Landlords’ new obligations under the ‘Right to Rent’ legislation

Under new rules brought in by the Immigration Act 2014 (‘the Act’), all private landlords in England, including those who sub-let or take in lodgers, will have to check new tenants have the right to be in the UK before renting out their property. These new rules commence from 1 February 2016.

Landlords who fail to check a potential tenant’s ‘Right to Rent’ will face penalties of up to £3,000 per tenant.

Whilst the wording of the Act covers adults who are to occupy a premises under a residential tenancy agreement, there is definitely scope for interpretation that this not only covers direct tenants, but also covers adults who are authorised occupiers under the tenancy, or even adults known by the landlord to be using the property as their main or principal home. There is an indication that the Home Office expects more thorough checking over and above the tenants directly named in the tenancy agreement, as the advice provided by the Home Office repeatedly recommends that all adult occupiers known to be resident at the property should be subject to the right to rent checks.

A cautious landlord may consider it wise to conduct a right to rent check for all adults aged 18 or over who will be using the property as their main or principal home. Such a cautious approach may even be more prudent if the Immigration Bill 2015 is approved in its current form and proceeds with including criminal sanctions for landlords alongside civil penalties.

Extending from civil penalties to criminal prosecution

The current form of the Immigration Bill 2015 (‘the Bill’) provides for two potential criminal offences which may be committed by the landlord and/or their agent. The offences relate to the premises of the landlord being found to be occupied by an adult whose immigration status disallows them the right to reside in the UK. For an offence to have been committed, the Bill provides both an objective and subjective test as to whether the landlord knew or had reasonable cause to believe that an adult without the correct UK residential status was residing at the property.

Landlords or agents who are found guilty of these offences could be fined or imprisoned for up to five years.

Other legal impacts for landlords

There is the danger that some landlords may see the responsibility under the Act and proposed Bill as an unpalatable burden which they want to minimise, especially with the potential of prosecution on the horizon. If landlords actively decline accommodation for those they believe not to be British citizens, they could fall foul of anti-discrimination law. The Government is mindful of such tactics occurring, and has provided guidance specifically centered on avoiding unlawful discrimination when conducting ‘right to rent’ checks in the private rented residential sector.

The Act also requires landlords to record and store personal data on the nationality and immigration status on adult residents at their properties. Such data will be subject to the rules provided for under the Data Protection Act 1998 which, to name a few, includes the need for secure storage and compliance with the length of time the data needs to be held on file.

Useful Documents

Further detailed information on the requirements under the Act, including how to make a check, what information to store, and how to report a tenant, can be found in a new Code of Practice. The Government has published the following documents by way of advice and information;

Code of Practice on illegal immigrants and private rented accommodation;
Code of practice for landlords: avoiding unlawful discrimination when conducting ‘right to rent’ checks in the private rented residential sector; and
Right to rent information sheet.

These publications are available on the Gov.UK portal, and can be found at:https://www.gov.uk/government/publications/right-to-rent-landlords-code-of-practice