The Immigration Act 2014 and “Right to Rent” checks

Posted on December 17, 2015

 

Background

 

The Immigration Act 2014 received royal assent on 14th May 2014, and, as you may be aware from the press coverage it received, as part of this legislation landlords will now be required to check that their potential tenants are entitled to reside in the United Kingdom.

 

Section 22 of the Immigration Act 2014 provides that a landlord should not authorise an adult to occupy property as their only or main home under a residential tenancy agreement unless the adult is a British citizen, an EEA or Swiss national, or has a “right to rent” in the UK. A person will have a “right to rent” in the UK provided they are residing here in accordance with immigration laws.

 

Who?

 

There are three main categories that people will fall into under this provision;

 

1. Those with an unlimited right to rent;
        a. British Citizens, EEA and Swiss Nationals
        b. Those who have been granted indefinite leave to remain, or are not time limited by their stay in the UK

 

2. Those with a time limited right to rent;
        a. Non British citizens, EEA and Swiss Nationals who have valid leave to remain in the UK for a limited period of time
        b. Those who are entitled to enter or remain in the UK as a result of an enforceable right under European Union Law or under section 2(2) of the European Communities Act 1972.

 

3. Those with no right to rent;
        a. Those who have no permission to remain in the UK

 

Landlords will face a civil penalty of up to £3,000 if they rent a property to any adult who falls under category 3 above. Further, they may face a penalty if they rent a property to an adult who falls under category 2 if they do not conduct follow up checks to ensure that the status of that tenant remains valid.

 

The landlord will not face a penalty if a property is rented to a child (under 18 years of age) or a person that the secretary of state has granted permission to live in the UK.

 

From 1st February 2016 landlords will be required to make a “right to rent” check on all tenants’. This will apply if you;

  • are a private landlord
  • have a lodger
  • are sub-letting a property
  • are an agent appointed by a landlord to make right to rent checks

 

Some agreements are excluded from the legislation and you will not be required to carry out the checks if;

  • Accommodation is arranged by the local authority
  • Social Housing
  • Care homes, hospitals, hospices and continuing healthcare provisions
  • Hostels and refuges
  • Mobile homes
  • Student accommodation
  • Long leases

 

The Checks

 

For those tenants that fall in to the included category it is a requirement that a landlord or his agent should;

 

1. Check that the adult tenant(s) will live in the property as their only or main home

 

2. Ask tenant(s) for the original document(s) that show they have the right to be in the UK. Acceptable documents include:

  •         UK passport
  •         EEA passport or identity card
  •         Permanent residence card or travel document showing indefinite leave to remain
  •         Home Office immigration status document
  •         certificate of registration or naturalisation as a British citizen

 

3. Check the documents are valid with the tenant present

 

4. Make and keep copies of the documents and record the date you made the check

 

If a tenant has an outstanding immigration application or appeal with the Home Office, you can request a Home Office right to rent check.

 

Responsibility lies with the landlord to adhere to the legislation, however in some circumstances that liability can be transferred to their managing agent should one be instructed;

  • The landlord will agree with a managing agent in writing who is responsible for undertaking these checks, and therefore will face a civil penalty if they subsequently rent to a tenant without a right to rent
  • If a managing agent establishes that a tenant does not have a right to rent and the landlord continues to grant that tenant a residential tenancy agreement, it is the Landlord that will face a civil penalty

What can I do to prepare for this?

 

You should start to consider how you will incorporate these checks in to your current procedures now, as the financial consequence for non-compliance is heavy. Put a checklist in place, and carry out some checks on existing tenants as a test to ensure that the procedure is running smoothly. You will need to do these checks for all new tenancies that started after 1st December 2014.

 

If you would like further help and guidance please contact us on 01825 766767.