Landlords are you ready for mandatory right to rent checks
Right to Rent checks will become mandatory for all adult occupiers with new tenancies in England from 1 February 2016
Last week the Home Office issued an updated version of the Right to Rent Code of Practice to be used by landlords and agents letting properties in England from 1 February 2016. The existing Code published for landlords and agents working in the phase one areas of the West Midlands continues to apply to properties within those phase one areas. Any ID checks or follow up checks which fall after 1 February will be subject to the new Code of Practice.
The new Code includes amended lists of acceptable documents for Right to Rent checks. Amended lists of acceptable documents are specified in section 5.2 of the updated Code available here.
Immigration Minister James Brokenshire:
“Landlords with property in England need to prepare now for the new Right to Rent scheme to ensure they are ready for 1 February.
“Right to Rent is part of the Government’s wider reforms to the immigration system to make it stronger, fairer and more effective. Those with a legitimate right to be here will be able to prove this easily and will not be adversely affected. The scheme is about deterring those without the right to live, work or study in the UK from staying here indefinitely.”
Here’s a reminder of how to carry out checks
STAGE 1 – Establish who will live in the property. Obtain, Check and Copy one or more original documents that demonstrate the Right to Rent in the UK for all adult occupiers for that property in the presence of the holder. Acceptable documents include a UK passport and a permanent residence card or travel document showing indefinite leave to remain. The full list of documents can be found here: www.gov.uk/government/publications/ rules-and-acceptable-documents-right-to-rent-checks
NOTE: In circumstances where a tenant is arranging their tenancy from overseas this is more challenging. One course of action is to do checks by video call and agree the tenancy subject to an ID check on arrival.
You don’t have to do further checks if the person doesn’t have any restrictions on their right to stay in the UK (such as if they are a British, EEA nations or non-EEA nationals with the right to be in the UK definitely).
If you use a tenant referencing agency you still need to see original documents and make copies yourself. You should retain clear versions or electronic records of the documents and record the date when you did this.
NOTE: Checks should be carried out in the presence of the holder to ensure the documents match and there are no obvious causes for suspicion such as photographs that are an unsatisfactory likeness.
If the tenant’s permission to stay in the UK is time limited, you’ll have to make a follow up check on the tenant.
NOTE: Record any dates regarding occupants who have a time limited right to be in the UK (which will be on their passport visa, passport stamp or biometric residence permit).
Securely store copies of all documents throughout the tenancy and for at least one year afterwards.
STAGE 2 – Where the initial check shows that a person has the right to be in the UK for a limited time you can let to that person but you must also make a follow up check. In the case of Let Only tenancies you need to inform the landlord of any need for follow up checks and keep evidence of this communication.
NOTE: Follow up checks must be carried out just before the expiry of date of the tenant’s right to be in the UK or 12 months after the original check whichever is the later.
STAGE 3 – If the follow up check shows that the person no longer has the right to be in the UK you must make a report to the Home Office using: www.gov.uk/report-immigration-crime
NOTE: The report must include the full name and address of the occupier, the date they first took up occupation plus copies of their documents when you first undertook the initial Right to Rent check. You must also include your name and contact address or where relevant the contact details of the agent.
You can be fined up to £3,000 per occupier if you rent your property to someone who isn’t allowed to stay in the UK and you can’t show that you checked their Right to Rent.
You can also be fined if you make a follow up check and don’t make a report to the Home Office saying that a tenant’s stay has run out or you don’t make a follow up check on a tenant who has a time limited permission to stay in the UK: www.gov.uk/penalties-illegal-renting
If a person cannot show any documents due to an ongoing appeal being dealt with by the Home Office you can request that the Home Office carry out a check via the Landlord Checking Service. For this you must have a Home Office reference number. For queries about the scheme call the Home Office landlords helpline on 0300 069 9799. Further information can be found here: www.gov.uk/government/publications/right-to-rentlandlords-code-of-practice
The Home Office are running a media campaign to highlight awareness among landlords and tenants. We have stressed the importance of this; the more that consumers are aware of an expectation to meet the new requirements, the easier it will be for agents to comply.
Not complying with the new legislation means you could face a civil penalty of up to £3,000 per tenant for renting your property to someone who isn’t allowed to stay in the UK.
The Right to Rent scheme – which requires landlords or agents to check ID of all prospective adult occupiers – is being rolled out across England from 1 February 2016. Where an adult occupier has a time limited right to remain, landlords and letting agents will need to conduct follow up checks. These need to be made 12 months from the initial check or at the expiry of the individual’s right to be in the UK, whichever is the later.
HOME OFFICE FAQs
Working with the Home Office and UK Border Agency we have compiled a list of FAQs to answer the questions that are widely asked by landlords and letting agents.
What happens where I have a US citizen and her family moving to the UK? They are not visiting prior to arrival and need to agree a residential tenancy, ship their furniture and occupy on arrival?
Prior to any agreement for residential tenancy, the landlord or letting agent should conduct Right to Rent checks. In such a scenario as above, if the US citizen had a relevant visit visa and therefore a ‘limited’ right to reside in the UK (specifically in the implementation phased area), their visa will substantiate that. In practice, this will generally mean that the new tenancy agreement is subject to a condition that the Right to Rent checks are satisfied once the US citizen arrives in the UK.
How should I carry out a check on someone who wears a headscarf or veil?
Individuals should be asked to show their face to check that it matches their facial image on their documents. Scarves which cover the hair need not be removed. Those conducting the check should offer the opportunity for the prospective tenant to show their face in a private area and/or in the presence of another female.
What happens with company lets where we don’t know who the occupiers are? We let to the company who allow the current CEO etc to occupy on terms that are generally longer than three months?
In these circumstances, the agreement is with a corporate body and not directly with a ‘tenant’ (albeit the body can be a tenant). The body will have control over who may stay at the property, i.e. a form of licence and they will be the liable party. Employers already conduct right to work checks and are subject to civil penalties if it is found that they are employing illegal workers.
What happens if in Jan 2015 I take over responsibility for a property in the pilot area which is already let? If the landlord hasn’t got evidence of checks to pass to me, do I conduct checks at that point? And if he does pass evidence to me, I still won’t have seen the original myself.
It depends on whether the tenancy (letting) was agreed before or after the implementation date of 1 December. If after the implementation date, it will be the person who granted the residential tenancy who is liable for a penalty where checks were not carried out and an illegal immigrant is found living in the property. That is, the previous landlord in the circumstances set out above. Where the new landlord has no evidence that checks that should have been conducted ever were, they should conduct fresh checks on the sitting tenants/occupants.
What if I have student occupiers from overseas arriving on different dates?
A check needs to be carried out on each adult occupier. If tenants are arriving from abroad at a later date than other occupants, they will need to pass a Right to Rent check before taking up occupancy.
If I acquire a property with occupying tenants and the date that they took up their tenancy with the previous landlord precedes 1st December therefore no checks were needed, do I now need to carry out ID checks because I have acquired the property or do I need to obtain and retain evidence from them that their tenancy started prior to 1 December 2014?
No, you do not need to carry out retrospective checks on tenants. It would be best practice that you would obtain evidence and details of the existing tenancy that has been taken over.
What are the Home Office doing to inform landlords directly?
The Home Office have been working with a wide variety of partners to publicise the requirements of the scheme to landlords and tenants. Within the Minister’s implementation panel meetings ARLA has stressed the importance of raising awareness of the scheme with landlords, householders with lodgers and with tenants. The greater the number of tenants who expect checks, the easier it will be for agents to carry them out.
If I discover a prospective occupier with no right to rent in the UK and know their current address, an address that I am not responsible for, can I be liable for penalty if I do not make a report to the Home Office?
No, you would not be subject to a civil penalty for not making a report to the Home Office against an individual you have not rented to. You would only be liable for a civil penalty if you rent to a tenant where they have no right to rent in the UK (in the implementation phased area) and you knowingly did so.
How does this affect existing Housing Law? What are the implications for existing housing law in reality?
Landlords and lettings agents may wish to consider reviewing and amending the stock of contracts, terms and conditions that they use in day to day business. When updating your landlord Terms of Business don’t forget to include Right to Rent checks.
What if the landlord wants to discriminate against a prospective tenant?
Whether or not a person needs and has permission to stay in the UK and has a right to rent is a matter of fact that can be verified. Only the listed documents should be used to reach a decision. Checks should be performed without regard to race, religion or other protected characteristics or equality.
How do I know that the Home Office reference number that I have been given relates to the person in front of me? Can you give me a copy of the photo ID for the person that is the subject of the Home Office appeal?
The reference number will relate to an individual known to the Home Office and checks will be conducted against the details held on that individual. All positive results will be recorded and monitored so as to identify any instances where we suspect fraudulent activity.
If a guarantor’s visa expires mid tenancy does a check on renewal status still apply?
If the guarantor does not live in the property there is no stipulation from the Landlords Scheme perspective for the landlord to carry out a repeat check when their visa is due to expire. Though of course from a commercial angle they may want to do this – but that is your choice to mitigate against any risk. Of course if the guarantor lived in the property they would be subject to a repeat check just prior to their visa expiring.
For further information on the right to rent scheme, contact our award winning, ARLA licensed lettings team on 03330 433 633.
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