From 1 February 2016, new legislation requires all landlords and agents in England to check a tenant’s immigration status or ‘right to rent’ in the UK. Failure to carry out these checks could leave landlords facing civil penalties of up to £3,000.

What is the right to rent scheme?

From 1st February, all private landlords in England, including those subletting or taking in lodgers, will have to check the status of new tenants to ensure they have the right to be in the UK before renting out a property.

Many responsible landlords are already doing this as a matter of routine, but now that it’s compulsory, all landlords must familiarise themselves with the process. If they don’t comply with the legislation they could face a heavy penalty.

The checks should be carried out within the 28 day period leading up to the start of a new tenancy.

Immigration act 2014 and how it came into place

Right to rent was introduced in the Immigration Act 2014 as part of the government’s reforms to build a fairer and more effective immigration system. The law aims to deter those who are illegally residing in the UK from staying in the country.

The phased introduction of right to rent started in the West Midlands (1 December 2014 to 31 May 2015), where councils in Birmingham, Sandwell, Dudley, Walsall and Wolverhampton were used to test the scheme. This allowed time to assess how the measures would work in practice and carry out a comprehensive evaluation. The first six months of that pilot have been reviewed and the scheme was rolled out across the whole of England from February 2016.

Right to rent legislation: what’s the law for landlords?

From February 2016, landlords are expected to conduct right to rent checks every time they look to rent a property to a prospective tenant.

Under right to rent, landlords will be able to rent property to a person who has unlimited right to rent. This could be a British Citizen, someone from the European Economic Area, or a Swiss National. It would also include those who have a time-limited right to rent i.e. Non-EU citizens who have a visa.

What type of tenancies fall under the act: new or old, short, holiday, 12 months, etc.

Right to rent applies to a range of residential agreements that require payment of rent. This includes:

• tenancies
• sub-tenancies
• leases of less than 7 years
• sub-leases
• licences

When do landlords need to begin right to rent checks?

Most right to rent checks don’t need to be conducted on tenants already in a property before 1st February 2016.

However, landlords on the original pilot scheme in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton must make checks on their tenants if their tenancies started on or after 1 December 2014. This is because that is when the scheme was introduced in those areas.

The following people will be responsible for carrying out right to rent checks on tenancies agreed on or after 1st February 2016:

• a landlord letting private rented accommodation
• a landlord or occupier allowing a lodger to live in a property
• a tenant sub-letting part or all of a property (this responsibility can be passed over to the landlord providing both parties agree to this in writing)
• an agent appointed in writing by a landlord to take responsibility for complying with the right to rent scheme

What type of tenants do need to be checked?

 The scheme applies to all people over the age of 18 living at a property and using it as their only or main home. Landlords are expected to check all adults’ immigration status, including people who live in the property but aren’t named on the tenancy agreement.

What type of tenants don’t need to be checked?

 Some types of property and residential tenancy agreements are excluded from the scheme. These include:

• accommodation arranged by local authorities or relevant NHS bodies in response to statutory duty
• care homes, hospitals, hospices
• social housing
• hostels and refuges
• tied accommodation
• student accommodation
• long leases

Right to rent documents: what landlords will need from tenants

There are many different types of documents which are acceptable, including single documents, combined documents and those where a time limited statutory excuse applies.

A few examples:

• a British or EU passport or National Identity Card
• a foreign non EU passport showing the holder has indefinite leave in the UK
• a Home Office Certificate or residence permit card indicating permanent residency
• a Certificate of naturalisation

Click here to see the full list. Landlords do also have the option to appoint an agent to act on their behalf. If an agent has accepted responsibility for compliance with right to rent (in writing), the agent will be the liable party in place of the landlord.

Landlord’s tenant immigration background check: how to carry one out?

Landlords should check that the documents appear genuine and show no signs of being tampered with and that they belong to the holder. Photographs and dates of birth should be consistent across documents and match the person’s appearance.

If the document shows an expiry date of leave to remain in the UK, check this date hasn’t passed. Plus, if a document is suspected of being false or tampered with, do not proceed.

There are some tenant referencing companies starting to offer standalone enhanced ID checking services for those landlords who don’t have the facilities available or the experience to carry out right to rent checks sufficiently.

What if a tenant doesn’t have the right documents and ID?

The Home Office has set up a 'Landlords Checking Service'. Landlords are able to use this service if their prospective tenant doesn’t have any of the acceptable documents to prove that they’re in the UK lawfully.

As long as the person provides the landlord with a Home Office reference number, the Home Office will do the check and get back to the landlord within 2 working days confirming if there is a right to rent or not.

The Landlords Checking Service can be found here or call the helpline on 0300 069 9799.

What if my tenant’s right to rent has ran out?

Some permits will expire during the term of the tenancy. In those cases, the checks will need to be repeated. Landlords should make copies of the documents and keep them with their records.

If a follow-up check shows that a person no longer has the right to be in the UK, landlords should make an official report to the Home Office.

The forthcoming immigration bill proposes new measures to make it easier for landlords to evict illegal tenants. Landlords will be expected to evict illegal immigrants soon after receiving a Home Office notice that their tenant no longer has the right to rent in the UK. In some circumstances, landlords will be able to act without a court order.

A new criminal offence will also target landlords and letting agents who repeatedly fail to carry out right to rent checks or fail to remove illegal immigrants from their properties.

What are the right to rent penalties for having illegal tenants?

If an illegal immigrant is found living in a landlord’s property and sufficient checks haven’t been carried out, the landlord may be liable for a civil penalty of up to £3000. The amount will depend on whether it’s a first offence, and if the property is let to a lodger or the landlord is letting private accommodation.

If the tenant doesn’t pass a further check the landlord must tell the Home Office, and it may be necessary to evict the tenant.

Landlord Action can advise on the best course of action. For more information contact their advice team on 020 8906 3838.