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The Immigration Act 2014 places new restrictions on illegal immigrants accessing private rented accommodation (as well as other areas such as driving licences) and it falls to Landlords to carry out checks to identify if a potential tenant has the right to reside in the UK. These are to be called ‘Right to Rent Checks’.

The scheme was trialled, from 1^st December 2014, in areas in the West Midlands and was rolled out nationally from 1st February 2016.

The Immigration Act 2014 places new restrictions on illegal immigrants accessing private rented accommodation (as well as other areas such as driving licences)and it falls to Landlords to carry out checks to identify if a potential tenant has the right to reside in the UK. These are to be called ‘Right to Rent Checks’.

The scheme was trialled, from 1^st December 2014, in areas in the West Midlands and was rolled out nationally from 1st February 2016.

The Immigration Act 2016 came into force on 1st December 2016 and has created new criminal offences in relation to renting to illegal immigrants as well as introducing a notice only ground if the Home Office serves a notice advising the only occupier is a person not having the right to rent in the UK.

Government Codes of Practice can be found in the Additional Resources section below as well as useful guide from the Home office.

Landlords / Agents and Tenants of private rental residential properties (initially it was only in the W Midlands area selected for the initial pilot area) are affected by this legislation.

Landlords / Agents and Tenants of private rental residential properties (initially it was only in the W Midlands area selected for the initial pilot area) are affected by this legislation.

Checks are required for tenancies starting on or after 1st February 2016, but not retrospectively for those that started before. Where a fixed term becomes periodic, this will not be considered to be a break in tenancy.

All adults (18yrs and over) living at the property, whether or not they are named on the tenancy agreement, are subject to the checks. Children are exempt but landlords will need to satisfy themselves that the person is under 18.

Whoever authorises occupation of the accommodation will be responsible for conducting the checks. Landlords can instruct their agents to undertake checks on their behalf but will need to ensure that a written agreement exists transferring this responsibility. It is important to include clearly, in agents’ terms of business, where the responsibility rests.

Whoever authorises occupation of the accommodation will be responsible for conducting the checks. Landlords can instruct their agents to undertake checks on their behalf but will need to ensure that a written agreement exists transferring this responsibility. It is important to include clearly, in agents’ terms of business, where the responsibility rests.

Where an agent has accepted responsibility for carrying out the checks, it is the responsibility of the landlord to ensure that a tenant is not granted a right of occupation before the agent has the opportunity to undertake the checks and report back to the landlord regarding the outcome.

If tenants sublet and authorise occupation, either under another residential tenancy agreement or just taking in a lodger, they will be responsible for the Right to Rent checks and will therefore be liable for any penalty. This applies equally to tenants within private or social housing

The tenant needs to provide the  landlord or letting agent with evidence of their right to rent. The landlord or agents’s procedures should let the prospective tenant know in advance what they require, but then the onus is on them to provide it.

The landlord or agent will need to see ORIGINAL documents, but they could ask the tenant to come with copies already made if they are not meeting in an office.

A Code of Practice details lists of accepted documents.

The tenant needs to provide the  landlord or letting agent with evidence of their right to rent. The landlord or agents’s procedures should let the prospective tenant know in advance what they require, but then the onus is on them to provide it.

The landlord or agent will need to see ORIGINAL documents, but they could ask the tenant to come with copies already made if they are not meeting in an office.

A Code of Practice details lists of accepted documents.

Also there is a distinction between a continuous right to rent and limited right to rent. This is important for how and when any follow-up checks are undertaken.

In the Code of Practice, List A documents provide evidence of a person’s continuous right to rent in the UK and consists of two groups:

Group 1 – Acceptable single documents

Group 2 – Acceptable document combinations

List B documents provide evidence of a person’s limited right to rent in the UK, (so future checks will be necessary)

List A – Acceptable documents establishing a continuous statutory excuse (draft)

Group 1 – Acceptable single documents

• A passport showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.
• A passport or national identity card showing the holder, or a person named in the passport as the child of the holder, is a national of the European Economic Area or Switzerland.
• A Registration Certificate or Document Certifying Permanent Residence issued by the Home Office, to a national of a European Union, European Economic Area country or Switzerland.
• A Permanent Residence Card, indefinite leave to remain, indefinite leave to enter or no time limit card issued by the Home Office, to a non-EEA national the family member of a national of a European Union, European Economic Area country or Switzerland.
• A valid Biometric Residence Permit issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK.
• A valid passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK.
• A valid Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is permitted to stay indefinitely in the UK or has no time limit on their stay in the UK.
• A certificate of registration or naturalisation as a British citizen.
• Documents held by persons exempt from immigration control (e.g. diplomatic passports, NATO ID card)

Group 2 – Acceptable document combinations , i.e. any two of the following documents

• A full birth or adoption certificate issued in the UK, the Channel Islands, the Isle of Man or Ireland, which includes the name(s) of at least one of the holder’s parents or adoptive parents.
• Letter of Attestation from a named government or local government official or British passport holder, (giving their name, address and passport number) issued within the last 12 months or a UK based employer’s reference issued within the last 12 months.
• Letter from a UK police force confirming the person is victim of crime and personal documents have been stolen issued within the last 3 months.
• Evidence of the person’s previous or current service in HM armed forces.
• HM prison discharge papers or probation service letter.
• Official results of credit reference check showing person has been economically active in the UK for the past 12 months or any year in the past 5 years.
• Letter from a UK further or higher education institution confirming the person’s acceptance on a course of studies.
• A current UK driving licence (a full or provisional).
• Current UK Firearms Certificate.
• Disclosure and Barring Service certificate issued within the last 6 months.
• Benefits paperwork issued by HMRC, Local Authority or a Job Centre Plus, on behalf of the Department for Work and Pensions, within previous 12 months prior to commencement of tenancy.
• Salary statements or wage slips issued by a UK based employer within the last 6 months.

List B – Acceptable documents establishing a time-limited statutory excuse

Group 1- Documents where a time-limited statutory excuse lasts until the expiry of leave

• A current passport endorsed to show that the holder is allowed to stay in the UK.
• A current Biometric Residence Permit issued by the Home Office to the holder, which indicates that, the named person can currently stay in the UK.
• A Residence Card or a Derivative Residence Card issued by the Home Office to a non-EEA national who is either a family member of a national of a European Union, European Economic Area country or Switzerland or has a derived right of residence in the UK under European Union law.
• A valid Immigration Status Document issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK.
• A “yes” response  from the Landlords Checking Service to a right to rent request sent directly to the landlord (N.B. this is not transferrable).

The person undertaking the Right to Rent check undertakes basic visual checks to ensure that the document or documents relate to the tenant. They should:

• Compare any photographs in the documents, and dates of birth against the appearance and apparent age of the holder.
• Where a variety of documents have been presented check names, photographs and dates of birth are consistent.

   

  The person undertaking the Right to Rent check undertakes basic visual checks to ensure that the document or documents relate to the tenant. They should:

   

  • Compare any photographs in the documents, and dates of birth against the appearance and apparent age of the holder.
  • Where a variety of documents have been presented check names, photographs and dates of birth are consistent.
  • Check the documents appear to be genuine

   

  If you are given a false document you will not have a statutory excuse if it is reasonably apparent that it is false. The Home Office consider the falseness to be reasonably apparent if an individual, who is untrained in the identification of false documents, examining it carefully, but briefly, and without the use of technological aids, could reasonably be expected to realise that the document in question is not genuine.

  Equally, where a person presents a document and it is reasonably apparent that the person presenting the document is not the person referred to in that document; even if the document itself is genuine then you will also not have a statutory excuse.

   

• In order to complete the checks you must have the original documents in your hands and either have the person face to face or live on a video link. checks for those with a time limited right to rent must be done within 28 preceding moving into the property.

If the document is from List A:

• Landlord/agent takes a copy of the original,
• dates the copy,
• retains on file for 12 months after the tenancy agreement has ended.

If the document is from List B:-

• Landlord takes a copy of the original,
• dates the copy and retains on file for 12 months after the tenancy agreement has ended.

   

  If the document is from List A:

  • Landlord/agent takes a copy of the original,
  • dates the copy,
  • retains on file for 12 months after the tenancy agreement has ended.

   

  If the document is from List B:-

  • Landlord takes a copy of the original,
  • dates the copy and retains on file for 12 months after the tenancy agreement has ended.
  • The landlord is required to undertake a further check 12 months later or after the leave has expired, which ever is the later.

   

  All copies should be dated and retained on file for 12 months after the tenancy agreement has ended.

   

  If from list B, it would be wise to check at any tenancy renewal – completing early is not a problem

   

  The landlord/agent does not need to contact the Home Office or let the Home Office know that they have undertaken the check.

   

  The checks only relate to a person’s right to rent in the UK, the landlord/agent will still have to do the normal credit, identify checks, etc.

   

   

   

If no documents in either List A or List B but they do have an active application with the Home Office:

• Landlord/Agent completes and submits the on-line request for a right to rent check, (on the Government website – link in the Additional Resources section below), or email request
• The Home Office ‘Landlords Checking Service’ team conducts the checks, then emails a yes or no  –  right to rent confirmation  – to the landlord/agent, within 48 hours

   

  If no documents in either List A or List B but they do have an active application with the Home Office:

   

  • Landlord/Agent completes and submits the on-line request for a right to rent check, (on the Government website – link in the Additional Resources section below), or email request
  • The Home Office ‘Landlords Checking Service’ team conducts the checks, then emails a yes or no  –  right to rent confirmation  – to the landlord/agent, within 48 hours

     

    A ‘yes’ response provides a statutory excuse to that landlord (or their agent) for 12 months.

    If ‘no’, the landlord should not rent to that tenant unless that tenant can subsequently provide evidence from either List A or List B.

   

  To request a check from the Home Office, you will need the following information from the tenant

   

  • permission from the tenant to request the check (either verbal or in writing)
  • name
  • date of birth
  • nationality
  • Home Office reference number

   

From 1st December 2016 the Immigration Act 2016 introduced a new ‘notice only’ eviction procedure and a new mandatory ground under the existing Section 8 possession process.

From 1st December 2016 the Immigration Act 2016 introduced a new ‘notice only’ eviction procedure and a new mandatory ground under the existing Section 8 possession process.

• S.40 introduces a ‘notice only’ ground. This can be used where the Landlord has been notified by the Secretary of State that the occupier(s) of the premises is disqualified from renting the premises because of their immigration status. It will be a prescribed notice giving the occupier(s) 28 days notice that they must leave the premises. Landlords can only use this ‘notice only’ ground where ALL the occupiers are disqualified from renting. Importantly this notice will be treated as if it was an Order from the High Court, however, even more importantly it  will NOT require bailiffs to enforce. s.3A Protection from Eviction Act 1977 is amended by ss.33E(5)  so as to exclude such a tenancy from protection. So the Landlord can self-evict, having regard for other offences that might well be committed in such a situation (assault for example).

• Ss.33(E) produces a new ground for section 8 notices; 7B, that should be used where one or more occupier has been disqualified from renting but not all of the occupiers have. This will be a mandatory ground enforceable in the normal way (county court and bailiffs/HCEOs). The notice has to be for at least 14 days (subject to other section 8 grounds being claimed a the same time).  All the Landlord will need to prove is that at least one of the occupiers is subject to a notice from the Secretary of State. However, any occupiers not on the notice, can apply to have the tenancy transferred into their name.

The Immigration (Residential Accommodation) (Termination of Residential Tenancy Agreements) (Guidance etc.) Regulations 2016 contains the prescribed form for the ‘notice only’ ground. The mandatory ground under section 8 uses the current Section 8 notice relying on ground 7B.

As the Immigration Act only applies to England so does this ground.

Exemption examples include:

Exemption examples include:

• Accommodation provided by employers for their employees – Employers are already subject to checks under different legislation
• Holiday lets  – although if the booking is open ended, or the initial booking was time limited but has subsequently been extended on one or more occasions such that the occupant appears to be using the premises as their only or main residence, then it would be advisable to undertake checks.
• If it is not the tenant’s only or main home  – If there is any doubt about it being the tenant’s main home – do the check. As a guide, the Home Office would consider that if a person is in occupation for a period of 3 months or longer, they are likely to be occupying the premises as their only or main residence.
• House guests such as friends or family members  – House guests would not be expected to be paying rent or using as their only or main home
• Accommodation involving local authorities, including where the tenant is to be placed into the PRS by the local authority  – Where tenants are taken via a local authority under homelessness regulation, it would be prudent to obtain written evidence from the referring body that they are satisfied with the tenants immigration status.
• Care homes, hospitals, hospices
• Hostels and refuges

Students

• Accommodation provided by Universities and Higher Education institutions is exempt (again they have checking responsibilities under different legislation)
• Purpose built, privately managed student accommodation which has the majority of its residents nominated by one or more education institution is exempt
• Residential tenancy agreements granted to students by other private landlords and accommodation providers are not exempt and will be subject to the same requirements as for all other tenants

The penalties where tenants are found to be in occupation without having the right to rent were originally set as the following levels:

• Lodgers in a private household- Min £80, Max £500
• Tenants in rented accommodation – Min £1,000, Max £3,000

The penalties where tenants are found to be in occupation without having the right to rent, were originally set as the following levels:

• Lodgers in a private household- Min £80, Max £500
• Tenants in rented accommodation – Min £1,000, Max £3,000

The Immigration Act 2016 introduced tougher penalties for Landlords caught renting to persons who do not have the right to rent. From 1st December 2016 Section 39 of this Act made it a potential criminal offence with an unlimited fine and/or prison  to lease premises to someone who does not have the right to rent. A Landlord or agent who is guilty of the offence:

•  is liable on conviction on indictment, to imprisonment of up to 5 years, and/or a fine and potential recovery of rent paid via the Proceeds of Crime Act
• is liable on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine or to both

You can be fined or sent to prison for up to  five years if you fail to tell the Home Office when a tenant fails a follow up check.