Tenancy Agreements 33 days of tips – Day 6 – right to rent

Or landlords as immigration officers

When I first did this series in 2010 this did not exist.  It is a new set of regulations that were first introduced in 2016.  So what are they then?

The new regulations are based on the fact that not everyone has a right to rent in the UK.  So before renting a property to a tenant, a landlord must check to make sure that the applicants – and everyone who will be living in the property with them, whether they are a tenant or not – do have a right to rent.

Note by the way that at the time of writing the regulations only apply in England.

How to do the checks

The checks are done by inspecting documents.  These must be the original documents and the landlord must do this in the presence of the applicant and have the original documents before him.

The rules do provide for the applicant to be present electronically eg by Skype – but only if the landlord has the original documents before him.  As the reason the applicant can’t attend in person will normally be because they are abroad, they will have their paperwork with them.  So in virtually all cases, the check will need to be done in person.

Inspecting the documents

The best document is a passport.  If this is not available there are others you can check.  There are two types of documents:

• List A where you only need to see one of them, and
• List B where you need to see two of them.

I’m not going to say anything more about the documents because its all set out in the online guidance published by the Home Office.  This changes from time to time so always refer to the online version – then you can be sure that you are viewing the current guidance.

For example one of the guidance documents has pictures of the documents you need to check – so if your applicant has a document which looks different, this could be a forgery.  The Home Office will expect you to have viewed their guidance when making the checks so if you allow someone in with a document which is obviously different – they may hold you to be in breach of the rules.

So don’t make paper copies.  Always use the online version.

Spotting illegal immigrants

The law does not expect you to carry out a forensic examination of the paperwork.  Provided the documents look right and appear to be the same as in the government guidance, you will be OK even if they are actually forged.  There is case law which confirms this.

However, you do need to be vigilant. For example:

• Make sure there are no discrepancies and that all the dates match
• Check that the photo ID (if any) looks like the person before you
• Be suspicious if the paperwork is very crumpled – is this to disguise the fact that it is forged?
• Be suspicious if the property is too large for the number of proposed occupants – are they going to bring in more people later?  You need to ask them about this (and keep a record of their answer)
• Etc

Note that in some circumstances, if no documents are available, you can check the applicant’s immigration status via a government checking service.  You will find out more about this with the online guidance.

Keeping a record

If you have done a proper check, then if the Home Office, later on, find out that the tenants or occupiers DON’T have a right to rent – you will be protected.

However if you have let them in without checking first, you will be vulnerable to a penalty fine or can even be prosecuted and sent to jail.  So make sure you do the check before they are let in.

You need to have a written record for EVERYONE living in the property who is 18 or over.  So this means carers, family members not on the tenancy agreement, etc.  Check the age of older children to see if they need to be checked or not.

Then keep a record of the check, the questions you asked and the information provided, plus a copy of the documents you inspected, and keep it safe.

You need to keep this record for the whole time they are at the property, and ideally for six years afterwards.

How your tenancy agreement can help

There are a number of ways you use your tenancy agreements to protect you.  For example:

• Have a clause making the tenancy conditional upon a satisfactory right to rent check.  Then if the tenancy is signed before the check is done, you will not be forced to let to them against the law
• List all the persons occupying the property in addition to the tenants, and have clauses prohibiting the tenants from allowing anyone else to live there – then if the Home Office find other people living in the property, they can’t blame you for it as you will have done all you can to prevent it
• Add ‘data protection’ clauses notifying the tenants that you will be retaining copies of their documents and information and also that you may be obliged to pass this over to the Home Office if they require

Getting more information

I did an earlier post on this blog here.  Obviously, you need to read the Home Office online guidance carefully.  I have not been able to cover everything in this post or it would be too long!

I also have guidance on my Landlord Law site, along with a checklist you can use, plus our English tenancy agreements include right to rent-related clauses to protect you.

Is it worth it?

All of this is a lot of bother for landlords and generally, the regulations have caused a lot of disruption.  There is evidence starting to come through that shows that many landlords are now discriminating against applicants who are not able to produce a British passport (including British citizens who don’t have a passport).

When we learn that very few illegal immigrants have actually been deported as a result of this procedure, this does beg the question – is it really worth it?

There are calls for the whole procedure to be scrapped.  However having invested such a lot of time and energy in setting it up, particularly in the current anti-immigration climate, this is unlikely to happen.  So landlords will have to put up with it. Or employ an agent to do it for them.

Next time we will look at issues relating to the parties to the agreement.