Landlords form part of the Government’s plans for maintaining effective immigration controls. As a result, landlords, or their agents, must carry out immigration checks to ensure that a tenant or lodger can legally rent the residential property in England. Here, we provide guidance to landlords on the right to rent checks to be carried out, and the follow-up checks required, in order to stay compliant with immigration laws.
Background
You’re a landlord in England with residential property for rent. You find a suitable tenant, you meet them, verify their references, perform a background check, and once assured take a deposit. With move-in dates sorted and direct debits in place, you can sit back and relax.
Well not quite!
Now you have to meet the immigration obligations by carrying out right to rent checks.
Why? The Government is keen to frustrate individuals, who may not be entitled to reside in the United Kingdom (UK) from accessing services and rental property.
Of course, this all places a large onus on you, the landlord. If you are found renting your residential property to a tenant, who does not or no longer has a right to be in the UK, you could be issued with a civil penalty of up to £3,000 per tenant.
So how do you ensure that you stay on the right side of immigration laws?
Here’s how…
Tenants to be checked
The right to rent requirement, under section 32(6)(a) of the Immigration Act 2014, only apply to residential tenancies that started on or after 1st February 2016 in England. There is an earlier date of 1st December 2014 and after, for residential properties in Birmingham, Dudley, Sandwell, Walsall or Wolverhampton.
As a landlord of a residential property, you must ensure that the tenant, or a lodger, can legally rent the property.
To do so, you must carry out checks on the tenant, or if there is more than one person occupying the property, checks must be made on each tenant aged 18 years of age and over.
For the purposes of the Home Office, tenants can include individuals who are not named on the tenancy agreement
In fact, as long as there are tenants at the residential property, right to rent checks need to be carried out regardless of whether:
- There is no tenancy agreement in place; or
- The tenancy agreement is no in writing.
How to carry out right to work checks
There are 3 key steps to conducting right to rent checks. They are:
Obtain
After you have confirmed how many adults intend to use your property, you must request their original documents to prove their right to reside in the UK
The Home Office accepts it can be difficult for non-immigration specialists to know which documents to collect and once, collected, what they mean. So the Home Office has split the documents into List A, Group 1 and Group 2, and List B.
List A, Group 1
Documents in List A, Group 1 documents clearly evidence that the individual has a permanent right to rent in England and the UK.
List A, Group 1, documents include:
- A passport (current or expired) showing that the holder is a British citizen, or a citizen of the UK and Colonies having the ‘right of abode’ in the UK
- A passport or national identity card (current or expired) showing that the holder is a national of the European Economic Area (EEA) or Switzerland. A registration certificate or document (current or expired) certifying or indicating permanent residence issued by the Home Office, to a national of the European Economic Area country or Switzerland
- A ‘permanent’ residence, ‘indefinite leave to remain’, ‘indefinite leave to enter’ or ‘no time limit’ card issued by the Home Office (current or expired), to a non-EEA national who is a family member of an EEA or Swiss national
- A biometric ‘residence permit’ card (current or expired) issued by the Home Office to the holder indicating that the person named has ‘indefinite’ leave in the UK, or has ‘no time limit’ on their stay in the UK
- A passport or other ‘travel document’ (current or expired) endorsed to show that the holder is either ‘exempt from immigration control’, has ‘indefinite’ leave in the UK, has the ‘right of abode’ in the UK, or has ‘no time limit’ on their stay in the UK
- A current immigration status document issued by the Home Office to the holder with a valid endorsement indicating that the holder is either ‘exempt from immigration control’, has ‘indefinite’ leave in the UK, has the ‘right of abode’ in the UK, or has ‘no time limit’ on their stay in the UK
- A certificate of registration or naturalisation as a British citizen
Group 2, List A
Where a tenant presents a document from Group 2, List A, you must ensure that you request another document from this list also.
Documents in Group 2, List A include:
- A full birth or adoption certificate issued in the UK, 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 photo card UK driving licence
- A letter from HM Prison Service, the Scottish Prison Service or the Northern Ireland Prison Service confirming the holder’s name, date of birth and that they have been released from custody of that service in the 6 months prior to the check
- A letter issued within the 3 months prior to the check by a UK government department or Local Authority and signed by a named official (giving their name and professional address), confirming the holder’s name and that they have previously been known to the department or local authority
- A letter issued within the 3 months prior to the check from an officer of the National Offender Management Service in England and Wales confirming that the holder is the subject of an order requiring supervision by that officer; from an officer of a local authority in Scotland confirming that the holder is the subject of a probation order requiring supervision by that officer; or, from an officer of the Probation Board for Northern Ireland confirming that the holder is the subject of an order requiring supervision by that officer
- Evidence (identity card, document of confirmation issued by one of HM forces, confirmation letter issued by the Secretary of State) of the holder’s previous or current service in any of HM’s UK armed forces
- A letter from a UK police force confirming that the holder is a victim of crime and has reported a passport or Home Office biometric immigration document stolen, stating the crime reference number, issued within the 3 months prior to the check
- A letter issued within the 3 months prior to the check signed by a representative of a public authority, voluntary organisation or charity which operates a scheme to assist individuals to secure accommodation in the private rented sector in order to prevent or resolve homelessness
- A letter issued within the 3 months prior to the check confirming the holder’s name signed by the person who employs the holder (giving their name and business address) confirming the holder’s status as employee and employee reference number or their National Insurance number
- A letter issued within the 3 months prior to the check from a UK further or higher education institution confirming the holder’s acceptance on a current course of studies. This letter should include the name of the educational establishment, as well as the name and duration of the course
- A letter issued within the 3 months prior to the check from a British passport holder who works in (or is retired from) an acceptable profession as specified in the list of acceptable professional persons. The letter should confirm the holder’s name, and confirm that the acceptable professional person has known the holder for longer than three months
- Benefits paperwork issued by HMRC, a UK Local Authority or Job Centre Plus, on behalf of the Department for Work and Pensions or the Northern Ireland Department for Social Development, issued within the 3 months prior to the check
- Disclosure and Barring Service Certificate (criminal record check) issued within the 3 months prior to the check
List B
If a tenant presents a documents from List B, the document permits the individual a time-limited right to rent the residential property.
Such documents include:
- A current passport or other ‘travel document’ endorsed to show that the holder is allowed to stay in the UK for a time-limited period
- A current biometric ‘residence permit’ card issued by the Home Office to the holder, which indicates that the named person is permitted to stay in the UK for a time-limited period
- A current ‘residence card’ (including an accession residence card or a derivative residence card) issued by the Home Office to a non-EEA national who is either a ‘family member’ of an EEA or Swiss national or has a ‘derivative’ right of residence
- A current 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.
You can also use the Home Office online service Home Office online service to check whether a person is entitled to rent your property.
Check
Once you have obtained the document from the relevant list, you must check the tenant’s document in their presence.
Again, the Home Office is not expecting you to be an expert in immigration documents or inappropriately issued documents. Landlords are merely expected to make reasonable checks to see if the document is genuine and relates to the person in front of you.
So for instance, ask yourself:
- Does the document look as if it has been obviously tampered with?
- Does it contain spelling mistakes?
- It the photograph, on the document, a true likeness of the tenant?
Copy
Copies of the tenant’s List A Group 1 document or List A Group 2 documents or List B document must be kept on file, with a brief record of the date that you checked the originals.
It is crucial to follow the above steps so as to ensure compliance with UK immigration laws. If the tenant is found to have no legal right to reside in the UK, you will have a statutory excuse against a civil penalty if you can evidence that you have obtained, checked and copied the appropriate documents.
Further information can found on the Home Office website.
Timing of checks
It is possible to obtain copies of the identity documents in advance. However, the right to rent checks must be carried out at the start of the tenancy.
There are instances where the right to rent checks must be made well in advance of the start of the tenancy. For instance, if the tenant has limited leave to stay in the UK, or their visa contains an expiry date, you will need to carry out checks 28 days prior to the start of the tenancy.
Follow-up checks
A landlord’s immigration obligation is a continuing one. For that reason, as a landlord, you must ask the adult tenants for proof of their continued right to rent the property.
Where the tenant provides a document from List B, you must obtain and make a copy of the document and follow the same steps again in 12 months’ time, or when the tenant’s leave is due to expire, or when the document evidencing the tenant’s limited leave is due to expire. Doing so, will provide you with a statutory excuse against a civil penalty, should the tenant be found to no longer have a right to reside in the UK.
However, if the tenant provides a document from List A and you have obtained and kept a copy of the document on file, no further checks will be necessary and you are deemed to have a continuing statutory excuse.
When are right to rent checks not required
As the landlord, you are not required to conduct right to rent checks for certain types of accommodation. They include:
- Social housing;
- Care homes, hospices or hospitals;
- Hostels or refuges;
- Mobile homes; and
- Student accommodation.
Checks are also not needed if the tenants in accommodation is:
- Provided by the local authority or Council
- ‘Tied accommodation’, provided as part of their job
- Leased to the tenant for a period of 7 years or longer
You will however, require evidence of the above.
The tenant has limited leave but no documents
It is not unusual for a tenant with limited leave to lack documents because they submitted to the Home Office as part of an application to extend their stay in the UK.
This does not mean that the individual is not entitled to rent the property. Instead, you should check their immigration status by completing a short Home Office online form.
Results are normally relayed within 48 hours.
Important
It cannot be stressed enough, that a, you are required to conduct right to rent checks on all new tenants. This is regardless of whether you believe the tenant to be a British citizen. You still need to gather documentary evidence for all tenants and cannot discriminate.
And another thing…
It was somewhat disconcerting to read according to a Residential Landlords Association (RLA) survey, as many as 20% of landlords admitted they were less likely to rent their residential properties to EU nationals.
Apparently, some landlords felt that the right to rent checks for EU nationals were too onerous. For many, renting their properties to British citizens was much easier.
It must be stressed that following, Brexit, the rights of EU nationals remain the same, at least for the time being. But more importantly, and as highlighted above, right to rent checks must be carried out on all adult tenants. Failure to do so could lead to allegations of discrimination and a breach of immigration laws.
The Home Office Code provides more information for landlords.
Conclusion
Right to rent checks are now part of a landlords continuing immigration obligations. To avoid a civil penalty, landlords must carry obtain documents, as appropriate, depending on the status of the tenant. By following the detailed steps above, landlords can protect themselves against a civil penalty and avoid falling foul of anti-discrimination laws.
Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration help to individuals and families.
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