New Immigration Law

The requirement to check the immigration status of their tenants was extended to cover all private landlords in England, taking effect as from 01 February 2016. Landlords, no matter how big or small their property portfolio, must now undertake ‘right to rent’ checks on any tenant or lodger in their property.

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The requirement to conduct 'right to rent' checks applies to every landlord, no matter how small their rental portfolio may be. Landlords will be subject to severe financial penalties up to £3,000 if these checks are not carried out correctly.

These checks are to ascertain whether an individual has the right to be in the UK and apply to prospective tenants and other authorised occupiers. Details are included in the Immigration Act 2014 (Commencement No. 6) Order 2016 (SI 2016/11) and the Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) (Amendment) Order 2016 (SI 2016/9).

The Home Office has published a user guide that includes a list of which documents (or combination of documents) are acceptable as evidence of the right to rent and a 'frequently asked questions' section.

Essentially, a landlord may not allow a tenant to occupy a property under a residential tenancy agreement unless they are adult and a British citizen, are an EEA or Swiss national or their status is such that they have a right to rent in the UK

It is important to note that even if an agent normally handles everything on behalf of the landlord, unless there is something in writing delegating this particular 'right to rent' check responsibility to the agent, the landlord will still be held liable for errors or non-compliance on the part of the agent.

I want to know

How do you carry out a ‘right to rent’ check?

The Home Office has set up a 'Landlords Checking Service'. A landlord can use this service if someone doesn't have any of the acceptable documents to prove that they are in the country lawfully. As long as the person provides the landlord with a Home Office reference number, the Home Office will do the check and get back to the landlord within two working days confirming if there is a right to rent or not.

The checking service won't provide tenants with written confirmation of a right to rent. This may only be given to the landlord. More information about the checking service is available via the Home Office Landlord Helpline on 0300 069 9799.

A landlord will avoid penalties if they carried out the initial checks before letting the property and kept evidence that they did so. They will also face no penalty if they contact the Home Office when the tenant no longer has a right to rent, but they don’t have to evict a tenant whose limited right to rent has expired. They're only required to report the matter to the Home Office.

If they fall foul of these rules, landlords will face a civil penalty of up to £3,000 for each adult living in their property who isn't a relevant national or has no right to rent. A landlord can object to the penalty by writing to the Home Office within 28 days of the date they receive the penalty notice and there is also a right of appeal against any final decision.

More about UK landlord and new immigration rules/law

The Home Office’s latest Code of Practice for Landlords updated in January 2016 gives guidance on conducting 'right to rent' checks. It states that landlords can avoid liability for a penalty by making, or arranging for an agent to make, simple documentary checks to establish a person's 'right to rent' before entering into a tenancy agreement. However it must be clear that the responsibility rests with the agent and not with the landlord. Indeed the law states that unless it is recorded in writing that the agent is now responsible, the responsibility rests with the landlord.

Existing tenants with an agreement that started before 1 December 2014, or renewals of those tenancies after this date, aren't affected as long as any renewed agreement is between the same people and there's no break in the tenancy.

The rules apply to private rented accommodation and a range of residential agreements that require payment of rent. These include tenancies, leases of less than seven years, licences (lodgers who "rent a room" often have licence agreements) and sub-tenancies or sub-leases.

Government ministers have suggested that the new measures mean landlords will be able to end tenancies, sometimes without a court order. However, the fact remains that in most cases where there are tenants who refuse to move out the case will still have to go to court.

What documents are needed for a ‘right to rent’ check?

All employers are currently responsible not only for checking the immigration status of their staff but for retaining proof of the documents checked and the same duty will apply to landlords or letting agents under these new regulations.

Documents a landlord should request as evidence of a tenant’s right to rent can include a passport, national identity card, residence card or certificate of registration or naturalisation. If none of these are available, two other specified documents, such as a photo ID driving licence or a birth certificate, will satisfy the checks. There is a full list of acceptable documents in the Code of Practice produced by the Home Office.

Landlords should be mindful of their obligations to protect personal data under the Data Protection Act 1998 and all copies of documents, whether paper or electronic, should be kept securely and for no longer than necessary. The landlord is not entitled to retain original documents presented by the prospective tenant and must take a copy of the documents provided. Landlords have to keep these copies for as long as the tenancy lasts and then for at least one year afterwards.

The importance of keeping copies of documents cannot be overstated. Baroness Scotland, the then Attorney General, was fined £5,000 in 2009 for employing an illegal immigrant as her housekeeper because she failed to keep copies of the relevant paperwork.

What happens if a landlord discriminates against a potential tenant?

Whether or not a person needs and has permission to stay in the UK and has a right to rent is a matter of fact that can be verified by the documents specified by the Home Office. The law says that people mustn't be discriminated against because of their race when renting property.

The required ‘right to rent’ checks must be performed without regard to race, religion or other ‘protected characteristics’ as specified in the Equality Act 2010. These ‘protected characteristics’ include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

A landlord or agent therefore shouldn’t make assumptions about whether someone is a relevant national or has a right to rent on the basis of their colour, accent, and ability to speak English. If they do, they may be unlawfully discriminating against that person.

The Home office has published a separate Code of Practice for Landlords on how to avoid unlawful discrimination when conducting ‘right to rent’ checks in accordance with statutory equalities duties.

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