Since February 2016 private landlords in England have been required to carry out checks to ensure that those they let to have a ‘right to rent’. With penalties for non-compliance of up to £1,000 per tenant (or £80 per lodger) and rising to £3,000 (and £500) for repeat non-compliance, it is vital that landlords understand their obligations.
Who does the legislation apply to?
The Immigration Act 2014 is aimed at private landlords who let to tenants or lodgers, as well as agents appointed by landlords to be responsible for the checks. It applies to tenancies granted after 1st February 2016 (save for a few exceptions in the Birmingham area, where implementation started in 2014). However it may also apply to agreements which pre-date implementation if the letting is assigned or a new adult moves into the household with the landlord’s permission after February 2016.
Checks must be carried out on all persons over 18 years who are living in the property (i.e. not guests), whether or not their name is on the tenancy agreement.
What is the obligation on the landlord?
Section 22 of the Act states that “[a] landlord must not authorise an adult to occupy premises under a residential tenancy agreement if the adult is disqualified as a result of their immigration status.” In other words, the landlord (or their agent) must establish whether an adult living in the rented household has a ‘right to rent’.
It is no defence for a landlord to include in an agreement a term prohibiting occupation by a person with no right to rent, if the landlord has not made ‘reasonable enquiries’ in accordance with the Act (s.22(7)).
What is a right to rent?
A person has an unlimited right to rent if they are:
- A British citizen,
- An EEA or Swiss national,
- A Commonwealth Citizen with right of abode in the UK, or
- A person with indefinite leave to remain in the UK.
A person may have a time-limited right to rent if they have been granted a right to enter or remain for a limited period in the UK (e.g. on a work visa) or where the person is a family member of an EEA worker. Alternatively the Home Office may grant a ‘right to rent’ for the purposes of the 2014 Act.
How should the checks be carried out?
Before the tenancy starts, the landlord should check the tenant or lodger’s right to rent. The landlord may charge for this check.
A follow-up check must be made where the tenant/lodger has a time-limited right to rent, when checks should be made 28 days before the time-limit expires or 12 months from the date of the previous check, whichever is the later (bizarrely, even if the right to rent expires during the 12 months, the landlord only needs to check a minimum of once per year to have complied). If upon making the follow-up check it appears that the tenant no longer has a right to rent, in order to avoid a penalty the landlord must inform the Secretary of State “as soon as reasonably practicable”, meaning “without delay on it first becoming apparent that the contravention has occurred” (s.24(7)).
The landlord must either have sight of acceptable ‘prescribed documents’ (and a record kept of the check and copies taken of the documents) or have Home Office verification of the person’s right to rent. The Home Office has issued guidance on what are acceptable documents, although at 39 pages the document’s description of itself as “simple” is disputed:
Can I evict my tenant/lodger if they do not have a right to rent?
In short, no. The Immigration Act 2014 does not create a new ground for eviction. If the landlord wishes to repossess the property, they must use the established statutory regime in the ordinary way. As the obligation is on the landlord to check before the tenancy starts, evicting the tenant subsequently does not remove the landlord’s liability under s.22.
Some consider this to be an inappropriate assignment of the State’s obligations, making private landlords responsible for checking on immigration status. It certainly appears to be yet another obligation for landlords to meet, and for tenants to pay for.
There is also a natural concern that the requirement for these checks will fuel discrimination. The Home Office has issued guidance on this too:
(https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/376789/Code_of_Practice_for_Landlords__web_.pdf, a more user-friendly 16 pages long.
It could be said that any legislation which requires a code of practice to avoid discrimination in its implementation is a bad idea. Only time will tell.
Further guidance on this and other housing matters can be sought from the Becket Chambers Land Law team.