The Immigration Act 2014 introduced the 'Right to Rent' scheme to the private rental sector. The scheme is part of a bigger plan implemented by the British Government to crack down on illegal immigration in the UK.
The Right to Rent scheme requires landlords and letting agents to check the immigration status of their prospective occupiers at the outset of a tenancy as well as during the tenancy. The scheme was implemented across England from 1 February 2016. It applies to all residential tenancies.
Establish and verify
Landlords and letting agents are now required to establish that a tenant has a valid immigration status in the UK, and to verify that the tenant's immigration documents are on the published Home Office list.
If a landlord discovers that a tenant has lost or is about to lose their right to rent status, or if the tenant's leave expires during a tenancy term and necessary steps are not taken to extend it, the landlord must notify the Home Office that the tenant has had a change in circumstances. Furthermore, the landlord will be obliged to take action to remove the tenant from the property.
Landlords are required to conduct these checks regularly to ensure that every occupier in the property aged over 18 has a valid right to remain in the UK.
Consequences of not complying
From 1st December 2016, it has been a criminal offence to rent a property to a tenant without verifying that they have a valid immigration status. Landlords could face a prison sentence of up to five years and/or a fine for non-compliance.
There is a defence for a landlord who has taken reasonable steps to end the tenancy within a reasonable period of time, but the introduction of a criminal offence seems draconian. In most cases, landlords do not have the resources or the desire to check potential tenants; but with the introduction of this criminal offence that may quickly change.
Some letting agents are familiar with the new rules and can help with the checks, but they may want this extra work to be reflected in their fees.
Potential for discrimination
It is widely believed that the increased penalties faced by landlords under the scheme are likely to lead to discrimination in access to housing. The scheme potentially exposes migrant tenants to homelessness and encourages discrimination against ethnic minorities, i.e. anyone who does not sound or look British.
Some landlords may not be able to understand visa categories, and non-straightforward situations could lead to unwitting discrimination. While the intention to cut down on illegal migration is admirable, the consequence of this draconian criminal punishment risks exposing legal migrants to undue hardship.
We have seen situations where clients have been approached by overly cautious landlords requesting evidence of their visa extensions well before the visa expiry date, and threatening to terminate the tenancy agreement unless the new visa is provided immediately.
There are complexities to the timing of visa submissions which prevent applicants from submitting before a certain date. However, provided an applicant has submitted a valid visa application before the expiry of their current visa, they have a legal right to remain in the UK until the application is determined. This is important to note to avoid rendering someone homeless while they legally still have a right to remain in the UK.