Private landlords and agents – right to rent checks from 1st February 2016

The Immigration Act 2014 (Commencement No. 6) Order 2016

From 1 February 2016, all private residential landlords in England must carry out checks on prospective tenants to ensure their immigration status affords them the right to rent a property in England.  The checks must be carried out within 28 days before the start of the tenancy.

The scheme has been piloted in five local authorities since December 2014, and so private landlords and agents in Birmingham, Walsall, Sandwell, Dudley or Wolverhampton will already be aware of these obligations.

For the rest of the country, 1 February 2016 is fast approaching and landlords and their agents will need to ensure they are ready to comply.  If you are a landlord and your tenant is found to be renting in England without the right to do so, you could be fined up to £3,000, unless you can show that:

a) the required checks were carried out before the residential tenancy agreement was entered into; or

b) an agent acting on your behalf was responsible.

More stringent sanctions may be on their way, as the Immigration Bill 2015-2016 currently wending its way through parliament establishes a criminal offence with up to five years in prison for knowingly renting to a tenant with no legal right to rent.

Scope of Application

The rules apply to non-exempt tenancies granting a right of occupation for a property for residential use, in exchange for the payment of rent, entered into on or after 1 February 2016.  A tenancy includes any lease, licence, sub-lease or sub-tenancy.  Granting a right of occupation for residential use means allowing one or more adults the right to occupy the property as their only or main home, whether or not the property can be used for any other purpose.

All adults living in your property under tenancy agreements that allow them to use the property as their only or main home must be checked, regardless of whether they are named on the tenancy agreement or whether the tenancy agreement is written or oral.  The fact that the obligations only apply where the tenant is using the property as their only or main home means that short-term tenants of holiday accommodation will not need to be checked, provided their stay is of short duration and clearly for leisure purposes.

Where your tenant has sub-let the property to another person, it is the tenant who will be responsible for checking the immigration status of his sub-tenant, unless you and he have agreed that it is to be your responsibility.

Certain types of accommodation are exempt, including hospitals, hospices and refuges.  In addition, tenancies which are granted for more than 7 years are exempt, provided the lease does not contain an option to terminate the tenancy earlier (other than by forfeiture).  The rationale behind this is that tenancies for more than 7 years are more akin to property ownership than to renting.

Letting Agents

An Agent will only take on the landlord’s responsibilities in respect of these obligations if there is an agreement in writing between the agent and the landlord that the agent is to comply with these requirements on the landlord’s behalf.

How to Comply

The Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order 2014 set out the prescribed requirements for identity checks which must be complied with by landlords and agents when entering into a residential tenancy agreement.  The Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order comes into force on 1 February 2016, and amends the list of acceptable documents set out in the 2014 Order.  There are four basic steps to be carried out:

  1. Establish the adults who will live in the property as their only or main home;
  2. Obtain original versions of one or more of the acceptable documents for adult occupiers;
  3. Check the documents in the presence of the holder of the documents; and
  4. Make copies of the documents and retain them with a record of the date on which the check is made, being mindful of obligations under the Data Protection Act 1998.

The acceptable documents are set out in two lists in the Schedule to the 2014 Order, as amended by the 2016 Order.  A landlord or agent must obtain either one document from the List A, or two documents from List B.

Where a tenant cannot produce any of the required documents, but claims to have an ongoing application with the Home Office or to have received permission to rent from the Home Office, a landlord or agent must request verification of a right to rent from the Home Office’s Landlords Checking Service using an online form.  The prospective tenant should have a Home Office reference number which will be required to make the request.

Where document checks reveal that a tenant only has a time-limited right to remain in the country, landlords (or agents, where responsible) must take care to repeat the checks after the time limit has expired.  Where follow-up checks indicate that an occupier no longer has the right to rent, a report must be made to the Home Office.

Where a property is purchased with a tenant already in occupation, landlords should request confirmation and evidence from the previous owner that the required checks have been carried out, and ensure that any necessary follow-up checks are noted and carried out.

The 2014 Order also brought into force a code of practice to assist landlords and agents.  This can be obtained from the government website, and contains helpful and detailed guidance, including the full lists of acceptable documents.  A link to the code of practice can be found here: Code of Practice.

Next up – Immigration Bill 2015-16

The Immigration Bill 2015-2016, which has reached Committee stage in the House of Lords, will introduce new sanctions on illegal immigration which will have an effect on private residential landlords and agents.

As currently drafted, the Immigration Bill 2015-2016 provides that where premises are occupied by an adult who is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement and the landlord knows or has reasonable cause to believe this to be the case, he will be guilty of a criminal offence.  Similarly, an agent could be guilty of a criminal offence if he knew or had reason to believe that the landlord has leased premises to a disqualified person, had the opportunity to notify the landlord, and yet did not do so.

Selective Licensing

If you are a landlord or letting agent you should also refer to the article “Private Residential Landlords: do you need a licence” by Craig Walker on the Goodman Derrick Knowledge website for May 2015.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice.  If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.