The Home Office introduced a Right to Rent scheme which saw the property industry take direct responsibility for immigration checks for those seeking to rent private residential property. It is expected that the scheme will be rolled out nationally later on this year following an evaluation process and the scheme has been recent headline news. Here we look at the wider implications of right to rent for those letting properties to overseas nationals and provide guidance on what landlords and agents need to do to stay compliant with immigration laws.
In December 2014, the Rent to Rent pilot scheme was introduced by the Home Office in five key areas in England: Birmingham, Wolverhampton, Dudley, Sandwell and Walsall.
Under the pilot, property landlords or by default their lettings agent and homeowners renting property from 1 December 2014 in the above areas, must ensure that potential tenants, sub-tenants and lodgers are legally entitled to be in the UK by checking their immigration status. If checks are not made before the tenancy agreement is entered into and the tenant is found to have no right to be in the UK, the landlord or letting agency could face a civil penalty. The scheme is in keeping with provisions contained in sections 20 to 37 of the Immigration Act 2014 and applies to those over 18 years of age only.
Immigration checks for British, EU Citizens and those with Indefinite Leave to Remain
In most cases, landlords, agents and homeowners will simply need to check the potential tenant’s passport or Biometric Residence Permit (BRP) to confirm that the person is entitled to reside in the UK without any restrictions (Indefinite Leave to Remain) or is a British or EU citizen.
A list of the documents that the landlord or agent will need to check are:
• A passport (current or expired) showing the holder is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK
• A Registration Certificate or document (current or expired) certifying permanent residence issued by the Home Office, to a national of an EU country, EEA country or Switzerland
• A Permanent Residence Card, indefinite leave to remain, indefinite leave to enter or no time limit card issued by the Home Office, to a non-EEA national the family member of a national of a EU country, EEA country or Switzerland
• A valid Biometric Residence Permit issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK
• A passport (current or expired) endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK
• A valid immigration status document issued by the Home Office to the holder with an endorsement indicating that the named person is permitted to stay indefinitely in the UK or has no time limit on their stay in the UK
• A certificate of registration or naturalisation as a British citizen
The Home Office state in their literature that the majority of checks will be done with relative ease and will take a matter of minutes.
As the list above shows, right to work checks for British and citizens within the European Union (EU) or European Economic Area (EEA) is straightforward, can be done with relative ease and can provide immediate certainty about the tenant’s right to rent the property.
However, what if the tenant is not in possession of one of the documents listed above but claims they are British or EU/ EEA citizens or have or indefinite leave to remain? In those cases, the landlord or agent will need to obtain one of the following documents to provide assurance of the person’s right to be in the UK:
• A full birth or adoption certificate issued in the UK, the Channel Islands, the Isle of Man or Ireland, which includes the name(s) of at least one of the holder’s parents or adoptive parents
• A current full or provisional UK driving licence (both photocard and paper counterpart must be shown)
• A letter issued within the last three months confirming the holder’s name issued by a UK government department or local authority and signed by a named official (giving their name and professional address) or British passport holder (giving their name, address and passport number) or issued by a person who employs the holder (giving their name and company address) confirming the holder’s status as an employee
• A letter from a UK police force, issued within the last three months, confirming that the person is the victim of crime, personal documents have been stolen and stating the crime reference number
• Evidence of the person’s previous or current service in HM armed forces
• HM prison discharge papers or a probation service letter
• A Disclosure and Barring Service certificate issued within the last three months
• Benefits paperwork issued by HMRC, local authority or a Job Centre Plus, issued within the last three months
• A letter from a UK further or higher educational institution confirming the holder’s acceptance on a course of studies
Obtaining, checking one of the above documents and retaining a copy will satisfy the right to rent checks.
Immigration checks for overseas nationals
However, establishing the right to rent a property may prove less than straightforward for landlords but should not prove detrimental if landlords request and check the correct documents.
For instance, nationals from outside of the EU or EEA may reside in the UK in their capacity of a highly skilled worker under the Tier 2 and Tier 5 categories, a Tier 4 student, the partner of an EU citizen, or anyone else from overseas that is entitled to be in the UK and is subject to immigration restrictions.
The landlord or agent should therefore obtain and check the following documents as evidence of the prospective tenant’s immigration entitlements:
• A current passport endorsed to show that the holder is allowed to stay in the UK for a time limited period.
• A current Biometric Residence Permit issued by the Home Office to the holder, which indicates that the named person can currently stay in the UK for a time limited period.
• A Residence Card or a Derivative Residence Card issued by the Home Office to a non-EEA national who is either a family member of a national of an EU country, EEA country or Switzerland or has a derived right of residence in the UK under EU law for a time limited period.
• A valid Immigration Status Document issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK for a time limited period.
Often, a prospective tenant from overseas may not be in a position to provide the above documents but may still be entitled to be in the UK. Such circumstances can arise were the person has an ongoing immigration application or appeal to the Home Office and the Home Office currently holds their original documents. If so, the landlord or agent is advised to contact the Home Office for confirmation of the person’s right to rent. This can be done by completing a brief online form with the prospective tenant’s:
• Date of birth
• Current residential address
• Home Office immigration application or appeal reference number
In such circumstances, without this information it may prove difficult for the Home Office to verify that the prospective tenant has a right to rent. Where the right to rent has not been established, a person is not permitted to occupy the residential accommodation if they require permission to be in the UK and do not have it.
Making checks throughout the tenancy
What happens if the tenant’s limited leave to remain in the UK is due to expire 10 months into a 12 months tenancy agreement? Will the landlord or agent be expected to carry out a right to rent check at the 10 month mark or only rent the property for 10 months? What will be the extent of the landlord’s liability be where they have evidence of a tenant’s visa being issued for 12 months but that visa was later cut short by the Home Office without the landlord’s knowledge?
Unfortunately, when I had put these questions to a Senior Immigration Official and former colleague, I was met with a perplexed shrug of the shoulders and told that the consultation stages would provide better clarity.
However subsequent guidance, and certainly our guidance, would be to carry out a right to rent check near the expiry of the tenant’s leave to remain in the UK. The documents and process outlined above should be followed again where the overseas national has a limited right of residence in the UK in order to protect the landlord’s and agent’s position.
Landlords or agents who fail to carry out right to rent checks and/ or provide rental accommodation to a tenant without the right to reside in the UK could face a penalty of £1,000 per tenant (£3,000 for repeated offences and an £80 penalty per lodger rising to £500 per lodger for each lodger.)
Landlords, agents and homeowners may establish and maintain a statutory excuse against liability for a civil penalty where they have taken the following 3 steps:
• Conducted and initial right to rent checks before authorising an adult to occupy rented accommodation; and
• Conducted follow-up checks at the appropriate date if initial checks indicate that an occupier has a time-limited right to rent; and
• Made a report to the Home Office.
Landlords and agents are therefore advised, once the scheme is rolled out nationally, to copy, retain and file evidence of right to work checks conducted for prospective and actual tenants and to keep a record of any communications with the Home Office. Landlords and agents in Birmingham, Wolverhampton, Dudley, Sandwell and Walsall, where the scheme currently operates, should ensure that such practices are already in place.
In addition to immigration checks, landlords, agents and homeowners must not fall foul of anti-discrimination laws in the UK.
The Equality Act 2010 generally prohibits discrimination and other unlawful acts in letting practices on the following grounds (which together with age and marriage and civil partnership are known as the “protected characteristics”):
• Gender reassignment
• Pregnancy and maternity
• Religion or belief
• Sexual orientation
Prospective tenants and existing tenants from overseas should not be treated less favourably. Nor should landlords and agent avoid renting their properties to overseas nationals because of perceived difficulties and fears of civil penalties. As highlighted above, making the right to rent checks can help establish the prospective tenant’s or tenant’s right to reside at the property.
The Home Office introduced the right to rent scheme which placed responsibility for immigration checks on landlords, their agents, and homeowners renting or sub-letting their residential property or accommodation. The scheme has been introduced in certain key areas only and is currently being evaluated by the Home Office. It is hoped that the evaluation will take into account the feedback and concerns raised by landlords, letting agents and migrants representative groups before the scheme is rolled out nationally, the date of which has not yet been announced.
Nevertheless, sources have indicated that the right to rent scheme could be introduced nationally later this year or early next year. There are already provisions contained in the Immigration Act 2014 hat require landlords to check the immigration status of all new adult tenants. In light of this and the government’s current stance on immigration more generally, a national roll out sooner rather than later is indeed possible.
Landlords and agents in Birmingham, Wolverhampton, Dudley, Sandwell and Walsall are advised to continue to make right to rent checks for prospective tenants and existing tenants where their limited right to remain in the UK is due to come to an end. For landlords and agents in the rest of the country, it may be time to familiarise yourselves with the right to work requirements so that any transition from current practices goes as smoothly as possible and to ensure compliance with immigration laws.
Contact DavidsonMorris at firstname.lastname@example.org or on 020 7494 0118 for advice on how we can help landlords and agents comply with their immigration obligations.