Managing Agents and Letting Agents – Are you ready, as more changes are coming….!
As mentioned in our previous article, the changes for renting residential properties are coming thick and fast. The latest change that is due to be implemented as of the 1st February 2016 is in relation to the “right to rent” under the Immigration Act 2014.
All Landlords (and their Agents) in England and Wales will have to carry out immigration checks on all tenants and adult occupiers of properties. Any failure to do so as per the current law results in a fine of £3000.00, but this is due to change to a possible 5 year jail sentence when the current Immigration Bill 2015 goes through Parliament and receives Royal Assent.
The change is happening in just over 2 months and so Landlord’s and Agents need to familiarise themselves with what they will need to do to check their tenant’s and occupiers right to rent status.
What to Do?
- Within 28 days before a Tenancy Agreement has been entered into must confirm that the proposed tenant and all adult occupiers are either;
- British, EEA or Swiss National; or
- Have a right to rent (their immigration status is such that they have a right to live in the UK)
- Obtain the relevant documentation from the proposed tenant and all adult occupiers (passport, national identification card, permanent residence card or certificate of registration or naturalisation as a British Citizen)
- The Landlord / Agent must see the original together with the proposed tenant / occupier and take a copy (inputting the date when the check was made on the copy).
- This copy must be kept for the duration of the tenancy plus 1 year (with consideration and compliance under the Data Protection Act 1988)
- Follow up checks will need to be undertaken every 12 months (or less if the proposed tenant / occupier had a time-limited right to rent) and if the occupiers change.
- If there are no documents that can be provided but the proposed tenant / occupier maintains they have a right to rent, the Landlord / Agent can seek a Positive Right to Rent Notice from the Landlord Checking Service on the Home Office Website.
If there is no longer a right to rent, to protect themselves the Landlord / Agent MUST inform the Home Office immediately to protect themselves from incurring the financial penalty. There is no obligation currently for the Landlord to take steps to obtain possession but this may change with the Immigration Bill. The proposals under this Bill are for the ability to evict residential tenants who no longer have the right to rent without needing a Court Order, just a 28 day notice.
There is also a very fine line between carrying out the checks in accordance with the Immigration Act and not discriminating in accordance with the Equality Act 2010.The Home Office has confirmed that Landlords and Agents must show that they uniformly and consistently carry out the same checks for all adults and no assumptions are made as to a person’s background. This will mean putting in place the procedures now for all proposed tenants and their occupiers for the above information to be provided and to ensure all are required to prove the same.
There is of course a potential for action to be brought under the Equality Act 2010 if a proposed tenant believes they have been discriminated against and the truth is that until this new Law comes into force it is not going to be known how likely these types of actions are going to be and how the Courts will react to them.
With all that is going on currently relating to border controls and immigration arguments, this is just something else that will raise questions from both a practical point of view but also an ethical one.
The information contained in this article is for general guidance only and is not intended to be legal advice. Professional advice should always be taken on the application of the law in any particular situation.