In a press release dated 22nd October 2015, the Government announced that from 1st February 2016, all UK landlords will be required to check that prospective tenants have a legal right to be in the UK or face a fine of up to £3,000 per tenant.
It is vital that both landlords and tenants become familiar with the new rules as:
- the new immigration Bill currently proceeding through Parliament will extend the penalty to five years imprisonment for landlords who fail to carry out checks; and
- evidence gathered by the Joint Council for the Welfare of Immigrants, suggests that landlords will discriminate against tenants with complicated immigration status and those who cannot produce documentation immediately
Given these two rather alarming facts, we have put together this question and answer article which explains to both landlords and tenants what their legal obligations are under the new law in a clear, concise manner.
Landlord's Right to Rent Check Obligations
Who Is Obligated to Perform Right to Rent Checks?
Under the immigration Act 2014, all private landlords and their agents must make right to rent checks on all new tenants from 1st February 2016. Individuals sub-letting property and householders who take in lodgers must also ensure that the prospective tenants have a legal right to be in the UK.
Everyone living in the property over the age of 18 years must have their immigration status checked regardless of whether or not their names are on the lease agreement.
How Are the Checks on Prospective Tenants to be Made?
The landlord, agent or householder is required to check the relevant documentation to ensure everyone over the age of 18 years has a legal right to be in the UK and record the date when this check is made. ‘Reasonable enquiries’ must be made as to who will occupy the premises.
‘Relevant documentation’ includes:
- a passport
- an identity card
- a biometric immigration document issued by the Home Office
- a passport or travel document showing the tenant has an Indefinite Leave to Remain in the UK
- a certificate of naturalisation as a British Citizen
You can find a complete list of approved documents here.
Once the checks have been made and the landlord, agent or householder is satisfied that the prospective tenant has a legal right to reside in the UK, they must keep an electronic or paper copy of the document for the duration of the tenancy and a further 12 months after the tenancy ends.
How is the Term ‘Reasonable Enquiries’ Defined?
What amounts to ‘reasonable enquiries' in this context will depend on factors such as:
- the size of the property and the number of bedrooms
- how many people the tenant states will be living in the property
- does the letter of the property/room believe that the tenant will be using the property as his or her main home
For example, if you are letting a one bedroom flat then it would be reasonable to assume that a couple applying to rent it would be the only occupants of the property. If, however, a single person or couple with no children is trying to let a five bedroom house, then landlords are required to make further enquiries as to who else may be living at the premises to check their immigration status.
How Does a Landlord Verify a Document?
To verify the validity of the documents the landlord is required by law to:
- have original copies of the document/s
- check them in the presence of the prospective tenant, either in person or via live video link
- look for obvious signs of forgery, for example, the birth date is implausible, the document looks to have been aged deliberately, blurry photos or text, signs the text or photos have been altered by a third party
- check the names, dates of birth and other relevant details are the same on all documents
- check the photo and date of birth against the appearance of the document holder
landlords, agents and householders are not required to be experts in detecting forged documentation
and will only be liable for a civil penalty if it is reasonably apparent that the document is false.
When are Repeat Checks Required?
If a tenant produces documents that show they only have a limited right to stay in the UK, then a landlord must diarise to repeat the checks within twelve months of the initial check or shortly before the expiry date of the tenants documentation; whichever comes first.
How Does a Homeowner or Agent Report Someone who no Longer has a Right to Rent?
If subsequent checks on the tenants’ documentation show that they no longer have a right to rent property in the UK, the landlord, homeowner or agent must report this finding to the Home Office as soon as possible to avoid a civil penalty. landlords may continue to collect rent and there is no requirement to evict the tenant.
What is Meant By ‘Statutory Excuse’?
As long as a landlord, agent or householder retains evidence that they carried out checks on all tenants over the age of 18 years before they rented a premises or room to them; then they have a ‘statutory excuse' against any civil penalty. If a landlord, agent or householder fails to perform any of the obligations listed above then he or she may be liable for a fine of up to £3000 per tenant.
If you do receive a civil penalty then you can appeal; however, this must be done within 28 days of receiving the notice.
OTS Solicitors have the experience and expertise to advise landlords through this new process. We will ensure that you not only abide by your statutory requirements under the immigration Act 2014, but you also act fairly towards your tenants to prevent any claims of discrimination arising against you.
To talk to us further, please phone our London office on 0207 936 9960 to make an appointment with one of our immigration law experts.
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For the best expert legal advice and outcome on your UK immigration application, contact OTS immigration solicitors on 020 7936 9960 or contact us online.
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Posted on: Thursday, 22 October, 2015