While the UK debates whether to stay in the EU or not Immigration checks have sneaked in at the beginning of this month for Private Landlords with a fine of £3,000 per unlawful occupier; straining the pockets of small Landlords and Agents if they are uninformed.
A trial scheme started on 1 December 2014 in the cities of Birmingham and Wolverhampton and the Metropolitan Boroughs of Dudley, Sandwell and Walsall and has now rolled out from 1st February 2016.
The Law
Section 22 of the Immigration Act 2014 a landlord should not authorise an adult to occupy property as their only or main home under a residential tenancy agreement unless the adult is a British citizen, or a European Economic Area (EEA) or Swiss national, or has a ‘right to rent’ in the UK. Someone will have the ‘right to rent’ in the UK provided they are present lawfully in accordance with immigration laws.
What needs to be done?
All new tenancies require ALL new tenants over 18, even if they are not named on the agreement, there is no agreement or if it is not in writing, to be checked. A child does not need to be checked as long you are reasonably satisfied they are under 18.
Checks have to be performed without regard to race, religion or other protected characteristics or equality grounds as specified in the Equality Act 2010 or the Race Relations (Northern Ireland) Order 1997, on all adults who will be living at the property.
The only exemptions to checks are if the accommodation is:
- Social Housing,
- Holiday Accommodation (not used as main home);
- Local Authority Housing,
- Care Homes,
- Hospitals,
- Hostel and Refuge,
- Mobile Homes,
- Long Leases,
- Student accommodation
- House Guest if not paying rent and not living there as main accommodation;
- and accommodation tied to employment.
It therefore covers any lease, licence, sub-lease, sub-tenancy or Lodgers agreement.
How to check
- Confirm if this will be tenant’s main home.g they will be there the majority of the time, most belongings there, registered at doctors there
- See original documents allowing tenant to remain in the country; check their photographs on the documents, names, date of births and confirm as far as possible if they are genuine and valid;
- Make and keep copies of all documents. Ensure it is a good quality copy, for passports copy every page, both sides of biometric card, record dates on all documents and keep then for at least 1 year after the tenant leaves the accommodation. If the tenant states the Home Office has their documents, check online (https://www.gov.uk/landlord-immigration-check) and you should get a reply in about 2 days. (See Annex for Example).
- Further checks needed :If the tenant has time restrictions to stay in UK, you have to check again either at the time of expiry or 12 months (whichever is later). If they do not have the right to remain you have to tell the home office (https://eforms.homeoffice.gov.uk/outreach/lcs-reporting.ofml) and can evict BUT the correct procedure needs to be followed.
Fines – what are they and who is liable?
If the checks have not been done, you can get a Civil Penalty of £3000 per occupier in the Accommodation under s23 of the Immigration Act.
The amount is determined by following the steps below:
In regards to who is liable to pay:
If an agent is managing the property or asked to do the checks they would be liable for any fines; unless he warns the Landlord beforehand of potential contraventions prior to agreement being signed.
- If the property has been sublet then the person subletting is responsible unless he passes this on to the “head landlord”.
- If a landlord acquires properties with sitting occupiers, the new landlord should confirm with the transferring landlord that document checks have been undertaken and retain evidence to demonstrate this. Careful note should be taken of whether and when further follow-up checks must be undertaken to ensure a statutory excuse against a penalty is maintained.
If you pay within 21 days you can pay a sum 30% less.
Defences
S24 (and s26 for Agents) do give some defences to the fine.
If there is a penalty issued a landlord may object (within 28 days) on the following grounds:
- they are not liable to pay the penalty (for example because they are not the landlord of the disqualified person) or
- they have a statutory excuse (this means that they undertook the prescribed document checks and made any necessary reports) or
- the level of penalty is too high (this means that the Home Office has miscalculated the amount of the penalty by reference to the wrong criteria)
Statutory excuse
There are 3 steps involved in establishing and maintaining a statutory excuse against liability for a civil penalty:
- conduct initial right to rent checks before authorising an adult to occupy rented accommodation
- establish the adults who will live in the property as their only or main home
- obtain original versions of one or more of the acceptable documents for adult occupiers
- check the documents in the presence of the holder of the documents7
- make copies of the documents and retain them with a record of the date on which the check is made
- Conduct follow-up checks at the appropriate date if initial checks indicate that an occupier has a time-limited right to rent
- make a report to the Home Office if follow-up checks indicate that an occupier no longer has the right to rent
If following the objection the matter is still decided against them, they can then appeal to the courts in 28 days.
Help with Checks
To help you do the checks or information for the checks:
Government Landlord’s helpline
0300 069 9799
Monday to Thursday, 9am to 4:45pm
Friday, 9am to 4:30pm
Or on the extensive Code of Guidance (https://www.gov.uk/government/publications/right-to-rent-landlords-code-of-practice/code-of-practice-on-illegal-immigrants-and-private-rented-accommodation-for-tenancies-starting-on-or-after-1-february-2016#annex-a-list-of-acceptable-professional-persons)
