Immigration Checks started in the West Midlands

On the 1st December 2014, the Immigration Act 2014 came into effect. Under Section 22 of this act a landlord must not authorise an adult to occupy a property as their only or main home under a residential tenancy agreement unless the adult is a British citizen, or EEA or Swiss national, or has a ‘right to rent’ in the UK. Someone will have the ‘right to rent’ in the UK provided they are present lawfully in accordance with immigration laws. Landlords who breach section 22 may be liable for a civil penalty.

Landlords have the option to appoint an agent to act on their behalf and where an agent has accepted this responsibility, the agent will be the liable party in place of the landlord (non-compliance with the legislation could lead to a fine of up to £3,000.00) The legislation and civil penalty scheme will be introduced in geographical phases starting with a pilot area of Birmingham, Walsall, Wolverhampton, Dudley and Sandwell from the 1st December 2014. From this date, any adult who wishes to occupy a property as their main/principle home under a residential tenancy will be required to provide their agent/landlord with proof of their ‘right to rent’.

Acceptable documentation includes passports and biometric residence permits. In a limited number of cases, such as where tenants don’t have their documents due to an ongoing Home Office application, landlords can request a check using the ‘right to rent’ tool on the website.

It is currently proposed that the legislation will rollout nationally in April 2015 (however this is subject to change by the government).

The legislation does not require any right to rent check to be carried out for any occupants of tenancies which commenced prior to the 1st December 2014. In brief there are 3 steps in establishing and maintaining a statutory excuse against liability for a civil penalty:

1. Conduct initial right to rent checks before authorising any adult to occupy rented accommodation.
2. Conduct follow-up checks at the appropriate date if initial checks indicate that an occupier has a time-limited right to rent.
3. Make a report to the Home Office if follow-up checks indicate that an occupier no longer has the right to rent.

Prior to accepting an offer from an applicant, the responsible party should complete the following:

1. Obtain original acceptable documents of all occupants over 18 years of age (including permitted occupants, family etc)
2. Check, in the presence of the holder, that the documents appear genuine, that the person presenting them is the prospective occupier, the rightful holder and allowed to occupy the property.
3. Copy each document clearly, retain a record of when the check was made and retain the copies securely for at least one year after the tenancy agreement comes to an end.

Where an applicant has a time-limited right to rent, the landlord will have an obligation to conduct follow up checks to ensure a tenant continues to have rights to reside in the UK. This check must be carried out either within a year of the previous check or on expiry of the persons permission to be in the UK whichever is later.

Checks must be carried out in the same process as above (original documents, in person and copies taken). – Further information regarding the legal requirements can be found https://www.gov.uk/government/publications/right-to-rent-landlords-code-of-practice