Tessa's Tenancy Tips: Right to Rent

In February 2016, a new burden was imposed on landlords and letting agents. They effectively became part of the immigration service checking tenants ‘right to rent’ in the UK.

As an anti-illegal immigration measure it does not seem to have been very effective. It seems that as of January 2017 (nearly a year after the measures came into force) just 31 tenants had been deported and 75 landlords fined.

At present, the right to rent checks only need be done in England although it is planned to extend the measures to the rest of the UK. This may be challenged as a crowdfunding exercise to raise money for legal fees has now reached its target.

 

What do you need to do?

So, what do these right to rent measures involve? Probably the most important thing to do is to protect your position! You are not actually employed by the Home Office and your main objective when doing these checks should be to make sure that you are compliant so you don’t get fined!

If the Home Office find illegal immigrants in your property they will contact you about it. However, if you have a ‘reasonable excuse’ you cannot be fined and will have a defence if they prosecute.

So, what is a reasonable excuse?

Mainly that you:

  1. Did a right to rent check on ALL occupiers (not just the tenants) before the start of the tenancy 
  2. The occupiers were able to produce satisfactory documentation (as required and explained in the Home Office guidance on the gov.uk website) or the government checking service confirmed you could rent to them 
  3. You were able to inspect the original document(s) in the presence of the occupier 
  4. There were no suspicious circumstances - or if there were, you questioned them about it and they gave satisfactory answers 
  5. You have retained a copy of the documents 6. You have not authorised anyone other than the occupiers you have ‘right to rent checked’ (and their underage children) to live in the property. 

Let’s take a look at these in a bit more detail:

  1. You need to check EVERYONE. The only exception is under age children - and I suggest you get proof of age of teenagers. Note that the rules do not apply just to tenancies. If you take in lodgers you also need to do these checks. There are a few circumstances where you do not need to do checks – for example where the occupiers are there under a sub-tenancy or where the property is let to a company (who will be responsible for the occupiers they allow to live there). You also do not need to do checks for certain local authority nominations. But the vast majority of tenants (and other occupiers living with them) in the private rented sector will need to be checked. 
  2. There is very detailed guidance on the gov.uk website which you should check from time to time as it does change. The guidance includes pictures of the documents you need to check so you know what they look like. The Home Office will expect you to have followed this guidance - so make sure that you do so. 
  3. The requirement to inspect the original documents is a problem for landlords who let to overseas tenants who wish to sign the tenancy agreement before moving to this country. The answer is to have a clause in your tenancy agreement making it conditional upon tenants satisfying a right to rent check before the tenancy starts. This is not much help though if some joint tenants or occupiers wish to arrive after the tenancy has started. There is no real solution to this. 
  4. Suspicious circumstances include ID photographs in the documents not looking like the person sitting before you when doing the test, and people renting a property which appears to be larger than would normally be required by the intended occupiers. Make sure you keep a note of the answers that they give to your questions. 
  5. One problem retaining the documentation raises is that if they get into the hands of fraudsters they could be used for identity theft. This is of great concern to foreign military, for example, the United States military, who have various bases in particular in East Anglia. I understand however that they have now come to a special arrangement with the Home Office – you need to check this out if you rent to military personnel. 
  6. The best way to prohibit anyone else living in the property is via your tenancy agreement. Make sure it includes a list of everyone who is authorised to live there (and who must be right to rent checked in advance). If your tenancy agreement then forbids anyone else living there you should be all right. Note that my Landlord Law tenancy agreements include these clauses.

 

What happens if you don’t do the checks?

If your occupiers are entitled to live in the UK - probably nothing. However, are you really sure about this? If you let someone in who is an illegal immigrant then, unless you can show that you did the checks, you are vulnerable to the penalty charge or fine.

This is £500 or £3,000 for subsequent offences unless you are renting to lodgers in your own home, in which case the fines will be £80/£500. If you are a persistent offender or are clearly deliberately flouting the rules you can also be prosecuted and if convicted, fined or imprisoned. For genuine mistakes, however, a civil penalty is more likely.

Note by the way that another reason why you need to do the checks for everyone is because otherwise you could be accused of discrimination. For example, if you only do checks for people of colour. There is a Home Office guide on this which you can read here.

 

In conclusion

This article (although hopefully helpful) only covers part of what you need to know. If you are a landlord and need to do these checks, you should read the online guidance, most of which you will find linked from here.

And don’t worry too much. So long as you do your best and follow the online guidance that should be enough. You are not a trained Immigration investigator and so under the law cannot be expected to spot anything other than obvious forgeries or check out obvious suspicious circumstances.

The main thing to do is to keep proper records so that if the Home Office do come after you, you can prove that you did do the checks. Make sure you have a form which prompts you do ask all the right questions. I have one for my Landlord Law members but you will find a free form here. You will need to keep it, plus copies of the relevant documents, for at least 12 months after the end of the tenancy.

In the meantime you can find me at www.landlordlaw.co.uk, my Landlord Law Blog at www.landlordlawblog.co.uk and on twitter @TessaShepperson


Tessa Shepperson

Tessa is a lawyer specialising in landlord & tenant law and runs the popular Landlord Law online service for landlords.


Posted by Tessa Shepperson on 20 June 2017

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