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Residential Landlords: Does your tenant have the "right to rent"?

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As from 1 February 2016 all private landlords in England will have to check that any new tenants have the right to be in the UK before renting out their property (“the right to rent”).

Under the Immigration Act 2014 private landlords of residential properties are prohibited from allowing certain people to occupy those properties depending upon the immigration status of the occupiers. Landlords will have to check the status of prospective tenants, and any other authorised occupiers such as family/friends etc., to satisfy themselves that the parties have the right to occupy the property before granting a tenancy. The obligation on the landlord does not end there. The landlord must make sure that the right to occupy does not elapse.

If a landlord fails to comply he/she/it could be landed with a “civil penalty” of up to £3000.

The obligations are not limited to landlords but apply to any agent acting on behalf of a landlord. They also include anyone renting out a room in their own property to a lodger.

Every adult over the age of 18 years must have the right to rent in the UK. This includes not only the named tenant but everyone over the age of 18 who will use the property as their only or main home. Checks must also be made on any child who reaches 18 as and when the tenancy or renewed or renegotiated.

The only people who have an automatic right to rent are holders of UK passports, holders of passports of any country in the EU and holders of Swiss passports. However, to avoid any complaint of unlawful discrimination landlords must carry out the same checks for all prospective tenants/occupiers.
It is advisable for any landlord, agent or householder to record the following:

  • The full name and date of birth of every adult who will live in the property;
  • The names and dates of birth of any children under the age of 18 who will be living with them in the property;
  • Whether each of the adults named has current permission to be in the UK and the nature of that permission;
  • If the property is not to be the main home of the tenant/occupiers, the address of their main home.

What are the documents a landlord/agent/householder should be looking at (the original and not simply copies)? The first tier of such documents are:

  • A passport 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 showing that the holder is a national of the European Economic Area or Switzerland;
  • A registration certificate or document certifying or indicating permanent residence issued by the Home Office to a national of a EU, EEA or Switzerland;
  • A permanent residence card, indefinite leave to remain, indefinite leave to enter or no time limit issued by the Home Office to a non EEA national who is a family member of an EEA or Swiss national;
  • A biometric document issued by the Home Office to the holder indicating that the person names is allowed to stay indefinitely in the UK;
  • A passport or other travel document endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK or has not time limit on their stay;
  • A certificate of registration or naturalisation as a British citizen.

This is just an example of the most obvious documents a landlord may be called upon to consider. There are numerous others. Quite often some such documents are limited in time. It will be up to the landlord/agent/householder to check the same has been renewed.

What happens if the tenant/occupiers does not have the right to rent or loses the right to rent (because, for example, the right to stay in the UK has expired)? Firstly the landlord must not let to that person. Secondly, if the right to rent elapses the landlord must make a report to the Home Office.

If a landlord if found renting to a person who has no right to rent, the landlord or property owner may be issued with a referral notice informing them that the details of their case are being looked at and they may be issued  with a penalty notice. The amount of the penalty notice will depend upon the level of the breach and can range from £80 to £3000. There are limited chances of appealing.

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