend the scheme more widely is expected after the May 2015 general election.
These new "Right to Rent" checks require residential landlords in the pilot areas (or their agents) to conduct pre-letting checks into the immigration status of all proposed residential occupiers. Landlords could find themselves liable to fines of up to £3,000 per illegal occupier if they rent to illegal migrants without carrying out the checks.
Landlords are advised to:
Finally, when acquiring residential property, additional enquiries ought to be raised so that the purchaser can establish:
The original landlord who enters into a letting remains responsible under the scheme, even after they sell the property. However, the new landlord is responsible for carrying out any repeat checks required after they acquire the property.
The Immigration and Security Minister, James Brokenshire, said: "The right to rent checks are quick and simple". Landlords are hoping that turns out to be the case. However, the Draft Code itself runs to 31 pages, so perhaps the Royal Institute of Chartered Surveyors is closer to the mark with its warning that the new checks could create more red tape for landlords and letting agents.
The relevant legislation is pt 3 of the Immigration Act 2014. Section 22 of the 2014 Act prohibits landlords from allowing adult illegal migrants (those over the age of 18) to occupy premises under a "residential tenancy agreement". However, under s.24, landlords can avoid paying the penalty for ravention by demonstrating that prescribed checks were undertaken.
They only apply to "residential tenancy agreements". These are defined in s.20 as letting arrangements entered into where:
Subject to the above, the new checks apply to all types of residential letting arrangements (written and unwritten), including assured shorthold tenancies, leases, licences, tenancies at will and sub-tenancies. Agreements for any of those arrangements are also covered.
The definition of "premises" is wide. It includes caravans and houseboats as well as traditional residential premises.
Guidance on what constitutes "a person’s main or only home" is contained in the Draft Code of Practice s.3.3 published by the Government in September 2014. Section 3.4 of the Code clarifies that checks will not be required in relation to hotels, guest houses, bed and breakfast accommodation etc, unless the occupier plans to stay for more than a short period. The Draft Code states that:
"As a guide, the Home Office would consider that bookings of three months or more may indicate that a person is using the accommodation for a purpose other than leisure purposes, and could be intending to use the accommodation as their only or main home."
The letting arrangements listed in Sch.3 of the Act are excluded. These are detailed but broadly, the checks will not be required for the following types of accommodation:
Also excluded are lettings:
Landlords do not need to check the immigration status of an occupier in any of the above circumstances.
Obviously, adults intending to live in rented accommodation anywhere in the United Kingdom will also need to comply by providing documentary evidence of their right to rent.
Landlords could face fines of up to £3,000 per illegal migrant. The actual penalty level will be determined on a case-by-case basis depending upon various factors, including whether a penalty has been levied before, whether there are multiple illegal migrants and whether the person breaking the rules is a private individual. It should also be noted that a penalty cannot be levied if the illegal migrant has not occupied the premises for 12 months or more.
Section 5.1 of the Draft Code sets out the four basic steps to conducting the right to rent check:
There is a useful document checking process diagram in the Draft Code. The Home Office has also published a Right to Rent checker that landlords can use (please click here).
The documentary evidence of the occupier’s immigration status (either an electronic or hard copy) must be retained for the duration of the letting and for 12 months afterwards.
A list of acceptable documents is set out in the Draft Code and includes a UK/EU/Swiss/diplomatic passport, national ID cards and biometric residence cards.
Generally, the checks need to be carried out before the letting arrangement is entered into. Where the original pre-letting checks show that a proposed occupier has a temporary right to remain in the United Kingdom, the initial checks should be undertaken not more than 28 days before the letting is entered into and the checks will need to be repeated every 12 months or (if longer) when the occupier’s temporary right expires.
When complying with the new requirement, landlords need to avoid discrimination. The checks should, therefore, be made against all occupiers indiscriminately and at the same time as other pre letting checks would normally be undertaken.
Landlords will also need to ensure that they comply with their responsibilities under the Data Protection Act 1988 as they will be copying and retaining an occupier’s identity documents/personal data.
This article was published in the Landlord and Tenant Review in November 2014.