Right to rent

The “Right to Rent” provisions came in on Monday this week (1 February 2016).

The provisions require landlords to check the immigration status of their prospective tenants (and any adult who will be living with them) before they let out a property. Landlords who are found to be renting to anyone who does not have the right to remain in the UK, will be committing a criminal offence. And those who are found not to have a right to rent may be evicted without a court order.

The new provisions have serious implications for both landlords and tenants and the potential for the provisions to encourage discrimination has been raised by a number of concerned agencies and organisations. Last year a pilot was carried out in five Northern cities and reports of race discrimination were widespread.

The JCWI co-ordinated an evaluation of the West Midlands pilot of ‘Right to Rent’ and their published report found some disturbing trends. 42% of landlords were unlikely to rent to those without British passports. Over 25% would be less likely to rent to someone with a foreign name or foreign accent. The checks were mainly directed at certain individuals who appeared ‘foreign’ and landlords were being forced to discriminate against individuals with the legal right to rent but with unclear or complicated immigration status.

Summary of the “Right to Rent” provisions

If the tenant/licensee/lodger (and any adult member of their household) does not have (or cannot prove they have) leave to remain in the UK they will not be entitled to rent or occupy accommodation privately unless the Home Office specifically grants them permission to rent.

The landlord (or their agent) has to carry out checks on all people over the age of 18 who will live in the property.

If the landlord has not carried out the necessary checks, and they have ended up renting their property to an unlawful migrant, they will be liable to a fine up to a maximum of £3000.

The rules even apply to tenants who sublet their home or part of their home or take in lodgers. The tenant must carry out immigration checks on their potential lodger before they enter into any lodger agreement.

Exempt properties

There are a few situations in which the checks don’t have to be carried out. For example where someone has a guest (who has a home elsewhere) staying temporarily, holiday lets, social landlords letting to social tenants, domestic violence refuges, student halls of residence and social services providing accommodation for children and their families under the Children Acts.

Additionally, no checks are needed for tenancies that existed before 1 February 2016 or where the tenancy passes to a “successor” on the tenant’s death.

Who is affected?

All adults over 18 will fall into one of three categories, those with:

1. an unlimited right to rent (British citizens, EEA and Swiss nationals, and people with indefinite leave to remain in the UK)
2. a time-limited right to rent (people with time limited right to remain – e.g. humanitarian protection or a spouse visa)
3. no right to rent (people without evidence of leave to enter or remain in the UK)

How will the immigration checks be carried out?

Pre tenancy checks

• A landlord must make such checks as are necessary to ensure that a prospective tenant has either an unlimited right to rent or a time-limited right to rent before they can sign them up to a tenancy agreement or let them into occupation.

  This means the tenant must show the landlord one or more of a list of specified documents.

  In theory, if a person’s documents are with the Home Office or they have an outstanding case or appeal, the landlord can request that the Home Office carry out a right to rent check online. The Home Office promises to provide a Yes or No answer within 2 days.

• The landlord must keep copies of all the original documents for 12 months after the end of the tenancy and only then dispose of them securely.

Follow up checks on persons with a limited right to rent

If the person has a limited right to rent follow up checks must be carried out before the latest of the following:

• one year after the checks were last made
• the person’s leave to be in the UK expires
• the validity of the person’s document which evidences her/his right to be in the UK expires

Where the person no longer has a time-limited right to rent the landlord must report this to the Home Office in a letter or email. The landlord is not required to take any steps to remove the tenant or occupier.

What will happen to a landlord who rents to someone with no Right to Rent?

• A landlord who rents to a foreign national with no Right to Rent can be liable for a civil penalty up to £3000.
• It will be a defence, or ‘statutory excuse’, if they can show that they carried out the necessary checks and made reasonable enquiries to find out who will be using the property as their only or main home;

What will happen to the tenant?

At present (until the Immigration Bill 2015 is passed – see below), the tenancy will be unaffected. If the landlord wants to evict the tenant because s/he has no right to rent, then the landlord must use the standard procedure – notice, possession proceedings, court order and bailiffs warrant.

Future sanctions

The Immigration Bill 2015 contains two provisions that will significantly increase the bite of the Right to Rent.

Firstly a new criminal offence is created. A landlord commits an offence if:

1. his property is “occupied by an adult who is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement”; and,
2. the landlord knows or had reasonable cause to believe that this is so.

The penalty is imprisonment of up to 5 years.

Further, if the Secretary of State becomes aware that a person without a right to rent occupies a property, he may serve a notice on the landlord. The landlord can then serve a notice on the tenant, giving 28 days notice, bringing the tenancy to an end. That notice is enforceable as if it were an order of the High Court. So the service of the notice by the Secretary of State has the effect of turning the tenancy into an excluded tenancy which means there is no right to a court order.

Implications

Discrimination

• If a tenant believes that they have been discriminated against, either directly (e.g. turned away because does not have a UK passport) or indirectly (e.g. not given a realistic time to produce ID), harassed or victimised by a prospective landlord, or an agent of a landlord, they may bring an action against them in the county court for failing to comply with the law.
• The tenant could claim compensation for the losses and injuries they suffered if they could show that they lost the chance of a tenancy. Legal Aid may be available if the claim has merit and the tenant is on a low income.

If you have been or feel you may be affected by these changes in the law, please contact Lou Crisfield at lc@milesandpartners.com.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.