1 February 2016: New Right to Rent checks take effect

February 3, 2016

Background

As you may be aware, under sections 20-37 of the Immigration Act 2014 (“IA 2014”), landlords are not permitted to rent residential accommodation to individuals who do not have a right to be in the UK.

On 1 December 2014, the Government launched a pilot scheme requiring landlords in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton to check the immigration status of prospective tenants. The Government has now announced that the “right to rent” obligations will be rolled out to the rest of England from 1 February 2016 and landlords nationwide will be prohibited from renting private sector properties in the UK to illegal immigrants.

Who will the rules apply to?

The new rules will apply to landlords where the following conditions are met:

  • A landlord grants a lease, licence, sub-lease, sub-tenancy or an agreement of any of those things in respect of residential premises; 
  • The prospective occupier or tenant is an adult (ie. aged 18 or over); and
  • The premises are used as his or her only or main home.

If the above conditions are met, then landlords must satisfy themselves that the prospective occupier has either:

  • an unlimited right to rent in the UK by virtue of being a “relevant national”, namely a British, EEA or Swiss citizen, or having been granted an indefinite leave to remain in the UK; or 
  • a “limited right to rent” (this applies to non-relevant nationals who are entitled to enter or remain in the UK by virtue of an enforceable EU right, or persons who have been granted leave to enter or remain in the UK for a limited period). 

Long leases (ie. for a term of years exceeding 21 years) and agreements that grant a right of occupation for a term of 7 years or more are amongst the tenancies exempt from these provisions, as are student accommodations and others (see Schedule 3 to IA 2014).

New checks

In accordance with Article 3 of The Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order 2014 (the “Order”), a landlord will be required to obtain and check documents, as prescribed by the Order, from an occupier or prospective occupier of their property prior to offering a new tenancy. The documents must be genuine originals and checked in the presence of the occupier.

The following includes some of the documents that can be used as proof that a person has an indefinite right to live in the UK: a UK, EEA or Swiss passport (current or expired), a ‘permanent residence’ or ‘indefinite leave to remain’ card issued by the Home Office, or a certificate of registration or naturalisation as a British citizen.

A person with a time-limited right to live in the UK will instead have to produce one of the documents prescribed in List B of the Order, such as a current passport or other travel document showing that the holder is allowed to stay in the UK for a time-limited period.

Landlords must also ensure they keep copies of the documents checked for up to one year after termination of the tenancy, together with a written record of the date on which the documents were checked.

It is important to note that landlords have a continuing obligation to check the immigration status of occupiers with a time-limited right to be in the UK and repeat the checks either when the right expires or after 12 months from the initial check, whichever is later. Where a follow-up check indicates that the person no longer has the right to live in the UK, an official report will have to be made to the Home Office, albeit there being no obligation to evict the tenant.

Conclusion
For tenancies beginning after 1 February 2016, failure to comply with the new rules will expose landlords to fines of up to £3,000 (s. 23 IA 2014) and potential criminal liability. Indeed the Immigration Bill 2015-2016 is currently under Parliament’s review and, if approved, it will introduce a criminal offence for landlords and agents who repeatedly breach the “right to rent” laws.

These rules appear to be driven by current global concerns over immigration and, as stated by the Minister for Immigration, James Brokenshire, the “Right toRent [scheme] is part of the Government’s wider reforms to the immigration system to make it stronger, fairer and more effective…deterring those without the right to live, work or study in the UK from staying here indefinitely”. 

The good news is that landlords will be allowed to shift these obligations on to their managing agents who, if instructed to do so, will then be responsible for carrying out the necessary checks.

Useful links
The Home Office’s Code of Practice (on illegal immigrants and private rented accommodation) can be accessed via the following link: https://goo.gl/gmR2G6 .

The Home Office has set also up a Landlords Helpline: 0300 069 9799.


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