Residential Landlords and Obligations under the Immigration Act 2014

Continuing our examination of the Immigration Act 2014, Trisan Hyatt, pupil at Invictus Chambers, considers the new onus on landlords to confirm the immigration status of would be tenants. 

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The Immigration Act 2014 (“IA 2014”) has brought about significant changes in landlord and tenant law. Sections 20-37 of the IA 2014, termed as the “right to rent” provisions, prohibits private landlords of residential properties from allowing certain people to occupy their properties. Section 20 of the IA 2014 provides a definition of the term “residential tenancy agreement”, namely a tenancy which:

  • Grants a right of occupation of premises for residential use.
  • Provides for payment of rent (whether or not a market rent).
  • Is not an excluded agreement (excluded agreements are specified in Schedule 3 of the IA 2014).
  • A tenancy includes any lease, licence, sub-lease or sub-tenancy, and an agreement for any of those things.

Section 21 lists the persons disqualified from occupying premises under a residential tenancy agreement. As detailed below, disqualified individuals are primarily those with a “precarious” immigration status. Section 21 provides as follows:

21(1)For the purposes of this Chapter, a person (“P”) is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement if—

(a)P is not a relevant national, and

(b)P does not have a right to rent in relation to the premises.

(2)P does not have a “right to rent” in relation to premises if—

(a)P requires leave to enter or remain in the United Kingdom but does not have it, or

(b)P’s leave to enter or remain in the United Kingdom is subject to a condition

preventing P from occupying the premises.

(3)But P is to be treated as having a right to rent in relation to premises (in spite of     subsection (2)) if the Secretary of State has granted P permission for the purposes of this Chapter to occupy premises under a residential tenancy agreement.

(4)References in this Chapter to a person with a “limited right to rent” are references to—

(a)a person who has been granted leave to enter or remain in the United Kingdom for a limited period, or

(b)a person who—

(i)is not a relevant national, and

(ii) is entitled to enter or remain in the United Kingdom by virtue of an enforceable EU right or of any provision made under section 2(2) of the European Communities Act 1972.

(5) In this section “relevant national” means—

(a)a British citizen,

(b)a national of an EEA State other than the United Kingdom, or

(c)a national of Switzerland.

In order to test this new legislation, the Home Office has decided to implement it on a pilot basis starting with the West Midlands (Birmingham, Walsall, Sandwell, Dudley and Wolverhampton).  On 1st December 2014 this pilot scheme, requiring residential landlords to check tenants’ immigration status, came into force. It was brought into force by the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (SI 2014/2771). As such landlords in the West Midlands must check the immigration status of potential tenants.

Landlords in those areas will have to take certain steps in compliance with the legislation before they rent out a property. The Home Office has provided guidance on how to carry out ‘the right to rent’ checks and also guidance as to how to request a ‘right to rent’ check from the Home Office.

There has been some concern as to how the new legislation will apply in practice. Many of these concerns are likely to be alleviated by two key Orders which have come into force on the 1st December 2014 to assist with the implementation of the Act. These Orders are; The Immigration (Residential Accommodation) (Prescribed Cases) Order 2014 (SI 2014/2873) which sets out  additional circumstances when a residential tenancy agreement will be treated as having been entered into and the Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order 2014 (SI 2014/2874) which details the prescribed requirements for the identity checks which landlords must comply with when entering into a residential tenancy agreement.

The latter Order stipulates that ‘right to rent’ checks on prospective tenants may only be undertaken and recorded up to 28 days before the tenancy agreement comes into effect and outlines 4 basic steps to conducting an initial right to rent check:

  1. Establish the adults who will live in the property as their only or main home;
  2. Obtain original versions of one or more of the acceptable documents for adult occupiers (the documents required are contained in schedule 3 to The Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order 2014.) eg: passport, residence card, birth certificate, biometric immigration documents;
  3. Check the documents in the presence of the holder of the documents, and
  4. Make copies of the documents and retain them with a record of the date on which the check is made.

Additionally, the Home Office has issued codes of practice to assist landlords, their agents and advisers. The following codes of practice come into force on 1 December 2014:

  • Code of practice on illegal immigrants and private rented accommodation: Civil penalty scheme for landlords and their agents.
  • Code of practice for landlords: Avoiding unlawful discrimination when conducting “right to rent” checks in the private rented residential sector.

The latter of the two Codes gives guidance to landlords and their agents on how to operate checking processes that are non-discriminatory and in accordance with statutory equalities duties.

The landlord is therefore primarily tasked with checking that a potential tenant has the right to live in the United Kingdom before entering into a tenancy agreement and letting a property to him or her. The IA 2014 goes as far as to prohibit the property owner from or accepting that class of individuals as lodgers. Even more stringent is the burden it places on the landlord to check that someone’s right to occupy the premises does not lapse during the duration of the tenancy.

In light of the IA 2014, residential landlords must be careful to keep a record of their tenant’s status and preserve documentation of their efforts as the legislation stipulates that any breach of the provision will result in a civil penalty of up to £3,000 in accordance with section 23, IA 2014.

Pursuant to sections 24-25 of the Act landlords will be excused from paying the penalty however if a person acting as the landlord’s agent is responsible for the contravention (see section 25(2)).

As the aim is to introduce this provision across the UK the Home Office will evaluate the pilot in spring 2015, and expects to continue with the phased introduction of the requirement to check immigration status across the United Kingdom in 2015.

In November 2014, a month before the sections relevant to landlords and the right to rent came into effect, a survey showed that 80% of the UK’s landlords were unaware of their tenant’s immigration status. It is anticipated that the new ‘right to rent check’ will therefore have a significant impact on the current practice of private landlords and those with “precarious” immigration status seeking rented accommodation.

Trisan Hyatt