I am grateful to Immigration and Eligibility expert Sue Lukes who has kindly written this post explaining the new immigration rules to us.
In September the government finally announced how it is to pilot the proposals in the 2014 Immigration Act that will require some landlords to check the immigration status of some people who occupy their property.
Cue sighs of relief from anyone who has no homes to let in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton which will be the pilot areas from December 1st 2014.
The pilot will run for six months, a report will be considered and then rollout elsewhere will be considered.
So nothing will happen elsewhere until late 2015 at the earliest (and there is an election in between which offers new ministers the chance to bury the whole thing quietly if they wish).
Which lettings will be affected in these areas?
There are a lot of exemptions, but the new rules will affect all new tenancies, licences, sub-lets, lodging arrangements and leases of under 7 years in the five areas.
Renewals of existing agreements are not affected.
A lot of the material produced by the government refers to tenancies, but in fact all new residential arrangements where rent or an occupation charge is paid are affected unless exempt.
Lettings which are not residential, for example holiday accommodation, are not covered: the Home Office guidance suggests that any rentals for three months or more would not be considered holiday accommodation.
Which lettings are exempt?
Lots!
Housing provided by local authorities through homelessness or allocations procedures.
In the Act this is unhelpfully called “social housing” but actually any new lettings by housing associations or registered providers in the area are covered, unless they are made on nomination or referral by a local authority or as a transfer of an existing social tenant.
So if a council accepts a family as homeless and refers them to private rented accommodation as temporary or permanent housing then that letting is exempt. But if a council advises a family to apply direct to a landlord (to avoid the homelessness procedures) then that letting will not be exempt.
Care homes
As defined by the Care Standards Act 2000 in England and equivalent legislation in Scotland, Northern Ireland and Wales
Hospitals, hospices and other healthcare provision
These are all defined in a schedule to the Act and include any accommodation provided by some NHS bodies because of duties they have towards the prospective occupants. So this might cover hostels for people recovering from illness, but it would not cover nurses’ accommodation.
Local authority provision for the homeless
(Other than those to whom the authority has a duty which is already covered above): this presumably may include some rough sleeper projects
Hostels and refuges
A hostel is defined as
- a place offering non self-contained accommodation and board (or provision for food preparation) that is run by a registered housing association,
- a charity or a voluntary organisation, or
- is run on a not for profit basis and funded at least partly by a government department or agency or local authority.
Examples include bail hostels, night shelters or similar. A refuge does not have to be non self-contained, should be run on the same basis as a hostel, and be for people fleeing violence or abuse.
Home Office accommodation for migrants.
The Home Office provides accommodation for people claiming asylum and certain other migrants, via contracted suppliers
Mobile homes
As defined by Mobile Homes Act 1983
Tied accommodation
Provided by an employer to an employee or trainee
Student accommodation
Where this is in
- a hall of residence,
- a home provided via a nomination by an educational institution or
- in a building used mainly for student accommodation and managed by an educational institution or similar or a charity
Which occupants are covered?
The short answer is all adults, including
- Those liable to pay rent or occupation charges
- Anyone else authorised to live in the accommodation by the agreement
- Anyone else living in the accommodation even if not named in the agreement if the agreement allows it. So this would cover, for example, a partner or friend who moved in after the agreement, unless the landlord can prove that “reasonable enquiries” were made about who would be living in the home before the person moved in and so s/he did not know that they were there. “House guests” are covered if it is their current home.
To be continued next week when we will be looking at how the scheme will work.
Sue will be speaking about these issues at the Landlord Law Conference on April 14 at Cambridge.
She also provides training for organisations (such as local authority officers) via our training company Easy Law Training – click here to find out more.
I phoned up the guy at the CLG with the responsibility for guiding this pilot through. We got off on the wrong foot when I described the scheme as the ‘Landlords as immigration inspectors scheme’, a name he took great exception to ha-ha
But even he placed emphasis on the notion of the pilot expiring around the time of the next election, which I took as the telephone call version of a nod and wink, so I doubt he has much faith and the poor landlords of the west Midlands will be wasting their time with this cockeyed idea, which will merely encourage the worst landlords to offer the worst homes to the most desperate.
The law potentially discriminates against those full time students who are taking part of their course abroad during the year. It is currently a requirement that you not only photocopy documents, but you have sight of them WITH THE APPLICANT PRESENT. This advice was given by the government helpline.
No landlord is going to take the risk of sending the tenancy agreement abroad on the basis of when they see the student on their return to the UK their documents will be in order. If they are not in order you have an illegal tenant with a signed agreement.
No landlord is going to wait until they return later in the year before signing the agreement, if another student comes along who can be present when checking documents.
It is unlikely that the student would be in a position to return from abroad to be present when their documents are checked.
Long distance landlords managing their own property(s) also now have a problem. They will have to travel either from abroad or across the country to check the documents with the student(s). Challenging if you have to go back and forth over the year with a larger portfolio. Presumably landlords will cost this additional time and money into their rents?
The law needs to be changed so that it is only necessary to have copies of documents without the need for a student to be present or the student could be viewed on Skype etc with their documents to hand before sending copies to the landlord.
Alternatively universities should have to confirm to a private landlord that a student is on a full time course for the duration of the tenancy. The university has already checked their immigration status, so why duplicate the process and ask private landlords to check again.
The government helpline said that in time they expect companies to emerge who will confirm the immigration status of a potential tenant – difficult if students have to be present. A further cost that will no doubt put up rents.
In answer to the point on students: there was a strong student lobby during the passage of the ACt and there were some concessions amde as a result.
1. where lettings are organised by the university they are exempt so the student from abroad could ask for the college to do that
2. The personal contact can be via “live video link” which is maybe the Home Office way of talking about what we know as skype. But the documents have to tbe the originals or certified copies so that is difficult
3. The code does say that if the person is abroad then the checking process can be done when they move in, rather than when the agreement is made and this will be OK. I would say that any landlord doing this would be well advised to look for paper proof that the person was abroad at the time.And of course the problem is that when the check is done when the tenant arrives to move in, if he fails the check then the landlord has a vacancy he needs to fill and the tenant is homeless and has lost his deposit.
But the point illustrates that this is a messy, ill-conceived and probably counterproductiuve piece of legislation
There is no mention in the guidelines of certified copies being acceptable. In fact it specifically states in bold that they must be the original documents.
This may seem simple for most local agents but it will cause a massive headache for us because our viewing bookings, tenancy administration and physical viewings are carried out by three different areas of the business in different locations (one of those functions is also partly out-sourced).
And on your last point: yes indeed the government expects a new market to develop in checking tenants or using agents. In fact, it estimated the size of the market when it looked at the potential costs of the proposals.
Astonishingly, it actually put them is as a positive cost to be netted off against the implementation of the Act (which will be expensive: advice lines and enforcement are).
Actually, what will happen of course is that the costs will be passed on to tenants who will have to pay more rent. And the public purse will pay twice over: once for the new enforcement costs and once for the increased rents which will actually drive up the costs of housing benefit for everyone because they will be reflected in an increase in the local housing allowance rate payable.
And that does not take into account the indirect effects of increased rough sleeping, the boost to the bottom end of the housing market (more social and enforcement costs there) and the extra demand on local authorities from people who landlords turn away but still need housing and may be eligible for help.
So, we can all continue to apply for bank accounts and mortgages with properly certfied copies of a passport, but this is no longer sufficient for renting a property where a landlord must now check the orignal in the presence of the holder or via a live video link.
The guidance also states that you must meet them in person in order to check that “the person presenting them is the prospective occupier,”. How you are supposed to do that if they are using two combined documents from List B which do not contain a photo? (e.g. Beneifts paperwork and a letter from Universtity?
This is utter nonsense!
I use an agency and they sent round a very nice young Romanian couple , he had a good job, she wasn’t working and planned to get married next year. Can anyone tell me who is directly responsible for complying with section22 of new Immigration Act , me or the Agency ? The agency assure me they won’t pass off a dud tenant and do stringent checks as usual for guarantors , referees etc… But don’t seem to know much about the new act , except to remind me I can’t discriminate on grounds of ethnicity as they have a right to roam .
But. A quick glance at Home Office guidelines paints a different picture !
How can I be sure of covering my back short of refusing them without giving a reason . Aren’t we returning to the days of ” No Dogs , No Blacks , No Irish ‘. .? Such a shame that red tape could make me hesitate over offering a tenancy to a hard working couple .
Any thoughts please. ?
Steve: you really do not need to worry! First, unless you are renting the property in the West Midlands areas covered by the pilot the law does not apply to anywhere else and will not do so until the pilot has run and been evaluated. And as Ben says, it may not be rolled out at all, and if it is it will only apply to new lettings. Second, Romania is in the EU and all lettings to EU citizens are exempted anyway. But your post illustrates the problem: a lot of landlords are worrying unnecessarily, and a lot of good tenants may find it very hard to get decent housing as a result