Following an initial trial in the North, Right to Rent checks have been rolled out nationwide affecting all residential landlords. Since February 2016 landlords are required to know their tenants in much the same way as employers are required to know their employees. In particular, they need to know the immigration status of all of their adult tenants.
So how do landlords become instant experts on immigration leave?
Some landlords are passing the responsibility to their agents in return for an indemnity. At time of writing that is untested in case law but is so prevalent across the industry that as long as everyone is professional and keeps records correctly, including of the indemnity itself, it is likely to protect the landlord should a tenant have rented without proper leave.
Alternatively, both private landlords and indemnifying agents are choosing to use Right to Rent check services. That cost is passed back to the potential tenant but, once again, it cannot be said with absolute certainty that the parties are protected by those services. The duty in law is on the landlord, whether that duty has effectively transferred to another will depend on the circumstances of each matter and, vitally, the evidence that can be produced.
There are exemptions such as commercial leases, employer provided accommodation, care homes and so on but for the majority of landlords and agents in the UK this has been an important and somewhat onerous development. A recent survey found that Right to Rent is the greatest stressor for landlords (https://landlordnews.co.uk/right-rent-named-top-cause-stress-landlords/). The reason for that is that the penalties are high if mistakes are made and the law is so new that the worry about making mistakes is real. The Immigration Act slightly improves the position offering more defences but essentially due diligence for landlords and those serving them got harder in 2016.
Practical steps and guidance
The best advice in this situation is to check with the source. The Home Office has provided numerous guidance sites to help (see site list at the bottom of this article) but the very helpful checklist that was provided on the test rollout is now out of date and we are waiting on the Home Office to review it. Guilds and Associations are also producing guides of their own that are, in the main, of more practical application than much of what the Home Office has so far published.
Landlords should download and print the guides below particularly the Code of Practice and familiarise themselves with that guidance. Agencies will be expected to have policies and training in place to show that their staff understand what is required. Placing printed guides in the staffroom to allow people to refresh can only assist with this. For more specific questions use the Landlord’s helpline 0300 069 9799. Be aware this shuts before close of day and tends to be busiest in the afternoon. We would recommend when calling that landlords make a log of the call and query, the first name of the adviser, the time and date. Carefully note any advice provided and save it to a computer and hard copy file.
In a nutshell the requirements are (unless it is an exempt situation):
- Check the original documents for inconsistencies (dates across documents; that they look like the person sitting in front of you etc.)
- Make a full copy of all the documents (front and back)
- Check they have met all the guidance requirements
If they do not meet the guidance at that point make further checks:
- Note the date of expiration on any leave periods
- Hold the document copies on file with the client’s consent
- Have a system in place to check back prior to the expiration date on the leave that permission has been renewed
Once you are satisfied they meet the right to rent requirements, you should go ahead with the rental procedure. It sounds so simple doesn’t it.