Right to rent: all landlords must check immigration status or face £3,000 fine
06-30-2015
Landlords in England will be responsible for spotting illegal tenants 'from September' after a trial in the West Midlands results in fines
Phil and Mark Stewardson outside one of their buy-to-let properties in the West Midlands. 'Parties are on the anti-landlord bandwagon,' they say.
By Kate Palmer
Landlords will face £3,000 penalties for failing to monitor the immigration status of their tenants or lodgers, as part of “right to rent” requirements that will apply across England within months.
A trial of “right to rent”, introduced in the West Midlands in December, has resulted in one fine being issued to a landlord, who is appealing the near-£2,000 sum, according to sources.
Landlords and letting agents in the West Midlands – including Birmingham, Wolverhampton, Walsall and Dudley – must already check the nationality and visa status of their tenants. Penalties are issued per tenant who is living in a property who has no right to rent.
Critics fear the legislation, which is expected to be rolled out to the rest of England in September, places an “unfair burden” on landlords who may lack the knowledge or skills to check if their tenants are allowed to live in Britain.
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Immigration checks could potentially flout anti‑discrimination laws, for example, because landlords and letting agents are not allowed to discriminate by nationality or race when choosing tenants.
Anne-Marie Balfour, from law firm Charles Russell Speechlys, said: “Landlords need to tread a fine line between immigration compliance and avoiding race discrimination.”
Tenants who are rejected unfairly can sue landlords under the 2010 Equality Act. “An award for 'injury to feelings’, for example, would be in the region of £6,600,” Ms Balfour said.
She added: “This places yet more administrative burdens on landlords and could lead to criminal prosecution if landlords don’t identify an illegal tenant.”
Right-to-rent will be enforced across England, as part of immigration laws introduced in 2014
Phil Stewardson, who owns 135 properties in the West Midlands, said that local landlords were being used as “free labour” for border control. “If trained immigration officers can’t detect these people at ports and airports with their resources, how are we supposed to? We’re effectively providing immigration with a free workforce.”
The Government confirmed the national roll-out during the Queen’s Speech in May alongside plans to “make it easier to evict illegal migrants”, for example by also forcing banks to close current accounts held by rogue residents.
Who has a right to rent?
Landlords will become front‑line staff in the Government’s bid to “deal with those who should not be here” and must check tenants have the correct visa or nationality to live in England.
A British, EEA or Swiss national, for example, automatically has a right to rent. But most non-EU citizens will need a visa.
To escape penalties, landlords need to obtain original documents, check that they are genuine and make a clear copy of each document, according to the official landlords' code of practice.
f someone’s visa expires before the tenancy ends, the landlord is responsible for making sure that it is renewed. If a sitting tenant no longer has a right to rent, the landlord should notify the Home Office.
The rules apply to any tenant, including lodgers, who will be renting property as their “only or main home”, so does not apply to holiday lets or second homes, for example.
The rules won’t, however, apply to tenancy agreements in place before December 2014, or renewals of those tenancies after this date, as long as it involves the same people and there’s no break in the tenancy.
Clearer information is needed to understand exactly when a landlord will be fined if they are housing illegal tenants, however, according to the industry body, the Association of Residential Letting Agents.
Valerie Bannister of the association said: “We have requested more detail surrounding the fine of the landlord because we believe it will help others understand their obligations and what the consequences are for failing to carry out the correct checks.”
How should landlords check documents?
The Home Office runs a free "Landlords Checking Service" which lists the documents tenants can use to prove they are living here lawfully.
If someone doesn't have these documents, for example if they have an ongoing immigration application or appeal, the Home Office will undertake its own right to rent check.
Bespoke £100 “immigration checks” are already being offered by companies hoping to profit from the roll-out.
One company, Right2Rent, charges up to £13.50 per tenant for a “Verification Certificate” to show that tenants have a right to rent. It also takes on legal responsibility for making sure the tenants are here legally and promises “no unforeseen issues with the Home Office”.
Certificates issued by such companies are not official documents, however, and it is unclear if the Home Office considers using their services as “reasonable measures”.
OnBoard Pro, charging £8.50 per property, sells an online checklist that it claims guarantees a landlord can prove they have exceeded all right-to-rent checks.
“Be guided through a few simple steps to ensure you’ve made all 'reasonable inquiries’ about your tenants,” the service says. It contains information on how to verify foreign passports and check the authenticity of visas, for example.
Stephen Purvis, a former barrister who created the tool, said: “Landlords aren’t professional border officers, but we can at least give them a sufficient paper trail to show they did everything they can.”
Currently, the only way landlords can escape liability for the these checks is to pay a letting agent to take over the responsibility, and agree to this in writing.