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
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
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
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
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.
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.
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