Landlords’ duty to check tenants’ immigration status will become UK law

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
13 August 2015

The Immigration Act 2014 prohibits anybody who does not have valid leave to enter or leave to remain in the United Kingdom from renting residential accommodation from a private landlord.

It imposes obligations on private landlords to carry out “right to rent” checks prior to agreeing to a lease, and inflicts serious penalties on landlords who fail to conduct these checks, or who agree to let out their properties to such persons regardless.

The act became law exclusively in the West Midlands from 1st December 2014 as a pilot scheme and it was announced on Monday 3rd August that the act would be made nationwide this autumn.

What does this mean for Landlords?

Landlords across the United Kingdom, prior to agreeing to a lease, must ensure that they do as follows:
(1) Check whether the prospective tenants are British, Swiss or EEA nationals. If so, there is no need to take the below steps;
(2) Obtain original versions of the tenants’ identity papers, for example a passport, residence card, birth certificate or other biometric immigration document;
(3) Check the documents in the tenants’ presence; and
(4) Ensure that they keep a copy of the documents obtained on file as evidence of the check.

The landlord is also under an obligation to conduct these checks on a 12 monthly basis.

If the landlord is unable to produce evidence that he has conducted these checks, he could be liable to a fine of £3,000. Repeat offenders could be sentenced to imprisonment. It has also been suggested that Councils will maintain databases of landlords who are repeat offenders and that the Council’s will be given the power to prohibit such landlords from entering into tenancies within the district.

What does this mean for foreign nationals who are in the UK without status?

The new rules will only apply to new tenancies, entered into after the enactment of the above act. This means that if you are already renting accommodation in the UK and at the expiration of your current lease you will be renewing your tenancy on the same terms, the landlord will not be obliged to conduct the checks and will not be at risk of incurring a penalty.

However, individuals without legal status in the UK who need to enter into a new tenancy or wish to vary the terms of an existing tenancy will no longer be permitted to rent privately, and landlords will no longer be able to do so without committing an offence. Instead, you will have to find accommodation either at a refuge, hostel or at accommodation otherwise provided by the government specifically for individuals who are without status in the UK.

Importantly, the new provisions will apply to any occupier of a property whether or not they appear on the tenancy agreement. This means that landlords will incur the same penalty even if the person without status is simply a lodger or adult occupier, so will be obliged to check the documents of everyone staying in their property.

What does this mean for foreign nationals whose application or appeal is pending?

Ministers have suggested that these measures will permit landlords to evict tenants without an order of the court. This is particularly concerning for individuals who have otherwise been legally residing in the UK pending an appeal or application which is then refused, and so their immigration status in the UK changes mid tenancy. It is unclear at this stage whether suitable guidance will be published to advise landlords who are faced with this situation. If individuals are suddenly to be evicted from their homes without anywhere else to turn, the government risks tenants resorting to desperate measures.

We should be hopeful that comprehensive guidance will be published by the Home Office to advise Landlord’s on the circumstances in which individuals are legal or not in the UK else it is feared landlords will both evict and refuse tenancies without justification or reason.

Emily Elvin-Poole
Trainee Solicitor