From 1 February 2016 landlords of residential property in England (not also Wales) will have to carry out checks to ensure potential tenants have the right to rent property in the UK.
As part of the government's wider reforms to the immigration system, the Immigration Act 2014 (Commencement No.6) Order 2016 and the Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) (Amendment) Order 2016 are being brought into force on 1 February 2016 to ensure that only those with a legitimate right to be in the UK can rent property. The scheme is intended to deter those without the right to live, work or study in the UK from staying here indefinitely.
The scheme requires landlords, agents and householders renting out property to check, within 28 days before the start of a new tenancy, the immigration status of prospective tenants and other authorised occupiers aged 18 and over who will use the property as their only or main home to ascertain whether they have the right to be in the UK. With limited exceptions, this applies to both private and social housing and whether the tenancy/licence/subtenancy is written or oral. Landlords who fail to check and are found to be letting property to, and anyone who sublets or allows lodging by, someone who has no right to stay in the UK could face financial penalties of up to £3,000 per tenant.
There is no need to check the rights of existing occupiers who moved in prior to 1 February 2016. There is also no requirement to conduct checks where the start of a tenancy pre-dates the scheme being introduced and is renewed between the same parties at the same property without a break. If, having made reasonable enquiries as to who will live in the property and obtaining their documentation, an occupier moves someone in without the landlord's knowledge, the occupier is responsible for the checks and is liable for any penalty.
Reasonable enquiries as to who will occupy will depend on the circumstances; if someone renting a single room says they intend to live alone, this may be sufficient. Consider, for example, whether the reported number of people is proportionate to the size and type of property.
If using an agent, an express written agreement should be completed confirming that the agent assumes responsibility for the checks. If the agent establishes someone does not have the right to rent and reports it to the landlord in writing but the landlord lets the property anyway, the landlord becomes liable for any penalty.
What is acceptable documentation?
There are two lists of documents in the legislation. The landlord must obtain from the occupier one document from List A or two documents from List B and take all reasonable steps to check their validity and that the holder is the rightful owner of them. List A contains documents which provide evidence the holder has the right to rent indefinitely, such as UK and EEA passports. List B documents show the right to rent for a limited period of time, such as visas. Landlords should diarise any time limits to refresh checks. If repeat checks show that an occupier's right to stay has expired, a report should be made to the Home Office as soon as reasonably practicable after discovering the lapse of the right. There is currently no requirement to evict the occupier in these circumstances and rent can still be collected.
Anyone given a false document will only be liable for a penalty if it is reasonably apparent that it is false e.g. a photo without a likeness to the holder, implausible dates of birth, illegible documents, signs of tampering/alteration.
If no acceptable documents can be produced, the landlord can request that the Home Office carry out a check by completing an online form; a response should be given within 2 working days.
In limited circumstances a landlord will have a 'statutory excuse' against a civil penalty if they can show they correctly carried out right to rent checks and made any required report to the Home Office. Insufficient/scant checks will not suffice.
Checklist for landlords
- Keep any written agreement instructing and making agents responsible for doing checks
- Agree timescales with agents for making checks and agree form by which checks will be made e.g. written or verbal
- Make reasonable enquiries to find out who will live in the property as their only or main home, and keep a record of the questions asked and the answers to them
- Carry out checks on all adults (recording full names and dates of birth), even if not named on the tenancy agreement
- Obtain and check all adults' acceptable documents before allowing them into occupation, securely keeping (clear and legible) dated copies in a format that cannot be altered for the term of the tenancy and for 12 months after it ends. The date the copy is taken must be recorded
- Satisfy yourself that any occupying children are under 18 (record names and date of births)
- Check all documents in the presence of the document holder to verify authenticity
- Compare photographs and dates of birth against appearances of adults and check that these are consistent on all documents presented
- Diarise any time limits for rights to stay in UK; refresh checks on expiry; report expiries to the Home Office
- If in doubt, don't rent out!
There is an online checking took available on www.gov.uk/landlord-immigration-check which landlords can use to guide them to the process and to request a check on anyone who has an outstanding case with the Home Office.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.