Immigration Act 2014 and "right to rent checks"

From 1 February 2016 all private landlords in England must check that new tenants have the right to be in the UK before renting out their property, following the coming into force of requirements in the Immigration Act 2014 (“the Act”).

This note summarises the new requirements (the so-called “right to rent checks”) and the actions that landlords and agents should be taking to comply.

Note exemptions:

• long leases are exempt from these requirements;
• landlords and agents do not have to check the right to rent of existing occupiers who moved in before the requirements are introduced;
• where the start of a tenancy pre-dates the requirements, and is renewed between the same parties at the same property without a break, then there is no requirement to conduct checks.

Who is disqualified from occupying property under a residential tenancy agreement?

Anyone who is not:

A British citizen;
A national of an EEA state;
A national of Switzerland; and
Does not have a right to rent (i.e. they require leave to enter or remain in the UK and do not have it, or they have leave but it is subject to conditions that prevent them from occupying).

What checks should a landlord make?

A landlord will need to see evidence of any adult occupier’s identity (over 18 years) and citizenship e.g. passport or biometric residence permit. It should compare the original document with the individual either face to face or via live video. Copies of the documents should be taken and retained for one year after the tenancy ends. The Home Office has published a landlord's guide to checking immigration documents, which may be useful for landlords click here.

The landlord must check the immigration status of every potential occupier of the property before it is let, even if they are not named on the tenancy agreement. If a person has unlimited rights to rent, the landlord will not need to conduct further checks. If the right is limited, it should be re-checked at appropriate times.

Landlords/agents are advised to list all occupiers on the tenancy agreement and record the full name and date of birth of all adult occupiers and whether they have permission to be in the UK.

If it is not possible to check the documents before entering into the tenancy agreement (e.g. if the potential tenant is overseas), the landlord/ agent may enter into a conditional tenancy agreement – conditional on production of evidence of right to rent before moving in.

The Act makes it an offence to let premises to someone (either the tenant or any adult occupying the property with them) who the landlord knows or has reasonable cause to believe does not have the right to rent.

Given the potential for discrimination, the Government’s code of practice advises that documents should be requested from all potential applicants. Refusing a tenant because they have limited right to remain may amount to indirect discrimination.

How does a landlord know or have reasonable cause to believe a tenant does not have the right to rent?

• It failed to check the documents in the first place.
• The tenant had a time limited or discretionary right to rent and that period has now ended. This means the landlord must monitor and make sure an occupier’s right to occupy does not lapse.
• The Home Office has served notice that the occupant has no right to rent.

What about sub-tenants and lodgers?

If a person sub-lets a property, they will have responsibility for making the checks, although this responsibility can be passed up to the superior landlord by agreement. It is recommended that the agreement as to allocation of responsibility for checks is in writing.

Likewise, anyone who takes in a lodger should check they have a right to rent before allowing them to move in.

Can an agent be responsible for checks?

Landlords may appoint an agent to conduct the checks. There should be a written agreement confirming the scope of responsibilities of the agent, especially in relation to follow-up checks on immigration status. An agent who takes on responsibility for checks will be liable for a civil penalty if the checks are not carried out.

What are the sanctions for non-compliance?

The Act provides for a “civil penalty scheme” whereby landlords and their agents could face fines of up to £3,000 per tenant. If the Immigration Bill 2015 is approved in its current form, criminal sanctions may apply in situations where a landlord or its agent knows or has reasonable cause to believe that a person does not have a right to rent.