News & Views

An immigration reminder


Although this legislation was brought in on 1 February 2016, landlords need to be reminded that they must check the immigration status of their tenants or licencees.

Landlords must check under the Immigration Act (sections 20-37 and Schedule 3) the status of prospective tenants and other authorised occupiers before a residential tenancy is entered into, “right to rent” checks.

Landlords must also make sure that someone’s right to occupy the residential premises does not lapse due to a change in their immigration status (i.e. they have a “time-limited” right to rent), which is an even more onerous obligation. In that situation, the check must be made both within 28 days of the tenancy being entered into and before the time-limited right to rent expires or once 12 months has passed, whichever is later. Failure to comply with the legislation could lead to a civil penalty of up to £3,000. There are exclusions including certain student accommodation and long leases (where a right of occupation for a term of seven years or more is granted).

A person may not occupy residential property in the UK if they are not a “relevant national” which is a British citizen, a national of an EEA state or Switzerland or they do not have a “right to rent” in relation to the property –i.e. if they require leave to enter or remain in the UK and do not have it, or they have leave, but it is subject to conditions that prevent them from occupying the residential premises.

The legislation also applies where a residential tenancy grants a right for other individuals to occupy along with the named tenant, i.e. family members who are disqualified as a result of their immigration status. However, in that situation, there is a contravention only if reasonable enquiries were not made of the tenant before entering into the tenancy as to the relevant occupiers, or reasonable enquiries were so made and it was, or should have been, apparent from the enquiries that the adult in the question was likely to be a relevant occupier.

The Act applies not only to the landlord who entered into the residential tenancy, but also potentially to the person who is the landlord under the tenancy at the time of the contravention i.e. the successive owner. So where a landlord transfers its interest subject to a residential tenancy, the new landlord will become the ‘responsible landlord’ for any contraventions of the requirements. If the tenant has the right to rent at the time the residential tenancy was granted by the original landlord, but subsequently lost that right and follow-up checks were not conducted, it will be the landlord at the time the breach is identified who will be the ‘responsible landlord’ for the purpose of a penalty. The new landlord must therefore confirm with the old landlord that the document checks have been undertaken and retain evidence to demonstrate this. The new landlord must also take careful note of whether and when follow-up checks must be undertaken in order to maintain a statutory excuse. Enquiries must be made on the purchase of a residential property subject to tenants.

Landlords must exercise vigilance on this issue before residential tenancies are entered into, but should also carry out follow-up checks where the occupier has a time-limited right to rent.

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