Right-to-Rent:

It is said that seven out of 10 landlords do not understand their obligations under the “Right to Rent” rules that oblige them to check all new tenants’ immigration statuses.

The law that came into force on 1st February 2016 obliges landlords in England to check ALL tenants and lodgers entering their private rented sector (PRS) properties (there are exemptions for some types of accommodation) by carrying out some simple checks.

If the tenant is arranging their tenancy from overseas, landlords / agents must see their original documents before they enter into a tenancy, but initial checks may be carried out online – Skype for example.

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The Immigration Act 2016, which came into force on the 1st of December 2016, now stiffens the original Civil Penalties regime brought in under the Immigration Act 2014 (up to £1,000 the first time offence, and £3,000 subsequently), to a criminal offence with a maximum five years in prison and/or a £30,000 fine.

Landlords have an ongoing responsibility to monitor the situation as any tenant having a limited right to stay, or minors who will turn 18 during the period of a tenancy, will need to have their documents checked or re-checked when appropriate.

The 2016 Act introduces new rules to fast-track termination of agreements and evictions where occupiers are found to be disqualified, and where the Secretary of State has given one or more notices in writing to the landlord. The landlord in these circumstance can terminate the tenancy agreement by giving the tenant, or all of the tenants if it is a joint tenancy, a 28 day notice to quit in writing, and this notice will be enforceable as if it were an order of the High Court.

In a case like this the landlord can then directly instruct a High Court Enforcement Officer (HCEO) who will go through the process to obtain a writ of possession, and no prior approval is required from the court as it would be for a normal possession claim.

Landlords / Agents are obliged to act on Secretary of State notices within a “reasonable time”.

A new ground (ground 7B) has been added to Schedule 2 of the Housing Act 1988 which gives mandatory possession for situations where the Secretary of State’s notice applies to some occupiers, but not all. Here it will be possible to transfer the tenancy agreement to those occupies not affected.

Landlords will be able to transfer the responsibility for carrying out the Right-to-Rent checks, and ongoing monitoring to their agents, but this must be evidenced in the form of an agreement in writing between the landlord and agent, otherwise this responsibility will always revert back to the landlord.

Landlords and agents must be able to prove (1) that they have carried out the checks by having the documentary evidence and (2) that they have not discriminated – every tenant (including UK nationals) must be checked in a similar way.

The Home Office have said that landlords are not immigration officers and are not expected to be experts; they are required to carry out face-to-face checks with original documents (photo passports etc.) to verify as far as they are able, their authenticity, and:

  • Record the name of the person carrying out the check at the time
  • Keep written details of the check and the questions asked, and answers given, and
  • Check for obvious forgeries and consistency of names, dates, dates of birth etc.
  • Keep copies of the ID the documents provided, which must be kept on file for one year after the tenancy ends.

A “Right-to-Rent Declaration Form” which fulfils most of these requirements and other rental checklists can be downloaded here: www.landlordzone.co.uk/documents

In most cases the checks needed are very straightforward. Those tenants having a right to rent will have valid documents to prove they are:

  • British, or a citizen of a country in the EU or EEA
  • A citizen of another country with no time limits on the permission to live in the UK (such as indefinite leave to remain)
  • A time-limited right to rent, subject to monitoring and follow-up by the landlord or agent.

Where there is a time limit on a tenant’s permission to stay in the UK it is likely that a visa will be involved:

  • A work visa
  • A study visa
  • As a husband, wife or civil partner of someone settled in the UK

Time-limited right-to-rent can also apply for humanitarian protection, which gives limited leave or discretionary leave to remain.

See Gov.uk to check if you have the right to rent here

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