A Guide to Right to Rent Checks for Landlords
Section 22 of the Immigration Act 2014 makes landlords liable for a civil penalty if they authorise an adult who is not lawfully present in the UK (and who has not been given the permission to rent), to occupy property as their only or main home under a residential tenancy agreement (defined as any tenancy, lease, licence, sub-lease or sub-tenancy which grants a right of occupation for residential use, provides for the payment of rent and is not an excluded agreement).
As stated in the Code of Practice on illegal immigrations and private rented accommodation ‘Civil penalty scheme for landlords and their agents’ (October 2014), the intention of the restriction upon access to private sector rented accommodation and the civil penalty provisions “is to ensure that illegal immigrants are unable to establish settled life in the UK”.
Some types of property and residential tenancy agreements are excluded from the scheme:
- Accommodation involving local authorities;
- Social housing;
- Care homes, hospitals and hospices and continuing healthcare provision;
- Hostels and refuges;
- Mobile homes;
- Tied accommodation;
- Student accommodation;
- Long leases (7 years + without break clause).
Landlords are allowed to agree with an agent in writing as to who is responsible and so liable for any penalty. The agent can then establish an excuse against a penalty by undertaking right to rent checks before the tenancy agreement is entered into (or before occupation if not possible), reporting the outcome to the landlord in a reasonable time and where necessary, reporting to the Home Office. The time-scales should be set out in the written agreement. If the agent establishes that a person does not have a right to rent and reports the matter to the landlord in writing, the landlord will be liable to a penalty if a residential tenancy agreement is granted to a person without a right to rent. Any occupier who sub-lets all or part of their accommodation to a person for money will be a landlord and may be liable to a civil penalty if they do not undertake sufficient checks and allow occupation by a person who needs and does not have a right to rent. But again, if they agree (in writing) with their landlord to accept responsibility for conducting right to rent checks and any liability to a penalty, the ‘superior landlord’ will be treated as though they have authorised the occupation by the sub-tenants and will be the responsible landlord.
There are 3 steps in establishing and maintaining a statutory excuse against liability for a civil penalty:
1. Conduct initial right to rent checks before authorising an adult to occupy rented accommodation:
i. establish the adults who will live in the property as their only or main home;
ii. obtain original versions of one or more acceptable documents;
iii. check the documents in the presence of the holder;
iv. make copies and retain them (securely for at least one year after the end of the tenancy) with a record of the date on which the check is made;
2. Conduct follow-up checks at the appropriate date if initial checks indicate that an occupier has time-limited right to rent (conducted within 28 days prior to the expiry of that period). If the occupier claims their documents are with the Home Office the landlord must request a right to rent check from the Landlords Checking Service);
3. Make a report to the Home Office if follow-up checks indicate that an occupier no longer has the right to rent.
A separate anti-discrimination Code of Practice (October 2014) gives further advice on how to operate checking processes that are non-discriminatory and in accordance with statutory equalities duties. Landlords should apply checks to all occupiers, whether or not they may already believe the occupiers to be legally within the UK.
If a landlord is found renting to a person who has no right to rent, the landlord or property owner may be issued with a referral notice informing them that consideration will be given to liability for a civil penalty. An information request will allow an opportunity to present further information and evidence to inform the decision on liability and, if appropriate, the level of penalty. If found liable, a civil penalty notice will be issued and the recipient may object within 28 days. An objection outcome notice will be given within 28 days with a right of appeal to the Courts within 28 days.
A penalty may be imposed in relation to each person who requires a right to rent but does not have one, who is found to have been authorised to occupy the premises under a residential tenancy agreement. Where the landlord has not previously been found in breach in the past 3 years, the penalty amount is £1,000 for occupiers in rented accommodation (£80 for lodgers in a private household). There is a fast payment option that gives a landlord the opportunity to pay a 30% lower amount if payment is received in full within 21 days of the civil penalty notice but only for landlords in receipt of their first penalty.
The Immigration Bill 2015 looks to append to the Immigration Act 2014, a section 33D ‘Termination of agreement where all occupiers disqualified’, which states that a landlord may terminate an agreement when the Secretary of State has given one or more notices in writing to the landlord identifying a single or multiple occupiers of a premises under a residential tenancy agreement. A landlord would then be able to issue a termination notice (no sooner than 28 days thereafter) which is to be treated as an enforceable notice to quit where required. A further section 33E ‘Other procedures for ending agreement’ grants landlords the implied right to terminate the tenancy if occupied by an adult disqualified as a result of their immigration status from occupying the premises under a residential tenancy agreement.
