Preparing for the Right to Rent – A Landlord’s Guide to the Immigration Act 2014
The Immigration Act 2015 introduced the concept of ‘right to rent’ to the private rented sector. Originally introduced in the West Midlands, right to rent requires landlord and agents check the immigration status of their prospective tenants at the outset of the tenancy. Under the previous coalition government, this introduction to the West Midlands was intended as a pilot scheme. National roll out was only expected to take place after consultation and impact studies had been completed. Sadly, this is no longer the case however and the requirements will come into force on February 1st 2016 for all landlords in England.
This guide will help prepare landlords for the current requirements of this scheme. Please be aware that there are a number of amendments to the Immigration Act currently under consideration and significant changes are expected before the national roll out.
Is this for assured shorthold tenancies only?
No, this applies to all residential tenancies with some limited exemptions for social housing, halls of residence, etc. Almost all private sector landlord will be caught when they anything from AST’s to lodger agreements.
What types of occupancy are exempt?
Holiday lets, lettings where it not the tenants main home, tenancies of more than 7 years where there is no break clause for the landlord, letting to students where the education institution has placed the tenant in the property, people whose accommodation is provided by their employer and finally, mobile homes.
Licences and lodger agreements are included.
What are the requirements?
Landlord must not authorise an adult to occupy a property as their only or main home unless they can establish the adult has a right to reside in the UK. This means landlords are now required to check the identification of everyone who is over 18 and expected to occupy the property.
Is it for new occupation agreements only?
Currently, yes but this is subject to changed based on proposed legislation.
Who is responsible for these checks?
The landlord would normally be responsible for these checks but they can pass on the obligation to their agent as part of a written agreement. This means that the agreement between the landlord and the agent must specifically refer to who is responsible for performing right to rent checks. If the agreement is silent on this then the landlord will be responsible, landlords and agents may wish to reconsider their current agreements as a result
Where the tenant sublets the property they will usually be responsible for checking the right to rent status of their subtenants. However, the landlord can perform the right to rent checks expressly agreed with the tenant who is subletting that they will do so. Landlords will not be liable for unauthorised sub-letting.
What is ‘right to rent?’
Right to rent means simply that the occupier has a right to rent a property in the UK. Anyone without it is disqualified from renting. This can be broken down into two different groups, permanent and time limited rights to rent. Each has different requirements.
Who has a permanent right to rent?
- British citizens, European Economic Area nationals (Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK.) and Swiss nationals.
- People who have a right of abode in the UK; who have been granted indefinite leave to remain; or have no time limit on their stay in the UK.
Who has a time limited right to rent?
Those who are not British Citizens, EEA, or Swiss nationals who have
- Valid leave to enter or remain in the UK for a limited period of time
- Are entitled to enter or remain in the UK as a result of Act of Parliament, European Union Treaties and Immigration Regulations (e.g. family members of EEA nationals). However, some family members of EEA nationals may be able to demonstrate an unlimited right to rent.
My tenant has 3 months left on their right to rent, how long should my tenancy be?
Right to rent checks last for a minimum of 12 months, regardless of how long the tenant’s actual right to reside has left, landlords can therefore safely give 12 month tenancies without issue provided the checks have been made at outset.
Landlord should be wary of discrimination. For example, if a landlord normally offers 6 or 12 month tenancies, it would be discriminating against a prospective tenant if they only offered a 3 month tenancy to someone with only 3 months left on their right to reside.
How often should I check their right to rent?
People with a permanent right to rent need only be checked once before the tenancy commences.
For those with a time limited right to rent, landlord need to keep a note of when the time limit expires and check within 29 days of the tenant’s right to rent expiring. Alternatively, if it falls on a later date, they should check within 29 days of the 12 month anniversary of the previous right to rent check. This follow up check should then hopefully show the tenant has a right to remain in the property.
Based on the proposals in the Immigration Bill 2015, this is very likely to change.
The requirements are for adults. What about children?
Children do not need to be checked but landlords will need to prove they are under 18 unless it is obvious. It would be wise for landlords to keep their birth dates on record so they know when they become adults if they have a time limited right to rent. Particularly where an adult occupier’s right to rent is dependent on this child.
If an occupier turns 18 during the same tenancy they should also be checked.
How do I check the occupiers?
The process for carrying out initial right to rent checks is as follows:
- Establish the adults who will live in the property as their only or main home.
- Obtain original versions of one or more of the acceptable documents for all adult occupiers.
- Check the documents in the presence of the document holder.
- Make and retain copies with the date on which the checks were made.
- Keep copies of the documents for 12 moths after the end of the tenancy.
How many identification documents should I get?
There are over 400 different forms of ID for the EU alone and not all of them are equally useful. Many landlords will take the view that the easiest option is to simply require a passport of any prospective occupier. There is nothing inherently wrong or illegal about this provided the landlord is not making the passport requirement country specific. So far example, a requirement for British passports only would not be suitable but a requirement for any type of valid passport would be fine.
Landlord should be aware however, that there are some 12 million people in the UK with no passport. To have the broadest possible options, landlords can accept a wide range of different documents from tenants.
For further information please look at the Home Office right to rent code of practice.
Recent Comments