Tenant Immigration Checks
The Immigration Act 2014 places another layer of responsibility on landlords in the PRS by requiring them to check the immigration status of their tenants under the Right to Rent Scheme. The scheme went nationwide on February 1st 2016 after being trialed in the North of England from 1st December 2014 in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton.
The aim of the scheme is to prevent those with no rights to be in the UK from accessing PRS housing.
The following article has been part-sourced from Property Industry Eye.
In short the basic principle of Act is that a landlord may not allow an adult to occupy a property under a residential tenancy agreement (this also includes lodgers) unless they satisfy one of three criteria:
- The adult is a British Citizen;
- They are an EEA or Swiss National;
- They have a right to rent in the UK. This means that if a potential tenant has an outstanding immigration application or appeal with the Home Office, a check on that person’s ‘right to rent’ can be carried out via the Landlords Checking Service which will then provide a ‘yes’ or ‘no’ answer within 2 working days. The request form can be downloaded from here. This response will have its own unique reference number and will contain details as to when follow up checks are required and should be kept.
As this Act applies only to the PRS, as the aim of the scheme is to prevent those with no rights to be in the UK accessing PRS housing, rhe following are exempt:
- Councils (including their discharge of homeless duty via the private sector), as are other social landlords where they have already been required to consider immigration status before allocating property.
- Hostels and refuges which are managed by social landlords, voluntary organisations or charities, or which are not operated on a commercial basis (and whose operating costs are provided either wholly or in part by a government department or agency or a local authority) are also exempt.
- Leases which grant a right of occupation for a term of 7 years or more are exempt as these are more akin to home ownership than traditional landlord and tenant arrangements. An agreement will not grant a right of occupation for a term of 7 years or more if the agreement can be terminated at the option of a party before the end of 7 years from the start of the term.
- A lease which contains a forfeiture or right of re-entry for the landlord is not considered to include an option to terminate and so is excluded from the Scheme.
Note: A lease containing a break clause will include an option to terminate and so does not benefit from the exemption.
If an occupier subsequently sub-lets and authorises occupation by other adults under another residential tenancy agreement, then they will be responsible for occupation by the sub-tenants and sub-occupiers. Any occupier who sub-lets all or part of their accommodation to a person for money will be a landlord for the purposes of the Scheme, and may be liable to a civil penalty if they do not undertake sufficient checks and allow occupation by a person who needs but does not have a right to rent. This applies equally to occupiers sub-letting private or social housing.
However, where an occupier sub-lets and so becomes a landlord, they can ask their landlord (the ‘superior landlord’) to agree to accept responsibility for conducting right to rent checks and any liability to a penalty, an agreement that must be made in writing. In this situation, the superior landlord is treated as though they have authorised the occupation by the sub-tenants themselves, and are the responsible landlord for the purposes of the Scheme. To protect themselves from liability for a penalty they will need to take the same steps that they would if they were granting the residential tenancy agreement themselves, including a) ascertaining who will be authorised to occupy the property as their only or main home under the sub-tenancy, b) checking the status of those persons, making any follow upchecks and reports where necessary, and c) and/or instructing an agent to comply with these requirements for them.
Unless the superior landlord confirms that they are willing to accept this responsibility in writing, then the occupier who is sub-letting will be the responsible landlord for the purposes of this scheme.
If an agent is used then the Scheme allows landlords to agree with them (in writing) who is responsible for fulfilling the requirements of the Scheme and so liable to a penalty. The agent can then establish an excuse against any penalty. Whilst agents appointed for this purpose must act in the course of a business, they do not have to be a letting or managing agent.
If the agent is responsible for taking the steps necessary to establish an excuse against a penalty if a breach of the Scheme is found, they will need to be granted time to undertake the checks in relation to the occupiers, and report back
to the landlord on what they find. Provided they undertake the required steps before the residential tenancy agreement is entered int and provide advice to the landlord in reasonable time they will be excused from the penalty.
It is therefore in the interests of both parties to agree a timescale in which a) checks will be undertaken and b) a report made to the landlord.
If there is also a superior landlord who has agreed to accept responsibility for occupation by sub-tenants it should be determined beforehand which of them the agent is required to make a report to. If the agent establishes that a person has no right to rent and reports this in writing to either landlord then either will be liable to a penalty.
The right to rent checks need to made in the 28 days before the tenancy starts and the property must be the persons only or main home. These requirements do not just apply to the named tenant(s) but any other known occupiers of the property. Additionally if the tenant sublets (whether legally or illegally) they become the responsible person for undertaking the checks.The landlord must see the original documents along with the intended tenant. There are two lists which set out the types of documents that are acceptable: Group 1 which is sometimes referred to as the ‘Safe List’ and which are passports and Visas, and Group 2 which are ‘Semi-safe Lists’ that can be a European Economic Area passport or identity card, a biometric permanent residence card or travel document showing indefinite leave to remain, a Home Office immigration status document or certificate of registration or naturalisation as a British citizen.
Copies must be taken, a record kept of how and when they were taken (and by whom) and they must be kept for one year after the tenancy ends.
If there is a time limit to the right of the tenant to be in the UK, such as a time limited visa, if that document has even one day beyond the start of the tenancy left on it then the tenant will have a right to rent for 12 months. The landlord must then do a follow up check either within 12 months or if the right to remain is later (i.e. longer than 12 months) at the end of this right. Again, failure to make these checks will also carry the risk of fines of up to £3,000.
Note: As such checks must be done within 28 days before hand this means in month 11 or the month before the right expires landlords should ensure they have systems in place for recording when follow up checks are required.
Checks By Letting Agents
If such checks are transferred to a letting agent they must be done specifically in writing. Agents should bear in mind that the checks should be carried out on all new tenants and they may also have to refer to their own standard contracts, terms and conditions. They must also ensure that any of their current reference checks cover immigration status and both landlords and letting agents are also obligated to report any suspicions that the tenant might be an illegal immigrant to the relevant authorities.
A guide to evicting tenants under the Immigration Act 2014 can be read here.