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“Right to rent” – immigration checks on tenants

Print publication

15/10/2014

From October 2014, landlords of residential properties, or with a residential element in a mixed tenancy, will be required to make sure that the tenant has a “right to rent” as defined in the Immigration Act 2014 (the Act). A landlord could be fined up to £3,000 if they do not carry out the requisite visa and identity checks on the tenant, together with checks on those who are to actually occupy the property.

The following individuals have a right to rent a property in the UK:

  • British citizens
  • nationals of European Economic Area states
  • Swiss nationals
  • individuals with ‘leave’ to enter and remain in the UK (provided the leave does not expressly prohibit renting UK property).

Most types of residential tenancies are included, although student accommodation and long leases over seven years are excluded.

As mentioned, the checks are not just limited to the tenant, but also to their adult family members and any other adult who is intended to occupy the property. The landlord must not authorise an adult to occupy the premises if “the adult is disqualified as a result of their immigration status”. It is a continuing obligation, meaning that the landlord would fall into breach of the Act if he grants a tenancy to an individual who later loses his right to rent (or occupy) owing to his immigration status.

Negligence

A landlord must be negligent to be in breach of the Act. As long as a landlord can show that reasonable enquiries were made about the tenant and the other adult occupants and that they acted reasonably on the results, a breach of the Act should not arise. It is not sufficient, however, to include a term within the tenancy agreement prohibiting occupancy by those without the correct immigration status. In addition, the landlord’s managing agent would only be liable for the landlord’s breach of the Act if it is contained within the management agreement that the agent is responsible for the initial and continuing immigration checks of the tenant and occupants.

Implementation

The Act’s requirements come into force in October 2014 and apply to qualifying tenancies made after that date. It is not retrospective and does not apply to tenancies in existence before that date. On 3 September the Immigration and Security Minister announced that these new measures would be first launched in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton as part of a phased introduction across the country. Following an evaluation of the West Midlands implementation in spring 2015, the Home Office expects to continue with the phased introduction of checks across the UK throughout 2015.

To aid implementation, there will be a code of practice published, the draft of which can be found here.

The Home Office also intends to set up an on-line checking tool and telephone and email enquiry services.

For more advice on the right to rent and a residential landlord’s obligations in respect of a tenant and occupier’s immigration status, contact Karl Anders.

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