Q&A: Right to rent under the Immigration Act 2014

01 / 03 / 2016

In this article, which will be of particular interest to landlords and letting agents, Anna Lewis and Jonathan Achampong explore some of the key features of the ‘right to rent’ scheme introduced on 1 February 2016.

What are the recent changes to the Immigration Act 2014?

The Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) (Amendment) Order 2016 has now come into force.

What are the implications for the world of property?

From 1 February 2016, all private landlords in England must carry out ‘right to rent’ checks on prospective tenants over the age of 18.

If a tenant turns 18 years old during the course of the tenancy, there is no requirement to  carry out a check on them at this stage, save for in circumstances where repeat checks are required (see below).  

What are ‘right to rent’ checks?

Landlords and agents will have to check the status of prospective tenants, other ‘authorised occupiers’ and even lodgers, to ascertain whether those parties have the right to be in the UK.

An ‘authorised occupier’ is generally someone who has the right to live in a property as their “only or main home” and who is not named on the tenancy agreement.

If there is any doubt as to whether a property is someone’s “only or main home”, various factors should be considered, such as whether they keep the majority of their belongings at the property or they have personal, legal or family ties to the property.  

The checks will not have to be carried out on people renting holiday homes or those who use the increasingly popular Airbnb website because these are generally for short stays. 

Landlords must also make sure that someone’s right to occupy the premises does not lapse. This may happen where prospective tenants only have a time-limited right to rent, for example because they are not British citizens, EEA or Swiss nationals and do not have indefinite leave to be in the UK.  Instead, they may have valid leave to enter or remain in the UK for a time limited period. Follow-up checks should be carried out to ensure there is still a right to rent. If someone is found to no longer have a right to rent, in order not to face a penalty, the landlord should report the individual in question to the Home Office as soon as reasonably practicable.

What happens if a landlord ignores the new rules?

If a property is let to someone who is not allowed to be in the UK, the landlord (or agent, if responsibility for checking right to rent documents is passed on to them) could face a civil penalty of up to £3,000 per tenant, depending on whether or not they have committed breaches in the past.

Who must be checked?

All tenants aged 18 and over even if:

  • they are not named on the tenancy agreement; or
  • the tenancy agreement is not in writing; or
  • there is no tenancy agreement.

What does carrying out ‘checks’ actually involve?

Checks have to be carried out on residential tenancies which have been entered into or after 1 February 2016. Official government guidance includes a four point checklist as follows:

  1. Check which adults will live at the property as their “only or main home”.
  2. See the original documents that allow the tenant to live in the UK.
  3. Check that the documents are genuine and belong to the tenant, with the tenant present either physically or via video link. Sometimes the tenant is living overseas and looking to arrange accommodation for work or study in the UK before they arrive. In these circumstances, landlords are allowed to check a person’s right to rent before taking up actual occupation of the property, rather than before the start of the tenancy agreement.
  4. Make and keep copies of the documents and record the date the check was made. Documents must be kept for the duration of the tenancy and one year after its termination.

Can landlords use letting agents to carry out the checks?

Agents that manage or let a property can carry out the checks on behalf of a landlord. This agreement should be in writing. Any liability for breach passes on to the agent. However, a landlord will continue to be liable if the agent, following a check, reports a potential contravention to the landlord who then does nothing about it.

Has the ‘right to rent’ system not already been in place for some time?

Landlords with property in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton have been making checks on their tenants’ right to rent since 1 December 2014. These areas were selected for a pilot scheme which has now been rolled out nationally.

Are there pitfalls landlords should look out for?

Landlords should make sure that they do not fall foul of anti-discrimination laws by preferring British nationals over any others. Landlords should also be sure to protect tenants’ personal data under the Data Protection Act 1998 by keeping copies of documents, whether paper or electronic, secure and for no longer than the time required.

Where can one get more information and advice?

More details about the documents required, as well as a printable checklist, are available in this Home Office user guide. This Home Office video may also help. However, as is often the case, the legislation is not straightforward and nothing you read or see on the internet should ever be construed as legal advice. Accordingly, if you need legal advice, get in touch with Jonathan Achampong, Anna Lewis or a member of our Residential Property team.