UK: Private Rental Sector: Right To Rent Checks And Locking Up Landlords

Last Updated: 30 November 2015
Article by Anna Ralston

Summary and implications

With the crisis at Calais and the loss of life in the Mediterranean hitting the headlines almost daily, immigration is a hot political topic. But so is housing. Few other topics feature so frequently on the political agenda. With the government having just tabled the Immigration Bill 2015 and the English Housing Survey having identified that there have never been more private renters in England, the inter-relation between these two politically charged areas is set to intensify.

What's the current position?

  • Landlords in the West Midlands already have the obligation to undertake "right to rent" checks on prospective tenants (for the detail of what is required – see below).This was part of the pilot scheme which commenced on 1 December 2014.
  • Recently the government announced that, from 1 February 2016, all private landlords in England will have to undertake the right to rent checks.
  • The Joint Council for the Welfare of Immigrants (JCWI) recently published its review of the pilot and concluded (among other findings) that:
    • the checks were not being uniformly undertaken in the pilot areas;
    • landlords are confused by their obligations;
    • the checks have the potential to increase discrimination; and
    • the checks are not an effective tool to deter "irregular migration" (not least because the Home Office only served two enforcement notices during the pilot scheme).

What are landlords/agents expected to do?

For landlords currently in the West Midlands (or for those wanting to get the necessary procedures in place ahead of the anticipated national roll-out): what needs to be done?

  • Establish a "right to rent" within 28 days before the tenancy agreement is entered into by confirming that the proposed tenant and all other adult occupiers:
    • are either a British, EEA or Swiss national; or
    • have a "right to rent" – i.e. that the occupiers' immigration statuses are such that they have a right to live in the UK (for the moment at least).

The legislation contains a list of documents that the landlord/agent can accept as proving the prospective occupiers' nationality or immigration status (e.g. passport or national identity card, a permanent residence card or a certificate of registration or naturalisation as a British citizen). The landlord/agent will have to see the original document in the presence of the occupier and copy or record the contents of the documents together with noting the date on which the check was carried out.

Such records should be kept for the duration of the tenancy and for at least one year afterwards. Landlords and agents must look after this information in a way that complies with the Data Protection Act 1998: the documents must be kept securely and for no longer than is necessary. A landlord/agent cannot insist on keeping any original documentation.

If proposed occupiers cannot produce any of the relevant documentation but maintain that they nonetheless have a right to rent, then the landlord (or agent) can seek a "Positive Right to Rent Notice" from the Landlord Checking Service on the Home Office's website.

  • Carry out follow-up checks to ensure that a right to rent continues:
    • If the occupier has a time-limited right to rent (for example, their visa is for a limited period), then the landlord must take steps to check the updated status of the occupier by the later of:
      • 12 months after the original check was undertaken; or
      • before the relevant deadline expires.
    • If any of the occupiers change (either by way of assignment, surrender or variation to allow different people into occupation), the landlord/agent must ensure that the relevant immigration checks are carried out.

What are the current penalties?

There is a potential civil liability of up to £3,000 for allowing a person to occupy who does not have a right to rent. Landlords may object to the civil penalty notice in writing within 28 days of the date of the notice, or they will lose their right to object.

See below for how the penalties may be expanded under the new Immigration Bill.

What if an occupier no longer has a right to rent?

If it becomes clear that an occupier no longer has a right to rent, a landlord or agent will have to notify the Home Office in order to protect itself against incurring the civil penalty. Currently (but this may change)a landlord is not obliged to take steps to obtain possession of his property from a person who does not have a right to rent.

See below for how this position may change under the new Immigration Bill.

Don't discriminate

The Home Office provides a separate code of practice that gives guidance on how to carry out checks in a manner which is not discriminatory.

In essence, a landlord should ensure that it uniformly and consistently undertakes checks for all adults, so as to demonstrate that no assumptions have been made about a person's background.

Any person who believes they have been the victim of either direct or indirect discrimination may bring court proceedings under the Equality Act 2010 against the landlord, and the consequences can be severe.

The question that flows from this is whether a "spurned tenant" having this ability actually provides an effective deterrent against a landlord behaving in a manner which is discriminatory (for example, by favouring prospective tenants who can immediately produce a British passport or some other identification/immigration document which is easy for a landlord to understand and "verify").

And that's assuming that the "spurned tenant" is ever told why they were not accepted - which seems unlikely, given that landlords do not have an obligation to give reasons for why they choose one tenant over another. This would seem to increase the likelihood of there being discrimination which is hard to "police against".

Then looking at it from a landlord's perspective. Whilst undertaking the checks in a uniform manner in respect of all adults should be sufficient protection, it is also easy to see that a potentially aggrieved tenant may be motivated to bring a claim. Even if such claims are successfully defended against, it would still be an unwelcome and potentially costly aggravation with negative PR consequences.

What's on the horizon: locking up landlords?

The Immigration Bill 2015 includes two potentially significant changes in this area.

  • The first is to include a criminal penalty of up to five years in prison for landlords who have breached the legislation.

Even if reserved for repeat offenders, the existence of such a draconian consequence is already proving controversial amongst commentators (and that is before the bill is debated in detail and anyone knows which of these changes may actually be enshrined in law).

  • The second is an ability to evict residential tenants who no longer have a right to rent without a court order.

This would be a dramatic change in an area where the fact that landlords must have a court order before forcing someone to leave their home is seen as a key safeguard for residential tenants. If the Immigration Bill as currently drafted becomes law, then that key safeguard appears to be replaced by a notice from the Secretary of State to the landlord saying that an occupier does not have a right to rent. This then entitles the landlord to serve a notice on the occupier requiring them to leave within 28 days.

The specifics of the potential legislation aside, what is clear is that an already politically charged area looks set to continue that way. Key practical issues will need to be ironed out, such as:

  • What would happen if only one of the tenants no longer had a right to rent?
  • If landlords are forced to evict people who are otherwise good tenants, who pays for that?
  • How will evicted tenants get their money back for rent paid in advance but which relates to the period after the eviction?
  • What happens if the Secretary of State serves an incorrect notice?

And fundamental policy questions will also have to be addressed, such as:

  • To what extent should it be a landlord's responsibility (and therefore risk) to effectively participate in border control?
  • In any event, will these new provisions actually be effective in reducing the number of people living in the UK without a legal right to do so? The initial research from the JCWI certainly does not suggest they will.
  • Despite efforts to the contrary (and potential penalties), does the legislation effectively encourage discrimination against people who are not "obviously British" (whatever that may mean)?
  • Andagainst the backdrop ofthe expandingprivate rented sector and a drive to encourage new housing stock, is the ever-increasing regulation of landlords something that is to be welcomed or discouraged?

In the meantime and as the Immigration Bill passes through Parliament, landlords, agents, tenants and commentators will watch with interest. From practical, ethical and societal standpoints, the Immigration Bill and right to rent checks raise a lot of questions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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