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

by Property 118

4 years ago

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

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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.The Immigration act 2014

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:

checking

 

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.

Group 2 – Acceptable document combinations.
1. Any two of the following documents when produced in any combination:
a) A full birth or adoption certificate issued in the UK, the Channel Islands, the Isle of Man or Ireland, which includes the name(s) of at least one of the holder’s parents or adoptive parents.
b) A letter issued within the last 3 months confirming the holder’s name, issued by a UK government department or local authority and signed by a named official (giving their name and professional address), or signed by a British passport holder (giving their name, address and passport number), or issued by a person who employs the holder (giving their name and company address) confirming the holder’s status as an employee.
c) A letter from a UK police force confirming the holder is a victim of crime and personal documents have been stolen, stating the crime reference number, issued within the last 3 months.
d) Evidence (identity card, document of confirmation issued by one of HM forces, confirmation letter issued by the Secretary of State) of the holder’s previous or current service in any of HM’s UK armed forces.
e) A letter from HM Prison Service, the Scottish Prison Service or the Northern Ireland Prison Service confirming the holder’s name, date of birth, and that they have been released from custody of that service in the past 6 months; or a letter from an officer of the National Offender Management Service in England and Wales, an officer of a local authority in Scotland or an officer of the Probation Board for Northern Ireland confirming that the holder is the subject of an order
requiring supervision by that officer.
f) Letter from a UK further or higher education institution confirming the holder’s
acceptance on a current course of studies.
g)A current full or provisional UK driving licence (both the photocard and paper counterpart must be shown).
h) A current UK firearm or shotgun certificate. i) Disclosure and Barring Service certificate issued within the last 3 months.
j) Benefits paperwork issued by HMRC, Local Authority or a Job Centre Plus, on behalf of the Department for Work and Pensions or the Northern Ireland Department for Social Development, within the 3 months prior to commencement


Comments

D Kempson-Gray

4 years ago

Really usefull and helpful article. Thanks.

Ian Ringrose

4 years ago

http://www.landlordreferencing.co.uk claims to now check a tenants "right to rent" as part of there services, I expect that a lot of other companies will start doing the same.

Sian Wyatt

4 years ago

Hi
Just to clarify - this will only apply to new tenancies and we don't have to check existing tenants retrospectively?

Edna

Neil Patterson

4 years ago

Hi Edna, I have found this section copied below:

Which residential tenancy agreements fall within the
scope of the Scheme?

The Scheme applies only to residential tenancy agreements first entered into on or after the date on which the Scheme is implemented in the area where the property is located.

A landlord is not required to take any action in relation to residential tenancy agreements entered into before that date, or which are renewed after that date if the renewed agreement will be between the same parties and there has been no break in the tenant’s right to occupy the premises.

Sian Wyatt

4 years ago

Reply to the comment left by "Neil Patterson" at "26/11/2014 - 10:04":

Thank you Neil - don't have to bother my existing Hungarians/canadians/poles etc then!

Neil Patterson

4 years ago

Reply to the comment left by "Edna " at "26/11/2014 - 15:29":

No problem Edna, but you would need proof of right to rent for the Canadians eventually lol

4 years ago

I agree that Reasonable enquiries about who will live in a rented property is must but this pilot scheme Introducing checking a tenant's right to rent under the immigration act 2014.... is a mess. These are two different things that should left separate. Immigration act 2014 is already a mess....The Police, Immigration officials and employers are still struggling to understand it - Check it here http://www.legislation.gov.uk/ukpga/2014/22/contents/enacted

It'll only be a matter of time before we start seeing articles in the press about cases where landlords and even agents mix things up. Its all complicated and sounds like giving IMMIGRATION officer duties & powers to Landlords and Agents. Tenancy checks are already a standard procedure anyway, why re-introduce the process under the immigration act 2014 and further complicate things? I am a British Citizen by the way.

The whole Immigration Act 2014 and checking a tenant’s right to rent has a political ( immigration ) undertone. What the law makers in the UK need to do is:
1. Decide whether they still want to remain in the EU or not
2. BUILD more houses ( not the 1 & 2 bed luxury flats, but 2-3 bed houses )
3. Build more social housing

Power will be abused and soon we'll start hearing cases where inexperienced landlords and agents obtain copies of tenants passport/data and discriminate against genuine would-be tenants. Its another waste of tax payers money if anything and it'll further drive rents up ( good for the BTL landlord i suppose ).

I quote from the article above:

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. -

Why saddle landlords with immigration officer responsibilities? Many people in the UK are on Visas and Permits and they need houses to live in, will it now become my responsibility as a landlord to call the Home Office and report that my tenant's visa is about to expire? If i don't call the home office will i be punished or penalised? What if my tenant's passport was recently sent off for visa renewal and it's taking longer that expected to be re-issued?
Guys, do you now see how complicated and chaotic this whole new tenant immigration checking things is going to be?

What they need to do is get a grip of what they are doing at the home office, the place is a mess and the processes are not yet matured enough to introduce other complex matters like checking a tenant's right to rent. The Home Office is passing the buck with this new scheme...nothing more. What about data protection and privacy of individuals? How educated and trust worthy is the Landlord or agent who'll have access and update to my personal data/Info?

Tenancy checking should be done by qualified agents only, as a landlord if you're renting directly to a tenant its up to you to make sense of the ID obtained from the tenant. This is more sad news for the poor renter in The UK. The only way property prices in the UK can go is UP....its sad.

roseann green

3 years ago

I have a question.
I have a tenant who has been living for over a year in one of my properties before this act was passed
He is not EU but i have a copy of his Border agency card which shows he has right to work until 2017. He has a good job with a large company.

He wants to rent one of my larger properties because his wife and small baby are joining him. He has showed me her passport with UK border two tier entry clearance and it stated no dependents and was issued last year . She now has a baby. I have no national insurance number for her because she is due to enter the country soon. Should this baby be on the visa ? I have been looking for a Border agency number to phone

Property Buyer

3 years ago

I am new to the letting world and only just starting up.

I will be going through agents to Let out my property but after that I will be managing them.

So, obviously the agents do all these checks of I.D and nationality etc. but what I am wondering is what happens after that?

As a landlord do I also need copy of my tenants documentation and I.D?

Or do I just rely on my agents and trust they have done their job correctly?

Can it turn back on me if the agent is no longer involved with managing the tenancy?

Any help would be great


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