Steve Wood, Wales and West chairman of the Council of the Certificated Enforcement Agents Association, offers a guide to the ‘Right to Rent’ immigration checks.
Immigration is a hot topic politically given the general election, the implications of Brexit and pressure to reduce net migration figures. For landlords, following the new Right to Rent scheme introduced in England by the government in 2016, the issue has significant implications.
There has been some controversy and debate over the common sense of the scheme and those landlords who are aware of the scheme may have less than favourable views on its cost and practicality. The scheme requires landlords who let property to carry out checks on the immigration status of potential tenants, as part of a drive to create a “hostile environment for illegal migrants”.
It was introduced to legislation by Section 22 of the Immigration Act 2014 and rolled out in England just over a year ago. The Government now intends to launch “right to rent” throughout the UK, although a date for this has yet to be determined.
The law says that landlords must not let their properties to those without permission to live in the UK. Those who do could face a fine of up to £3,000 — or even imprisonment. So if you are renting out a property, you are responsible for checking if your tenant has the Right to Rent. To have this right, they must be present lawfully in accordance with immigration laws. All tenants or lodgers aged 18 and over must be checked, regardless of whether the tenant is named on the tenancy agreement or not and even if there is no tenancy agreement, or it isn’t in writing.
It’s also important to note that it’s deemed discriminatory and illegal to only check tenants that you think aren’t British citizens. All tenants, regardless of perceived nationality, must be checked.
So how do you, as a landlord, check your potential tenants’ Right to Rent?
The first step is to establish the adults who will live at the property as their only or main home. Next, you will need to ask for original documents that prove they can live in the United Kingdom. You will need to check that these documents (in the presence of the holders of the documents) mean they have the Right to Rent and make follow-up checks after 12 months or when the right expires. The landlord of a residential property is obligated to carry out the Right to Rent checks. As the checks are extensive and quite complicated, as most landlords use estate agents to do them on their behalf.
If a landlord discovers that their tenant does not have the ‘right to rent’ under the Immigration Act of 2014 or who isn’t a relevant national, they must follow the proper legal process to evict a tenant. The new legislation passes more power to landlords, giving them the power to evict tenants who have been found to be in the country illegally. If all of your tenants fail your checks, then you can legally evict them. The recommended procedure is as follows: Firstly, arrange the surrender of the tenancy by mutual agreement with the relevant party. Secondly, serve the appropriate prescribed notice – the Notice of Eviction and End of Tenancy can be found on the government’s website – to all your tenants. This should be accompanied by copies of the Notice of Letting to a Disqualified Person from the Home Office. The occupiers should be given at least 28 days’ notice for them to leave.
Now, if the occupiers do not leave by the time their notice period expires, landlords have other options to take. They can also rely on the Notice of Letting to a Disqualified Person to apply to the district registry of a High Court to ask that High Court enforcement officers can evict the persons in questions. Enforcement agencies such as ourselves will handle the rest of the eviction once the notice is served. However, you can do also this without a court order for possession under Section 33D of the Immigration Act 2014.
The alternative course of action is to exclude the occupiers from the property peacefully after the notice period has expired, for example by changing the locks.
If some but not all of the occupiers are disqualified, then only those residing in your property without the “right to rent” need to be removed.
Here, we suggest that the first course of action should be, as above, to arrange the surrender of the tenancy by mutual agreement. The best course is to then agree with the disqualified person that they will leave the property –you can then consider reassigning the tenancy to one or more of the remaining non-disqualified occupiers.
Steve Wood is the managing director of Able Enforcements.