New House of Commons Library briefing on the forthcoming duty for private landlords to carry out immigration checks

Ahead of the introduction of a pilot scheme for landlords to carry out immigration checks on tenants, the House of Commons Library has released a useful new briefing note on the subject.

You can read it in full below.

The pilot scheme will begin in five West Midlands council areas on 1st December 2014.

Image credit: UK GovernmentAs noted by the House of Commons Library report, Section 22 of the Immigration Act 2014 will require landlords (or their agent) to check a tenant's immigration status by viewing original immigration documents of the applicant. In addition, landlords will need to make copies of the documents and keep the copies for 12 months after the tenancy expires.

Section 34 of the Immigration Act also states that landlords must "take steps to verify … the content of a document obtained in accordance with the order."

New today from the Home Office is a 68-page guide on how to detect basic forgeries in identity documents. It can be downloaded from https://www.gov.uk/government/publications/recognising-fraudulent-identity-documents.

A Home Office communication published by the West Midlands Strategic Migration Partnership here states "landlords and their agents will not be expected to be immigration or forgery experts and they will not be penalised if they are misled by a skilful forgery, provided they record that they have performed the necessary checks," though it does not expand on the definition of "skilful".

The Chartered Institute for Housing (CIH) said in a briefing earlier this month that while larger landlord businesses may be able to cope with these checks, it is concerned that the vast majority of landlords who have only one property will face difficulty in complying with them.

CIH expressed strong reservations about the practicality of the new checks and their potential impact on the housing options for migrants and others.

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HOUSE OF COMMONS LIBRARY

Private landlords: duty to carry out immigration checks

Standard Note: SN07025

Last updated: 14 November 2014

Author: Alex Bate

Section: Social Policy Section

This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required.

This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public.

As part of the Government's attempts to cut down on illegal migration, the Immigration Act 2014 contains a number of measures to restrict access to services for those without a valid right to remain in the UK.

One of these measures is a new requirement for private sector landlords to check that tenants' immigration status does not disqualify them from renting property. As a result, landlords who allow tenants without a so-called 'right to rent' to occupy their property will be liable for a civil penalty.

Given the additional burdens this is expected to place on landlords, the policy has proved controversial within the private rental sector, with a number of concerns raised by landlord associations at the consultation stage. Consequently the scheme will be piloted in five West Midlands council areas from 1 December 2014 before it is implemented across the UK.

This note explains the law in relation to these 'right to rent' checks and the new obligations for private sector landlords set out in the Immigration Act. The note also considers some of the concerns raised by landlord associations and sets out details of the 'pilot' testing of the policy.

Contents
1 Background
2 What will private landlords have to do?
2.1 Carrying out checks
2.2 Reporting to the Home Office
2.3 Avoiding discrimination
2.4 Agencies and fees
3 The pilot scheme
4 Landlords' reactions

1 Background

In the summer of 2013 the Home Office consulted on proposals to require private landlords to carry out "simple checks on people who want to rent accommodation, to make sure that they are entitled to be in the country." [1] Home Secretary Theresa May argued this would "make it harder for landlords to house illegal immigrants and harder for illegal immigrants to settle in the UK." [2] This proposal has since been approved by Parliament as part of the Immigration Act 2014. It is subject to a pilot programme in the West Midlands from 1 December 2014, with plans to roll out the 'right to rent' checks across the UK in 2015.

Social housing providers are already expected to check the immigration status of their tenants and therefore are not affected by this legislation. It will instead apply to rooms or properties rented to private tenants, or rooms that are sublet within a landlord's own property.

Landlord associations have raised a number of concerns with the legislation (see Section 4), particularly that it will place an undue burden on their members. In response, the Government has been keen to emphasise what it feels is the "light-touch" nature of the regulation. A number of tenancies have been excluded, such as care homes, student accommodation and long leases (see Schedule 3 of the Immigration Act 2014 for the full list) [3]. In addition, breaches will make the landlord liable for a civil penalty, rather than the criminal penalty which applies to employers who employ people with no right to work in the UK.

Other concerns are that landlords will not have the resources or knowledge to properly check immigration documents. The Home Office has therefore committed resources to provide suitable information to landlords and to offer a checking service for more complicated immigration cases.

As well as those from landlord associations, the Joint Committee on Human Rights has also raised concerns around potential for the legislation to lead to discrimination against prospective tenants (see Section 2.3). [4] In response, the Government has produced a code of practice for landlords on how to avoid unlawful discrimination when conducting the right to rent checks. [5]

2 What will private landlords have to do?

2.1 Carrying out checks

Under Section 22 of the Immigration Act 2014, landlords "must not authorise an adult to occupy premises under a residential tenancy agreement if the adult is disqualified as a result of their immigration status." The legislation does not apply to those under 18 or those not renting the property as their main home, although the Home Office's draft code of practice on the civil penalty scheme does recommend assuming the property is being let as a main home if there is any doubt. [6]

Adults are disqualified if they do not have unlimited or a time-limited right to remain in the UK, or if they have a right to remain but are barred from renting property as a condition of their immigration status.

Documents to check

In order to check a tenant's immigration status, landlords will need to view original immigration documents in the presence (or via live video link) of the applicant, make copies of the documents, and keep the copies for 12 months after the tenancy expires. The checks can take place no less than 28 days before the commencement of the tenancy agreement.

The draft code of practice sets out a list of acceptable documents to prove a tenant's right to rent, including UK, Swiss or EEA passports (current or expired), a biometric immigration document, or a residence card. [7]

For applicants whose immigration documents are held by the Home Office and are therefore not available, the Home Office has created a Landlords Checking Service. This online tool will provide an answer as to the applicant's right to rent. If no answer is received from the service within 48 hours, the landlord will have a statutory excuse against liability for a penalty.

When to carry out checks

Concerns were raised at Committee Stage that the legislation may inadvertently invalidate all existing tenancy agreements. In response an amendment was passed that means landlords only need check at the commencement of a new tenancy agreement after the legislation comes into force. [8] They will not need to check a tenant's right to rent for existing agreements.

If a check shows a tenant has unlimited right to rent, the landlord will not be required to carry out further checks prior to any subsequent tenancy renewals. If, however, the tenant has limited right to rent, landlords will have to carry out repeat checks. For example, if a tenant has leave to remain until 1 July 2018, their right to rent will expire on that date as well, and it will be the responsibility of the landlord to carry out additional checks before that date.

For tenants with limited leave to remain, they only need to demonstrate their eligibility on the commencement date of the tenancy agreement; the landlord will have a statutory excuse for a year. Even if the tenant's leave expires a day after the agreement is commenced, no follow-up checks will be required in the first year. [9]

2.2 Reporting to the Home Office

If a follow-up check indicates an occupier no longer has the right to rent, landlords will be required to report this to the Home Office "as soon as reasonably practical". However, once this report has been made the landlord is under no obligation to evict the occupier. [10]

With regards to new tenants, landlords are under no obligation to report an applicant having no right to rent to the Home Office, provided they do not allow them to occupy the property.

If a landlord rents to a person with no right to rent, or does not report the expiration of an occupier's limited right to rent, they will be liable for a civil penalty. The levels of these penalties are set out in the table below. [11]

	No breach of regulations within past 3 years	Previous breach of regulations within past 3 years
Category A (Lodgers in a private household)	£80	£500
Category B (occupiers in rented accommodation)	£1,000	£3,000

2.3 Avoiding discrimination

One of the major concerns highlighted during the consultation was the potential for discrimination. The Charted Institute of Housing argued that:

Recent migrants overwhelmingly rely on the private rented sector and already often occupy poorer quality lettings. It seems likely that if a prospective tenant is not obviously British landlords may simply reject them, given the pressures in the sector at the moment, the competition for tenancies and the potential delay if further checks are needed.

Such discrimination will be very difficult to uncover given that landlords will be making simultaneous enquiries about bank accounts, references etc. which will give them other grounds for rejecting an application. [12]

The Government acknowledged the potential risk of discrimination and has produced a code of practice for landlords, reminding them of their responsibilities under the Equality Act 2010 and the Race Relations (Northern Ireland) Order 1997.

The code of practice advises that documents should be requested from all potential applicants, and advises that rejecting a tenant on the basis of only having a limited right to rent may constitute indirect discrimination under the above-listed legislation. [13]

2.4 Agencies and fees

If a landlord wishes to use an external agency to carry out the right to rent checks, it is permitted to do so. However a written agreement between the landlord and the agency will need to be drawn up, otherwise the landlord would remain responsible for any breaches and remain liable for any civil penalties. [14]

During the Bill's Committee Stages, Norman Baker, Minister for Crime Prevention, argued that the cost to landlords would not be "particularly onerous," [15] but the Government's impact assessment estimated that agencies would increase their fees to cover the costs of implementing the checks, costing tenants an additional £17.9m over 10 years. No such estimates were made for the cost increase paid by landlords to agencies, as there is no legal obligation on letting agents to accept liability for carrying out the checks. [16]

The Committee also discussed the impact of the costs on the devolved Administrations, where Mr Baker stated he did not expect the Scottish Parliament's ban on pre-tenancy charges to be affected by these changes. [17]

3 The pilot scheme

In September 2014, Immigration and Security Minister, James Brokenshire, announced that regulations will implement 'pilot' right to rent checks in the areas of Birmingham, Walsall, Sandwell, Dudley and Wolverhampton from 1 December 2014. [18] The pilot will be evaluated in spring 2015; the plan is to roll out the checks across the rest of the country later that year. [19]

The Government said that the West Midlands area was chosen for the pilot scheme "after careful consideration." [20] A Guardian article suggests that this area was chosen because its diverse housing stock and population size would mitigate the risk that tenants would be displaced to other areas. [21]

Unlike the legislation upon full roll-out (see Section 2.1), the pilot scheme will only require landlords to carry out checks on new tenants, i.e. not on new or renewed tenancy agreements with existing tenants. [22]

As part of the consultation, the Residential Landlords Association (RLA) raised concerns that the nature of the private rental sector would mean "there is little chance of the obligation to comply getting out there to the landlord community." [23] In response, the Government has provided an information sheet for the pilot areas, and has liaised with the councils in these areas. As mentioned in Section 2.1, the Home Office has now also launched an online "Right to Rent" tool to help landlords carry out the required checks.

4 Landlords' reactions

The new measures have been controversial amongst landlords, with over half of the respondents to the Government's consultation disagreeing with the principle of the policy. [24] An RLA survey of its members found that 82% opposed the plan. [25]

The RLA asserted that "untrained British civilians" should not be expected to undertake the work of immigration officials. [26] However the National Landlords Association (NLA) was more supportive of Theresa May's argument that landlords have a responsibility to help tackle illegal immigration:

We view the policy underpinning these proposals as a positive way in which landlords can contribute towards neighbourhood cohesion and believe that this represents a recognition of the important function performed by the private rented sector in Britain today. [27]

As well as objections to the principle of the policy, landlords raised additional, specific concerns about its implementation. Previous sections have looked at concerns over the cost burden of carrying out checks, the potential for discrimination and the difficulty in informing landlords of their new responsibilities.

The RLA describe the private rented sector as a "cottage industry" which makes it difficult to easily disseminate information on new legislation, and is concerned that Home Office support for landlords may be poorly resourced. [28]

In response, the Home Office created the Landlords Checking Service to assist with enquiries, and committed it to certain service standards through the 48 hour response rule. With regards to initial dissemination of information, the Government's impact assessment has estimated it will commit £22.6m to familiarising landlords with the new rules. [29]

The Government has emphasised the "light touch" nature of the legislation, reflected in the exemptions for tenancies such as student accommodation, and the graduated penalty scale which the Government says targets repeat offending, "rogue" landlords. [30]

Some consultation responses also supported a pilot scheme to test assumptions and guard against unintended consequences. Upon the Government's announcement of the pilot scheme in the West Midlands, the Association of Residential Letting Agents (ARLA) expressed support for testing the scheme before the nationwide roll-out. [31]

(End)

[31] Property Wire, UK pilot scheme on checking tenants immigrations rights to launch in December, 4 September 2014