With effect from 1 February 2016, the ‘right to rent’ scheme is being extended nationwide. The scheme, introduced under the Immigration Act 2014, requires landlords to check the immigration status of their tenants and not to rent to people disqualified from renting by virtue of their immigration status (i.e. those who do not have the lawful right to reside in the UK).
If the tenant does not have the right to rent and if the landlord had not carried out the correct right to rent checks the landlord may be issued with a civil penalty of up to £3,000 per adult tenant.
There will also be a new criminal offence for landlords and their agents who know, or have reasonable grounds to believe, that their property is occupied by a tenant with no right to rent. The potential sanctions include imprisonment for up to five years.
In future, terms will be implied into residential tenancy agreements allowing landlords to terminate a tenancy where an adult occupant does not have the right to rent and it should also become easier for landlords to evict tenants who have no right to rent.
The new obligation to carry out right to rent checks will apply to:
- private landlords;
- anyone who has a lodger or is sub-letting a property; and
- agents appointed by a landlord to carry out right to rent checks.
To conduct the right to rent check, landlords must:
- Confirm that any adult tenants will live in the property as their only or main home;
- Ask adult tenants for original documentary evidence to demonstrate that they have the right to reside in the UK (e.g. a valid British or EEA passport or a non-EEA passport together with a valid UK visa or Biometric Residence Permit);
- Check any documents provided by the tenants are valid with the tenant present (including checking that the names, dates of birth and photographs are consistent and that the documents do not appear to be forgeries); and
- Make and keep copies of the documents, together with a record of the date the check was carried out. Copy documents must be in a format which cannot be altered (e.g. a photocopy or PDF scan) and must be held for the whole time the individual is a tenant and for a further one year thereafter.
Where a tenant has a time limited right to reside in the UK, the landlord will need to carry out a further check, either just before the expiry date of the tenant’s right to stay in the UK or within 12 months of the previous check, whichever is later. Landlords are also obliged to inform the Home Office if a tenant fails a right to rent check.
Who is responsible for conducting the checks?
The landlord will usually be responsible for carrying out the necessary checks. However, if a landlord relies on an agent to let or manage their property, they may agree in writing that the agent will take responsibility for conducting the right to rent check on behalf of the landlord.
If a tenant sub-lets the property without the landlord’s knowledge, it becomes the tenant’s responsibility to carry out checks on any sub-tenants.
Civil penalties of up to £3,000 per adult tenant may be issued if it turns out the tenant does not have the right to rent and the right to rent checks were either not carried out, or were not carried out correctly by the responsible person.
These are onerous obligations to impose on private individuals who are not trained immigration officers.
The potential criminal sanctions and high civil penalties will almost certainly deter landlords from offering their properties to non-British or non EEA nationals or those with a more complicated immigration status (such as family members of EEA nationals) who cannot immediately provide the necessary documents to evidence their right to reside in the UK. This clearly raises the potential for discrimination against any such individuals.
Further, landlords and agencies should consider updating tenancy agreements to make it clear that tenants must have the right to rent at all times and to require tenants to provide satisfactory evidence of their immigration status upon demand.
Further, if landlords wish to pass this obligation on to the agency they must ensure that the written agreement between the agency and landlord makes it clear who is responsible for carrying out the right to rent checks.
The government has provided guidance for carrying out the checks on www.gov.uk. Landlords and agents should consider these carefully and take legal advice should they have any queries around the new obligations or if they are uncertain whether or not someone has the right to rent in the UK.