The Immigration Act 2014 and checking a tenant’s right to rent

A pilot for introducing checking a tenant’s right to rent under the immigration act 2014 is being introduced in 5 areas as of 1st December. These pilot areas are Birmingham, Walsall, Sandwell, Dudley and Wolverhampton.

Full roll out across the country is expected after a Government review of the pilot within 6 months.

Under the Act tenants will fall into three broad categories depending on their immigration status and it will need to be determine if a tenant has:

• An Unlimited right to rent
• A time limited right to rent
• No right to rent

Full information can be found on the Government site https://www.gov.uk/government/publications/right-to-rent-landlords-code-of-practice

The Basic Government guidance is below:

In the majority of cases, you will only have to check a person’s documents once before allowing them to live in your property (initial right to rent checks), as they will be British, EEA or Swiss nationals, or non-EEA nationals with the right to be in the UK indefinitely.

In some cases, initial checks will show that a person has the right to be in the UK for a limited time. In these cases, you can let to that person but should also make a follow-up check later. If the follow-up check shows that the person no longer has the right to be in the UK, you should make a report to the Home Office.

1. Initial right to rent checks

You should check any adult’s original document(s) before allowing them to live in your property. You should make a paper copy or electronic record of the document and store it securely for the duration of the tenancy and for twelve months after the tenancy ends. The copies should then be securely disposed of.

Find out who will live in your property as their only or main home. You should make reasonable enquiries to find out who will live in your property as their only or main home, and keep a record of the questions you ask. You must check all adults who will live in your property, whether or not they are named on the tenancy agreement.

If you do not take action to find out who will live in your property then you may be held liable for penalties in respect of any other adult occupiers irrespective of whether or not they are named on the tenancy agreement and even if rent is only collected from the named tenant.

If you make reasonable enquiries as to who will live in your property, and a person living in that property later moves someone in without your knowledge, that person will become the landlord for the purposes of the Scheme and will have responsibility for making the checks.

What are Reasonable enquiries about who will live in your property

It is reasonable to ask a person before they begin to live in your property who will share the property with them, and to keep a record of what was said, especially with larger properties where the amount of space being let is sufficient for multiple occupiers.

Questions you may want to ask will depend on the specific situation involved. In some circumstances, limited enquiries may be needed. For example, if you are letting a single room within your home or a studio apartment, and a person tells you they will be living alone, no further enquiries may be required.

In other cases, you may want to ask more detailed questions to ensure that only the adults named by a person will share the property. Factors you may want to consider include, but are not limited to, whether the reported number of people is proportionate to the size and type of your property.

The checking process:

You need to take reasonable steps to verify a document:

Once you have obtained the original document, you should check in the presence of the holder (in person or via live video link) that the document is genuine and the person presenting it is the rightful holder.

You are not expected to be an immigration expert or to have a detailed knowledge of immigration documents. The standard of checks required is that a reasonable person would not have cause to suspect that the document was false or misrepresented the person’s true status.

An individual, who is untrained in the identification of false documents, examining it carefully but briefly, and without the use of technological aids, should not reasonably be expected to realise that the document in question is not genuine.

Keep Copies:
You should retain a paper copy or electronic record of the document. All copies should be legible, and it should be possible to clearly see any dates, personal details and photographs on the copy.
If a person presents you with a document showing they have a time-limited right to be in the UK. You should record the date of expiry of their right to be in the UK, and will need to conduct a follow-up check either just before the right expires, or after 12 months, whichever is later.

Complying with the Data Protection Act

Landlords, as persons using personal data for business purposes, have responsibilities under the Data Protection Act. These include requirements to:

• Keep information secure (for example, using locked storage cabinets for paper files, electronic security measures such as password protection for electronic files, and using encryption for portable storage devices).
• Keep the minimum amount of information necessary to fulfil the obligations set by the scheme and not use that information for other, unrelated purposes.
• Ensure any third party access to the stored personal information is justified.
• Allow tenants access to the information held about them if they make a written request under the Data Protection Act.
• Register with the Information Commissioner’s Office annually, unless exempt from doing so.

NB from Neil (An individual Landlord is unlikely to process information on a computer automatically so should not need to be registered, however a letting agent will need to)

Making a report to the Home Office

If the follow-up checks indicate that an occupier no longer has the right to rent in the UK, the landlord does not need to evict them, but should make a report to the Home Office, using link www.gov.uk/report-immigration-crime

The landlord must make the report as soon as reasonably practicable after discovering that the occupier no longer has a right to rent, and before their existing time-limited statutory excuse expires, in order to renew their statutory excuse which will last for as long as the illegal renter continues to occupy the premises. The original statutory excuse will expire one year after the initial checks were made, or when the occupier’s evidence of their right to be in the UK expires, whichever is longer.

This report must be made in writing, and must contain all of the following:

• The full name of the occupier believed to have no right to rent
• The address of the premises they are occupying
• The name and contact address of the landlord
• Where relevant, the name and contact address of the agent
• The date on which the occupier first took up occupation
• Copies of the documents kept by the landlord when undertaking the initial right to rent checks in respect of the occupier.

Landlords must ensure they keep a copy of the report, noting specifically the time and date it was sent to the Home Office.

What is the implication of not carrying out valid checks?

The Home office will consider various options when determining the civil penalty amount. This will be dependent on the nature of breach and number of breaches.

If the breach relates to Category A (lodgers in a private household) the fine could be between £80 for a first breach and £500 for subsequent breaches.

If the breach relates to Category B (Occupiers in rented accommodation) the fine could be between £1000 for a first breach and £3000 for subsequent breaches.

Group 1 – Acceptable single documents
1. A passport (current or expired) showing that the holder is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.

2. A passport or national identity card (current or expired) showing that the holder is a national of the European Economic Area or Switzerland.

3. A registration certificate or document (current or expired) certifying or indicating permanent residence issued by the Home Office, to a national of a European Union, European Economic Area country or Switzerland.

4. A permanent residence card, indefinite leave to remain, indefinite leave to enter or no time limit card issued by the Home Office (current or expired), to a non-EEA national who is a family member of an EEA or Swiss national.

5. A biometric immigration document issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK. The document must be valid (not expired) at the time the right to rent check is made.

6. A passport or other travel document (current or expired) endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK.

7. A current immigration status document containing a photograph issued by the Home Office to the holder with an endorsement indicating that the named person is permitted to stay indefinitely in the UK or has no time limit on their stay in the UK. The document must be valid (not expired) at the time the right to rent check is made.

8. A certificate of registration or naturalisation as a British citizen.

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