Since 1 February 2016, landlords are required by law to check the immigration status of their tenants. The Immigration Act 2016, which received royal assent on 12 May 2016, increases the existing penalties for landlords who do not comply with these rules and makes it easier for illegal migrants to be evicted. These changes have not yet come into force and no date has yet been set for their introduction.

Current position

Currently all landlords must carry out checks to ensure their tenants have a legal right to rent residential property in England. The obligation to check documents only applies to tenancies entered into after 1 February 2016 and is only necessary where the tenant is over 18 and renting residential property as their main or only home, with some exceptions (e.g. mobile homes, student accommodation etc.). Landlords can outsource the duty to check a right to rent to agents that manage or let their properties. This agreement should be in writing.

To properly carry out a check, landlords (or their agents) must first confirm which adults will be using the property as their main home. The documents of any adults who are using the property as their main home must be checked, even if they are not included in the tenancy agreement. The tenants’ original documents must be checked (copies or electronic scans will not suffice) to confirm that they have a right to rent. Copies of the documents must be made and the date the check was made recorded. At present, the maximum fine that can be imposed for renting property to someone who does not have a right to rent is £3,000.

Changes to be introduced

The Immigration Act 2016 introduces a criminal offence for landlords and/or agents who knowingly rent property to those whose immigration status does not give them a right to rent. Those found guilty of this offence face an unlimited fine and/or up to five years in prison. “Knowingly” in this context is defined objectively, and therefore those landlords who “have reasonable cause to believe” their tenant did not have the right to rent are also liable for prosecution. If a landlord can evidence that they have taken reasonable steps to remove a tenant within a reasonable period after they become aware they are disqualified from renting property, this will serve as a defence.

The Immigration Act 2016 also introduces changes to tenancy law. If a landlord is served with a notice from the Home Secretary stating that a tenant has no right to rent, this removes the tenant’s protection from eviction under the Protection from Eviction Act 1977. Once a notice from the Home Secretary is received the landlord can serve a 28-day notice of eviction. If no occupants in the property have a right to rent, landlords can evict without a court order. The Act also enables possession of a property or transfer of tenancy where tenants are disqualified from renting.

Correctly carrying out right to rent checks is therefore becoming more imperative, with the penalties for failure to do so substantially increasing. Please contact us for further information on how best to discharge your obligations under the right to rent provisions.


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