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Update:  Landlords must now check that a tenant or lodger can legally rent a residential property in England if the tenancy starts on or after 1 February 2016

From 1 December 2014, landlords letting property to tenants in the West Midlands area had to check that the tenants had the right to be in the UK. David Cameron recently announced that he will roll this out nationwide to ensure that people have the ‘right to rent’. Landlords could face fines of up to £3,000 per tenant if they fail to perform the required checks.

Why place this burden onto landlords?

These changes have been brought in under the Immigration Bill 2014 as part of a number of measures to reduce the numbers of illegal immigrants. The aim is to make the UK less attractive for illegal immigrants because they would have no legal right to rent. The government also plan to crack down on rogue landlords who cram their houses full of illegal immigrants and do not provide those tenants with adequate living conditions.   The penalties will act as a financial deterrent. The government also hope that housing stock will be freed up for legal residents of the UK.

The Rules landlords have to comply with

The Rules for the nationwide scheme have not yet been released but they will likely be similar to those set out for the West Midlands pilot scheme. There, landlords have to check the immigration status of all new tenants by checking their identification and visa documentation. The Home Office have also set up a simple checking service to establish whether a prospective tenant has the right to rent.

These checks must be performed on all new tenants even where the landlord thinks that the tenant is an immigrant. This is to stop there being any accusation of racial discrimination.

There are exceptions to the rule for categories of tenants where their status does not have to be checked. This is usually because a check has been performed by another authority.

I do not intend to list all the exceptions here but some common examples are: student hall of residence, accommodation provided by Universities/Colleges, Care Homes, Hospitals, Hospices and accommodation provided by various social housing. If you are a landlord with a property that is not the usual type of house or flat, you should check with the Home Office to see whether these rules apply to you.

Guidance for landlords to Avoid a £3,000 fine

The Government has saddled landlords with the unfortunate burden of policing the immigration status of tenants looking to rent properties. This is a difficult task because tenants may have a legal right to reside in the UK for a limited period of time and then they might stay illegally beyond that set period.

In order to avoid fines of up to £3,000.00 all landlords should:

• Check with the Home Office whether these rules apply to their rental property (if they are not sure).
• Take copies of Passports, National Identity cards, Residency cards or Certificate of Registration or Naturalisation provided by tenants. Copies of these documents should be kept to show compliance with the original documents being returned to the tenants.
• If the tenant has no documents available then you should contact the Home Office to use their checking service. The Home Office should confirm within two working days whether or not that tenant has the right to rent in the UK.
• If the initial checks show someone has a right to rent for a limited period, you should perform a follow-up check at the end of that period.
• If you become aware that the tenant does not have the right to rent or that right of rent has expired, you should contact the Home Office immediately.
• Landlords do not have to evict a tenant simply because an existing tenant does not have the right to rent. If you were to evict without taking the proper steps, you may be liable to pay damages to the tenant for unlawful eviction. Instead, you should inform the Home Office immediately if you know, or suspect, the tenant does not have a right to rent.

I would hope that if landlords demonstrate that they have done their best to comply with the new rules, the Home Office would not impose a fine. That remains to be seen.

More information about the nationwide ‘Right to Rent’ scheme should be published later on this year.