From 1 February 2016 residential landlords must carry out “right to rent” checks on prospective tenants and occupiers. The aim is to stop illegal immigrants renting private accommodation in the UK.
What are the new requirements?
A landlord of residential premises must not allow an adult to occupy those premises as their only or main home unless he or she has a “right to rent” in the UK. A right to rent is enjoyed by anyone who is a British citizen, an European Economic Area (EEA) or Swiss national, or who is lawfully present in the UK in accordance with immigration laws – this may be for a limited or an unlimited period and slightly different requirements apply in each case.
While there is a penalty of up to £3000 if there is a breach, landlords have a “statutory excuse” against liability if they:
- carry out an initial right to rent check before allowing an adult to occupy
- if the check discloses a time-limited right to rent, conduct follow-up checks on the appropriate date; and
- report to the Home Office if those follow-up checks indicate that an occupier no longer has the right to rent.
The government is considering supplementing this scheme with new rights allowing landlords to evict illegal migrant tenants more easily and new criminal offences to target unscrupulous landlords and agents who persistently fail to carry out the checks or who fail to take steps to evict illegal migrants on notice from the Home Office. We will report further if and when these proposals take effect.
When do the new requirements apply?
Following pilots in parts of the West Midlands, the new requirements apply to most residential tenancy agreements (including licences) granted in England on or after 1 February 2016.
Home Office guidance states that checks are not needed on the renewal of a tenancy initially granted before then if the renewal is between the same parties, at the same property and without a break. But where a landlord consents to a variation or an assignment of an existing tenancy resulting in new occupiers, this is treated as the grant of a new tenancy triggering the need for compliance.
Several categories of residential tenancies are excluded from the scheme. These include student accommodation, care homes and hospices, hostels, social housing, other accommodation arranged by local authorities under a statutory duty or power and leases for a term of seven years or more, provided that there is no break clause during the first seven years.
Of course, as the scheme only applies to rented premises occupied as a main home, it does not apply to holiday accommodation that is used as such.
- Landlords need to have processes in place to comply with the new right to rent checks, although they have the option of appointing a professional agent to do so on their behalf. Any such appointment should be in writing and the agent must confirm that they accept responsibility for compliance. Home Office guidance also recommends that the appointment includes agreed timescales for the checks and reports to the landlord on their outcome.
- The initial right to rent check is relatively straightforward and involves four basic steps:
- establishing the identity of all the adults (and not just the named tenants) who will live at the premises as their only or main home by making reasonable enquiries and keeping a record of the questions asked
- obtaining originals of one or more “acceptable” documents of identity for each adult. The “acceptable documents” are listed in the Code of Practice referred to below and include a British passport and permanent residence card for the EEA and Switzerland. If an individual cannot provide the landlord with an acceptable document but claims that they are dealing with the Home Office, the landlord must verify this with the online Home Office Landlords Checking Service
- checking in the presence of the adult concerned that the documents are genuine and relate to that person; and
- making copies of the documents and retaining them with a record of the date on which the check is made. Home Office guidance suggests that these should be kept for one year after a tenancy ends.
- Timing: if a person has an unlimited to right to rent, the initial check can be done at any time before the tenancy is granted. In the case of a time-limited right to rent, checks must be undertaken within the 28 days before the tenancy starts. Special rules apply where a prospective occupier is outside the UK and this might prove difficult.
- Follow-up checks: in the majority of cases the initial right to rent check will establish an unlimited right to rent, in which case no follow-up checks are necessary. But if the initial check establishes a limited right to rent (such as a passport or travel document showing that the holder is only allowed to stay in the UK for a limited period) the landlord must carry out a follow-up check before the later of the expiry of the permission to remain or the document granting permission, or 12 months after the initial check (the follow-up check deadline).
- If the follow-up check indicates that an occupier no longer has the right to rent, the landlord need not evict the occupier but must report to the Home Office as soon as reasonably practicable and in any event before the follow-up check deadline. If, on the other hand, it discloses that the occupier still has a limited right to rent, the follow-up check should be repeated as often as is necessary.
- A landlord acquiring residential properties that are already let should seek confirmation and evidence that the necessary checks have been conducted, keep a record of this and diarise any follow-up checks required.
- On the other hand, a landlord selling a residential portfolio should be aware that they will continue to be liable after sale if a tenancy was granted on their watch to a person with no right to rent.
- Finally, landlords cannot draft their way round the scheme: a term in a tenancy agreement prohibiting occupation by a person with no right to rent will not excuse a landlord from having to conduct right to rent checks nor absolve them from liability if they know that a breach has been, or will be, committed.
Further detail on right to rent checks and how to conduct them can be found in a statutory Code of Practice on illegal immigrants and private rented accommodation and a User Guide, both published by the Home Office. There is also a Landlords’ Helpline: 0300 069 9799.