PRS Update: Immigration checks required from 1 February 2016

The Home Office has announced this week that the Right to Rent Scheme currently being piloted in the West Midlands (as discussed in our previous blog post here) will be rolled out across England from 1 February 2016.

The new measures are part of a larger government scheme introduced under the Immigration Act 2014, and are intended to make it harder for illegal immigrants to live and work in the UK. Under the scheme, private landlords are required to carry out checks on the immigration status of prospective tenants.

How to carry out a check

Landlords are required to carry out checks against all adults who will be living in their property, whether or not they are named in the tenancy agreement. The scheme only applies to new tenancies (after 1 December 2014 for the West Midlands or 1 February 2016 elsewhere in England). Landlords are not required to carry out checks in relation to tenancies agreed before those dates.

Where the scheme applies, for each adult who will be living in the property, the landlord must:

• check that that person intends to live in the property as their only or main home;
• request from the person original documents confirming their entitlement to be in the UK;
• check that the relevant documents are valid and up to date;
• take and keep copies of the relevant documents; and 
• record the date on which checks are made.

What documents will be acceptable?

The Government’s guidance contains two separate lists of documents that will be considered acceptable to confirm a tenant’s entitlement to be in the UK:

• List A sets out documents which establish a permanent entitlement to reside in the UK, such as a UK or EEA passport or permanent residence card;
• List B sets out documents which establish a temporary entitlement to be in the UK, such as a passport showing a time-limited right to be in the UK, or certain immigration documents issued by the Home Office.

Where the relevant person has a temporary entitlement to reside in the UK, the landlord must carry out a follow-up check, or make a report to the Home Office, either before expiry of that temporary entitlement or 12 months after commencement of the tenancy (whichever is later).

A full list of acceptable documents to be checked can be found here.

A landlord will not usually need to contact the Home Office as part of the checking process. If, however, a tenant cannot produce the necessary List A or List B documents, but claims to have an outstanding immigration application or appeal with the Home Office, the landlord can request a Home Office Right to Rent check.

Penalties for non-compliance

Currently, a landlord will be liable to a Civil Penalty, imposing a fine of up to £3,000, if he authorises occupation of accommodation for use as an only or main home, by a person who does not have the right to rent in the UK. This is set to change, however, and future sanctions for failure to comply with the scheme will be far more serious. Criminal sanctions and prison sentences are proposed under the Immigration Bill 2015, which is currently before parliament.

In most cases, responsibility under the scheme will lie with the Landlord. Responsibility for compliance with the scheme may also be transferred in some situations, and should be recorded in writing. These include where managing agents agree to be responsible under the scheme or where a property has been sub-let and the superior landlord has agreed to conduct the right to rent checks and accept any liability for non-compliance.

Exempt agreements

Certain types of premises and residential tenancy agreements are excluded from the scheme, including leases of 7 years or more and accommodation provided by care homes, hospitals, and hospices. Other exemptions apply in relation to mobile homes, tied accommodation and accommodation involving local authorities or social housing. Student halls of residence and residential agreements where students are nominated to occupy by an educational institution will also fall within the exemptions on provision of the relevant nomination documentation.

Practical considerations

With criminal penalties being proposed for non-compliance, landlords need to ensure they are fully complying with their Right to Rent obligations. An effective compliance program should be designed around practical policies and procedures, which might include simple steps such as the following:

• keeping records of all adults living in each property – this could be incorporated into the tenancy agreement, whether or not all of those individuals are parties to the agreement;
• recording expiry dates for temporary rights of residence, with automatic prompts to renew those checks or make reports (where appropriate);
• carrying out regular audits of Right to Rent checks and documentation held;
• providing staff with clear guidance and training on how to carry out and document Right to Rent checks; and
• ensuring that policies for retention and storage of documentation and information comply with the Data Protection Act (seeking external advice if required).

Existing policies and procedures may include some or all of these measures, but in any event, policies and procedures should be reviewed and updated on a regular basis. As well as reducing regulatory risk, an effective compliance program can bring benefits when it comes to overseeing the efficient management of properties.