From 1 December 2014 in the areas Birmingham, Walsall, Sandwell, Dudley and Wolverhampton and then from 1 February 2016 in the rest of England, all landlords and agents will need to check the identity of all prospective occupiers. Copies of the documents obtained will need to be securely stored. Landlords and agents must not authorise an adult to occupy a property where the adult is not a national of the UK, EEA state or Switzerland AND who does not have right to enter or remain in the UK unless the prescribed requirements have been complied with.
Landlords and agents need to make reasonable enquiries as to the occupiers of the property even those not named on the tenancy agreement. For example, if a studio flat is being let to a single person, no further enquires are likely to be needed but if the same single person wants to take a four bedroom house, enquiries would need to be made as to why a single person is taking the property alone. The duty to check identity applies to ALL occupiers not just tenants so includes lodgers. A landlord must not authorise ANY adult to occupy (not just tenants) if they have no entitlement to remain in the UK.
A suitable and well written application for accommodation form should be used asking all the necessary questions and obtaining necessary disclaimers from the prospective occupier regarding the answers.
Only the right to rent status of persons occupying as their only or main home require checking. Again, a good application form will ask the necessary questions.
When an occupier lives away from the home for extended periods due to employment, the address to which they return when they are not working is usually taken as being their only or main residence.
A landlord who considers that the occupier will not be using the premises as their only or main home is advised to make a record of the address which the occupier reports they do occupy as their main home, and the reasons for their view that they are not occupying the premises as their only or main home.
Where a landlord has any doubt about a person’s intended use of the property, they should assume that the person intends to use it as their only or main home.
Once all adults who are going to occupy the property as their only or principal home has been established, landlords and agents will need to see original identification documents which will need to be checked against the document holder ”in person or via live video link”. Reasonable steps must be taken to ensure the ID matches the holder. For example, the picture (if one) must represent the person and the age must reasonably match their appearance. Landlords or agents are not expected to have the same level of expertise as an immigration officer though.
The documents that must be obtained are only summarised below. For other acceptable documents and further information, the statutory guidance accompanying the right to rent legislation should be consulted:
Some documents are sufficient where only one has been provided (for example a passport). Otherwise, a combination of two are required.
Any two of the following documents when produced in any combination:
All documents in this list must be valid (not expired) at the time of the right to rent check.
If presented with a document in List B, the landlord must carry out further checks at the longest of the following:
The further check towards the end of the longest period described above must be conducted within 28 days prior to the expiry of that period.
Acceptable documents from list B include:
Once obtained and checked in person (or via live video link), the document(s) must be copied and the date of copying recorded. The copy can be stored in hardcopy or electronically. If electronically it can be stored in any format which cannot be later modified and jpeg (which most camera phones store images in) or PDF will be acceptable.
The documents must be stored securely and must be kept for at least 12 months after the tenancy has ended. The documents should be destroyed after that time because personal data must not be kept longer than necessary. When considering apps to use for storing documents, be prepared to keep the documents a long time as tenancies can continue periodic indefinitely.
Where documents obtained has found the occupier to have a limited right to rent, the checks must be done no more than 28 days before the date the tenancy agreement is entered into (not necessarily commencement).
At the time of those checks, you should record the date for which their leave to remain in the UK expires and when their passport or other travel document expires (where the adult is a non UK, EEA or Swiss citizen).
If you find a tenant is in occupation after their right to remain has expired and you had previously carried out all the appropriate checks, there will be no penalty if you notify the Secretary of State “without delay” and within the longest period. There is no legal requirement to evict the tenant at this stage.
If during enquires, a prospective occupier informs you that they have some outstanding application, appeal or certain other ongoing case with the Home Office, a landlord or agent may contact the Landlord Checking Service https://eforms.homeoffice.gov.uk/outreach/lcs-application.ofml where a positive right to rent notice can be obtained.
If the Landlord Checking Service fails to respond to a request within a period of 2 working days, then the landlord or agent may proceed as though the Landlord Checking Service had issued a Positive Right to Rent Notice.
The default position is that all landlords are liable for the checks even if they employ an agent to carry out the letting of the property.
An agent is responsible for a landlord’s contravention if (and only if) the agent acts in the course of a business and under arrangements made with the landlord in writing, the agent was under an obligation to comply with the prescribed requirements on behalf of the landlord.
In order to avoid a breach of the Equality Act, ALL prospective occupiers must be checked at ALL times. This ensures you have a fair system that does not discriminate in any way.
There is a civil penalty of up to £3,000 if a landlord (or agent) has authorised an adult to occupy premises under a residential tenancy agreement if the adult is disqualified as a result of their immigration status.
In addition, it a criminal offence for a landlord if:
It will be a defence for any person charged with the above offence where:
Guidance is to be issued[a] which will assist with deciding what are reasonable steps to terminate the residential tenancy agreement.
Where ALL occupiers have no right to rent, the Secretary of State may send the landlord a notice identifying all occupiers and the landlord may serve on the occupiers a notice on a prescribed form (at the time of writing, the form has not been produced). The notice must give at least 28 days notice to the occupiers that their tenancy is to end. The notice is then enforceable as if it were an order of the High Court. Amendments have been made to the Protection from Eviction Act 1977 and where a notice has been given to the landlord as outlined, the tenancy is an excluded tenancy.
Where some (or all) occupiers have no right to rent, a new ground 7B has been inserted into the Housing Act 1988 which allows a landlord to serve a section 8 notice (where the tenancy is assured or assured shorthold). The ground may only be used after the Secretary of State has served on the landlord a notice notifying that some or all occupiers do not have a right to rent. If ground 7B is satisfied (by production of the notice from the Secretary of State) and no other ground apples (such as rent arrears) the court may order possession or order that the tenancy now vests only in those occupiers who do have a right to rent.
A similar provision applies for a protected or statutory tenancy under Rent Act 1977. For any tenancy that is neither assured, assured shorthold nor under the Rent Act 1977, an implied term is inserted into the tenancy by that:
the landlord may terminate the tenancy if the premises to which it relates are occupied by an adult who is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement. The term is implied into all tenancies (not assured shorthold etc.) whether they were entered into before or after 1 December 2016.