Following a pilot scheme run in the West Midlands from 2014 which launched measures under the Immigration Act 2014 (the Act) the new law now applies to all private landlords across England granting tenancies on or after 1 February 2016.

Purpose of the Act

The Act aims to tackle illegal immigration in privately rented accommodation through compulsory document checks on an occupier's identity and immigration status by landlords or agents. A contravention of the regulations without one of the statutory excuses may result in a civil penalty.

Landlords and agents need to be aware of the nature of a residential tenancy agreement as defined in the Act. It is an agreement that grants a right to occupation of premises for residential use as a main or principal home and includes an agreement to enter into a tenancy. A "tenancy" includes sub-tenancies, licences and leases for a term of less than seven years.

Those tenancies which will not be caught by the new provisions include, among others: care homes; student accommodation; mobile homes; and social housing where occupiers are nominated by local authorities or through other arrangements.

A person disqualified by their immigration status is a person who is not:

  • a relevant national, i.e., is not a British citizen;
  • a national of an EEA State; and
  • a national of Switzerland.

A person may have a time limited right to rent if they have been granted leave to enter or remain in the UK for a limited period.

How to avoid falling foul of the new regulations

To avoid contravention of the regulations a landlord or agent must carry out pre-grant checks on all adult occupants by obtaining the prescribed documents. Where an occupier has a time limited right to rent follow up checks must be undertaken before the time limited right expires or once 12 months has passed. If the occupiers are unable to re-establish the right to remain the landlord must make a report to the Home Office.

Where there has been a contravention the landlord or agent may receive a penalty notice from the Secretary of State carrying a fine of up to £3,000.00 for each adult occupier who is a disqualified person.

Landlords and agents can avoid a penalty by establishing that they carried out the necessary checks and notified the Home Office where applicable.

Landlords and agents need to remember that:

  • the regulations apply to all adult occupants of the premises and accordingly checks need to be carried out on all;
  • A landlord can shift the burden of checks to an agent only where there is an agreement in writing and the agent is acting in the course of a business;
  • Refusing to let to a person on the grounds of colour, ethnic or national origins to avoid the pre-grant checks will be directly discriminating on the grounds of race and may be unlawful.

Landlords and agent can obtain guidance on understanding their obligations and duties from the Home Office.

Looking ahead

In a further move, the recently passed Immigration Act 2016 proposes controversial measures to criminalise landlords and agents for failing to carry out rent checks and to take steps to remove illegal migrants from their property. The Act also sees a considerable expansion of official powers to deal with illegal immigration. The government's message is clear: if migrants are here illegally, they will not be entitled to the same benefits and services as those who are not.

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.