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Right to Rent Checks

The 1st February 2016 is nearly upon us.  The requirement to undertake “right to rent” checks becomes mandatory throughout England for all tenancies starting on or after this date.

For those in the West Midlands pilot zone apologies, you will all be very familiar with the processes and what is required. For everyone else this is yet more legislation you need to understand and ensure compliance with if involved in letting property.

Essentially the principle legislation is the Immigration Act 2014. There is currently a further Immigration Bill before parliament which may change certain aspects, including making a failure to comply a criminal offence.  The Home Office is continuing to issue Guidance and it is expected that over the coming months further Guidance and tweaks to the existing Guidance will be issued.

The basic principle is that a landlord may not allow an adult to occupy a property under a residential tenancy agreement unless they satisfy one of three criteria:

  • The adult is a British Citizen; or
  • They are an EEA or Swiss National; or
  • They have a right to rent in the UK.

Of particular note is that this does not just apply to the named tenants but any known occupiers of the Property. You must therefore ask if there is intended to be any additional occupiers.

If the tenant should sub-let, whether lawfully or unlawfully, they will become the responsible person for undertaking these checks. Also if the tenancy is a company let for the company’s employees the onus will be on the company to check however their remains uncertainty about other occupiers such as family members and many agents will wish to satisfy themselves that they have a right to rent, at least initially, until further clarity.

This means for all tenancies you need to think who actually will be occupying. You are required to check the right to rent in the 28 days prior to the start of the tenancy.

To check whether someone has the appropriate right to rent you need to see the appropriate documents. The types of documents you can accept are set out in two lists.  Group 1 (sometimes referred to as the Safe List) and Group 2 (Semi-safe list).  Essentially Group 1 are passports and Visas which will be the norm although it is believed over one million British Citizens do not have a valid passport.

You must physically see the original of these documents with the person in front of you (there is a provision for you to have the originals with the person on video link but this is unlikely to be widely used). You must check the document to be satisfied that it is not an obvious forgery, you are not expected to be a document expert but should be satisfied as to the authenticity of the documents presented.  You should then take and keep copies.  These copies should be kept for one year after the end of the tenancy.   You should ensure you record how and when the copies were taken and by whom.

If the person has a time limited right to be in the UK (e.g. a time limited visa) provided they have even one day beyond the start of the tenancy left on that document they will have a right to rent for 12 months. However you 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. Given therefore such checks must be done within 28 days before hand this means in month 11 or the month before the right expires and you should ensure you have systems in place for recording when follow up checks are required.

Whilst prior to the start of the tenancy if someone cannot establish the right to rent you have no obligation to report them to the Home Office on a follow up check if the documents are not provided (again face to face) or the right is established you will have to report this to the Home Office.

There is a provision within the Immigration Bill that in the case of a follow up check failure the Home Office may be able to issue an Order allowing you to evict the tenant. We need to wait and see exactly what the provisions are when passed and any accompanying regulations to see how this will work in practice.

For those who have not got documents, possibly because of an application or appeal which is pending, you can contact the Home Office Landlord Checking Service either online or via the telephone enquiry line. You will then receive within 2 working days a response confirming whether or not this person has a right to rent. This response will have its own unique reference number and will contain details as to when follow up checks are required and should again be kept.  The Home Office makes clear this is not however an advice service.

It is important to note that you must not apply the checks in a discriminatory way. This means that you must not offer someone less favourable terms (e.g. as to length of term) simply based upon the right to rent check.

In terms of enforcement it will be the Home Office who will enforce probably following on from intelligence they have gained. You will then have 28 days to object and if appropriate provide evidence of compliance.  Thereafter the Home Office can issue a civil penalty which must be paid within 28 days (if paid within 21 days the penalty will be 30% lower) or may be appealed to the county court. For a first offence the penalty is £1,000 per occupier and for subsequent penalties £3,000 per occupier.

This article is only intended to be a brief overview of the new rules. It is important that you familiarise yourself with the Home Office Guidance if you are doing these checks and keep an eye out for updates.

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