The Immigration Act 2014 imposed a legal duty on residential landlords to ensure that their tenant has a ‘right to rent’. This means that as a landlord you must not allow anyone to occupy your property as their only or main home under a residential tenancy agreement unless they are legally entitled to live in the UK. The responsibility for ‘right to rent checks’ was first introduced in parts of the Midlands on 1 December 2014 and has since been rolled out to the rest of the country. As of 1 February 2016 it is now the responsibility of all landlords in England to carry out a simple check on all new tenants before allowing them to occupy a property.
However, this only applies to tenancies commencing on or after December 2014 (in the Midlands) and 1 February for the rest of the England. This does not apply to tenancy agreements signed previously or which are renewed after that date, provided that the tenancy agreement is between the same parties and there has not been any break in occupation by the tenant.
When is a person entitled to live in the UK?
A person is entitled to live in the UK if: they are a British citizen, a citizen of a country within the European Economic Area (EEA), a Swiss national or if they have a ‘right to rent’. A person has a ‘right to rent’ if they are residing lawfully in accordance with UK immigration laws.
Which properties are covered by right to rent checks and are any excluded?
Under the new rules a landlord should carry out right to rent checks when setting up all residential tenancy agreements. This includes:
- Lettings under a lease for less than seven years;
- An assured shorthold tenancy agreement;
- Sub-lease or sub-tenancy (including lodgers).
There are certain circumstances where a property is excluded from the regulations. These properties include:
- Accommodation used by a local authority to house homeless people;
- Social housing where the local authority has considered immigration status before allocating a property;
- Care homes and hospitals;
- Hostels and refuges managed by social landlords;
- Mobile homes occupied under the Mobile Homes Act 1983;
- Accommodation tied to employment;
- Student accommodation in halls of residence, unless a student is nominated by the educational establishment to occupy the accommodation;
- Leases granted for more than seven years;
- Accommodation clearly let for holiday purposes and visitors to the property.
There is a risk that adult visitors could be concealed permanent residents. There are various factors to take into account when assessing whether or not a person occupies the property as their only or main home. If in doubt the landlord should assume that the property is the tenant’s main residence and carry out the right to rent checks. When doing this the landlord should request and retain a copy of any immigration checks carried out by the local authority or educational establishment.
Responsibility can pass from the actual landlord to another person for example a letting agent appointed by the landlord, an occupier who sub-lets, or a new landlord where the property has been sold with a sitting tenant.
What happens if no checks are carried out?
If a landlord is believed to be in breach of this obligation, a notice can be served requiring them to pay a fixed penalty per illegal occupier. For a first offence where the occupier is a lodger the penalty is currently £80 per occupier and for any subsequent breach the penalty is currently £500 per occupier. Where the occupier is a tenant in private rented accommodation the initial penalty is £1000 per occupier and £3000 per occupier for any subsequent breach.
An original landlord cannot avoid a penalty by selling the property on because they are still responsible if it is found that the tenant had no right to rent at the time that the original tenancy agreement was granted. Furthermore if a tenant had a right to rent originally but has since lost that right and no follow up checks were carried out, the person who is the landlord at the time of the right to rent ending will be responsible.
As a landlord, what do you need to do?
A penalty can be avoided if a landlord carries out reasonable document checks at the time the property is first let and also at the appropriate date when the occupier’s right to rent is time limited or has/is due to end. If follow up checks reveal that the right to rent has expired this must be reported to the Home Office.
The initial checks must be undertaken within 28 days of the tenancy agreement being entered into and must be in accordance with the following steps:
- Identify which adults will be occupying the property as their only or main home (if in doubt consider that all adult occupiers are treating it as such);
- Obtain original versions of one or more ‘acceptable documents’ proving the right to rent;
- Check them in the presence of the holder of the document;
- Make copies, date them and retain the copies.
If the tenant is unable to provide documents to prove a right to rent the landlord can use the Home Office Landlord’s Checking Service to ensure they are not liable. A landlord can find this and also a list of acceptable documents on the government’s website.
For further advice on right to rent checks or any other residential property, please contact our residential property team on 0161 475 7676