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Immigration Status Checks on Residential Tenants and Occupiers

January 2016

Immigration status checks to apply to whole of England

The Immigration Act 2014 introduced a requirement for residential landlords to conduct checks on new adult tenants and occupiers to ensure that they have the right to reside in the UK. The aim is to make it difficult for illegal migrants to rent property.

Landlords in certain parts of the West Midlands have had to carry out these checks since December 2014. From 1 February 2016 the scheme will apply to all residential landlords in England.

What is the right to rent?

Essentially, a person has the right to rent if they are a British citizen or an EEA or Swiss national or if the person has leave to remain in the UK. Other people are disqualified from renting property in the UK.

The implications for Landlords

Landlords must not allow properties to be occupied by people who are disqualified from renting. Landlords can be fined up to £3,000 for breaching this rule. However, landlords will not be fined if they can demonstrate that they have carried out appropriate checks on their tenants’ immigration status. Landlords may also avoid liability by appointing a letting agent to carry out the checks. The appointment must be made in writing.

What checks are required?

The checks are similar to the “right to work” checks that employers are required to undertake. The Home Office right to rent tool can be found here. There is also a User Guide here and a more detailed Code of Practice here.

For more complex cases, a check can be requested from the Home Office’s Landlords Checking Service by submitting an online form.

Landlords must retain copies of the tenant’s documents for the duration of the tenancy and for one year after. The information must be kept securely and in accordance with the Data Protection Act 1998.

Implications for letting agents

As mentioned above, if a landlord uses a letting agent to negotiate the letting, and the agent is expressly responsible (under a written agreement) for carrying out the checks, the responsibility for carrying out checks and paying any fine falls on the agent rather than the landlord.

Our Residential Lettings Agency Terms and Conditions already include a clause making the agent liable for carrying out right to rent checks if they apply to the area in which the property is situated.

Other forthcoming changes

The Immigration Bill 2015-16 is currently going through Parliament. If it is enacted, which may be as soon as this summer, it will:

  • Make it harder for illegal migrants to rent property in the UK by giving landlords new eviction powers.
  • Create new criminal offences for landlords and lettings agents who deliberately and repeatedly let properties to illegal migrants. Guilty parties will face a fine and/or imprisonment.

We will provide further information when the draft legislation has been finalised.

New documents

We have created a new Right to Rent Checklist for Landlords and a separate Checklist for Agents. They clearly explain what documentation is required from the tenant, what records must be kept and how to deal with complex cases.

The contents of this Newsletter are for reference purposes only and do not constitute legal advice. Independent legal advice should be sought in relation to any specific legal matter.

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