New tenant immigration checks came into effect across the West Midlands on 1 December. Landlords in Birmingham, Wolverhampton, Dudley, Walsall and Sandwell will have to be sure that new tenants have the right to reside in the UK. Those who fail to comply face fines of up to £3,000.
We’ve summarised the basics of these new requirements so that landlords can get a better understanding of what’s coming up. The government have also launched an online “right to rent” tool which may be useful.
What is the basis for this new responsibility?
Under the Immigration Act 2014, it is illegal to grant tenancies or any other lodging arrangements to illegal migrants, and the onus is on landlords to take reasonable steps to ensure their tenant is a lawful resident of the UK.
Who does this affect?
Housing associations and private landlords are responsible for checking the immigration status of all new private tenants. As well as standard ASTs, tenants taking leases below 7 years, sublets and lodgings need to be checked.
Landlords using letting agents can place the responsibility for checking the tenants that the agents find onto them.
Who is exempt?
Some landlords & tenants are not covered by this new requirement:
- Housing associations and private landlords accepting tenants from a council
- Care homes
- Student accommodation
Also any existing or renewed agreements from before 1 December are not be affected.
What are the penalties for non-compliance?
Landlords who do not take all reasonable steps to check the status of their tenants face up to a £3,000 fine.
How do I check a tenant?
However, the language that the documents is written in does little to help make things clearer:
Where the initial right to rent checks are satisfied with a document from List B, or where the Landlords Checking Service has provided a “yes” response to a request for a right to rent check, a landlord establishes a time-limited statutory excuse. This time-limited statutory excuse lasts either for 12 months or until expiry of the person’s permission to be in the UK or the validity of their document which evidences their right to be in the UK, whichever is later. Follow-up checks should be undertaken before this time-limited statutory excuse expires, in order to maintain a statutory excuse.
We’ve had a good look at these documents, and when you cut through all the legal wording, it boils down to 4 separate questions that landlords have to answer yes to at least one of to be able to rent to a tenant. You’ll then have to obtain the original document and make a copy.
1) Does the tenant or prospective tenant have any one of the documents from this list?
- A passport (current or expired) showing 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 (current or expired) showing the holder is a national of the EEA or Switzerland.
- A Registration Certificate or document (current or expired) certifying permanent residence issued by the Home Office, to a national of an EU country, EEA country or Switzerland.
- A Permanent Residence Card, indefinite leave to remain, indefinite leave to enter or no time limit card issued by the Home Office, to a non-EEA national the family member of a national of a EU country, EEA country or Switzerland.
- A valid Biometric Residence Permit issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK.
- A passport (current or expired) 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 no time limit on their stay in the UK.
- A valid immigration status document issued by the Home Office to the holder with an endorsement indicating that the named person is permitted to stay indefinitely in the UK or has no time limit on their stay in the UK.
- A certificate of registration or naturalisation as a British citizen.
2) Does the tenant or prospective tenant have any two of the documents this list?
- A full birth or adoption certificate issued in the UK, the Channel Islands, the Isle of Man or Ireland, which includes the name(s) of at least one of the holder’s parents or adoptive parents.
- A letter issued within the last three months confirming the holder’s name issued by a UK government department or local authority and signed by a named official (giving their name and professional address) or British passport holder (giving their name, address and passport number) or issued by a person who employs the holder (giving their name and company address) confirming the holder’s status as an employee.
- A letter from a UK police force, issued within the last three months, confirming that the person is the victim of crime, personal documents have been stolen and stating the crime reference number.
- Evidence of the person’s previous or current service in HM armed forces.
- HM prison discharge papers or a probation service letter.
- A Disclosure and Barring Service certificate issued within the last three months.
- A current full or provisional UK driving licence (both photocard and paper counterpart must be shown).
- Benefits paperwork issued by HMRC, local authority or a Job Centre Plus, issued within the last three months.
- A letter from a UK further or higher educational institution confirming the holder’s acceptance on a course of studies.
3) Does the tenant or prospective tenant have any one of the documents from this list?
- A current passport endorsed to show that the holder is allowed to stay in the UK for a time limited period.
- A current Biometric Residence Permit issued by the Home Office to the holder, which indicates that the named person can currently stay in the UK for a time limited period.
- A Residence Card or a Derivative Residence Card issued by the Home Office to a non-EEA national who is either a family member of a national of an EU country, EEA country or Switzerland or has a derived right of residence in the UK under EU law for a time limited period.
- A valid Immigration Status Document issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK for a time limited period.
4) Does the tenant or prospective tenant have an ongoing immigration application or appeal to the Home Office?
As you can see, many of the documents that these questions refer to are obscure and most landlords will never have seen one, let alone be able to tell if a proffered document is valid or even real. What’s more, it seems that only original documents can be checked, not even certified copies can be accepted, this will slow the whole process down even further as documents make their way through the post or tenants and landlords try to arrange a time to meet up.
This new legislation places a significant burden on landlords, facing them with heavy penalties for not understanding the hideously complicated issues of immigration and residence status, which often baffles the government and immigration professionals. As a result, it is more than likely that we’ll see landlords ignore potential tenants whose right to reside in the UK is not glaring obvious as they’re afraid of falling foul of the new law, or simply do not wish to wait for the time it will take to check the relevant documents.
Image: All mine by Baigal Byamba, licensed under Creative Commons