A person's right to rent

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Many landlords and managing agents may be unaware of the changes coming into force in England as of 1 February 2016 which introduces a "Right to Rent" scheme. This requires them to check the immigration status of all proposed occupants over the age of 18 (whether named as a tenant or not) where a tenancy starts on or after 1 February 2016 to ensure that they have the Right to Rent the property in question.

They could be forgiven for expecting some respite from the increasing administrative burden imposed by the legislation governing the relationship of residential landlords and tenants.

Renting to a person without the Right to Rent is an offence and a failure to carry out the relevant Right to Rent checks carries a penalty of a fine of up to £3,000 per illegal migrant person and so it is important that the relevant checks are carried out before the tenancy begins. In certain circumstances a managing agent will also commit an offence where it fails to comply with certain Right to Rent checks.

Which checks are to be carried out?

As of 1 February 2016 within 28 days prior to the start of a new tenancy, a landlord (or managing agent if the responsibility has been delegated) will need to:

  • Check the identity of all of the adults who will live at the property as their only or main home;
  • See the original documents showing the person has the right to remain in the UK and check that they are genuine and belong to each person occupying the property. This should include checking the date of birth, checking the photographs on the documents against the persons themselves and verifying the status of any named individuals in the documents. The check will need to be carried out in the presence of each of the adults.
  • To assist landlords/managing agents understand which documents will create a defence, the legislation provides two lists of documents. List A deals with documents which evidence the Right to Rent indefinitely (such as an UK or EEA passport). List B contains documents which evidence the Right to Rent for a limited time period (such as visa/permits) and a landlord/managing agent will need to obtain two documents from this list.  Where there is any doubt as to the legitimacy of the documents provided, the landlord/managing agent is required to make reasonable enquiries to verify the documents. Only if a person is unable to provide acceptable documents to prove their Right to Rent, the landlord/managing agent may request that the Home Office carry out the Right to Rent check by contacting the helpline on 0300 069 9799; and
  • Take a copy of the immigration documents and keep a written record of the date that the check was carried out.

Ongoing obligation to check a person's 'right to rent'

If the right of the tenant/adult to stay in the UK is time limited, the landlord/managing agent is required to carry out further checks at the expiry of the tenant's right to stay in the UK or 12 months after the first check is carried out. Therefore, if a tenancy agreement is for a term longer than the Right to Rent documentation, the landlord/ managing agent should diarise to follow up to check the Right to Rent shortly before the expiry date. If the person advises that they have made an application to extend their stay and they are awaiting the outcome, the landlord/managing agent can make enquiries at the Home Office so that it can carry out the Right to Rent check on their behalf. Landlords may be reluctant to grant tenancies beyond the expiry date due to the extra administrative burden.

If a landlord becomes aware that a person no longer has the Right to Rent, the landlord/managing agent should make a report to the Home Office as soon as reasonably practicable after discovering that the person no longer has the Right to Rent as set out below.

The offences

  • The landlord commits an offence where a tenant does not have the Right to Rent and there will be no defence if the landlord failed to carry out the relevant checks and/or it knows or has reasonable grounds to believe the premises is being occupied by an adult disqualified from renting because of their immigration status.
  • A landlord also commits an offence where it is aware or has reasonable grounds to believe that the person's permission to remain in the UK expires during the term of the tenancy and it fails to notify the Home Office as soon as practicable to confirm the identity of the adult and advise that they are disqualified from occupying the property under the tenancy agreement.
  • Where the responsibility to carry out the Right to Rent checks is delegated to the managing agent and it fails to comply with the obligations as set out above, the managing agent will have committed the offence and will be subject to the same penalties as the landlord where it fails to notify the landlord that a person is disqualified from occupying the property within a reasonable time frame and without delay.

Where the landlord/managing agent commits an offence, and there is no defence, it will receive a penalty notice requiring it to make payment of a fine of up to £3,000.00 per illegal occupant. The notice may also require the landlord/managing agent to carry out the Right to Rent checks.

Avoiding a penalty when a landlord or managing agent becomes aware that a person no longer complies with a 'right to rent'

A landlord/managing agent will be excused from any penalty if it can demonstrate that:

  • it has taken out the relevant checks to confirm a person's Right to Rent;
  • it was not aware that a person who doesn't have the Right to Rent has been occupying the property; or
  • on becoming aware that a person does not have the Right to Rent it has notified the Home Office without delay.

Practically this may be difficult when a property is unlawfully sublet.

Obtaining possession of the property when a person is disqualified

A welcome change as a result of the Immigration Act is that if a landlord discovers that a person no longer has the Right to Rent, a landlord will be able to rely on that to obtain possession of their property. If one adult occupant no longer has such a right then this will mean that all occupants will have to leave the property.

A landlord will need to advise the Home Office that the tenant is disqualified from occupying the property under the tenancy agreement. The Home Office will then issue a notice which will then allow the landlord to serve written notice of not less than 28 days on that person to obtain possession. The notice can be relied on as a notice to obtain possession and can be treated as though it were an order of the High Court and enforced without taking court proceedings.

A landlord will also be able to rely on the immigration status of the persons to obtain possession by serving a section 8 notice pursuant to the Housing Act 1988.

Act now

To avoid the risk of a fine, it is important that landlords/managing agents carry out the Right to Rent checks before the grant of every tenancy and continue to check the Right to Rent where the relevant immigration documents are time limited. Where a landlord/managing agent becomes aware that the Right to Rent has ceased or is not valid, it should notify the Home Office without delay to obtain the relevant notice to evict the person.

It remains to be seen how quickly the Home Office will respond to such requests and what resource the Government will provide. Given that this new legislation requires landlords to operate as unofficial immigration officers it is to be hoped that the required resources will be available.

Blake Morgan's immigration team is able to advise on Right to Rent issues. The team has a wealth of experience in advising employers, under a similar Civil Penalties scheme.