1

Right to Rent immigration checks:

Landlords must check status of all new

tenants, licensees or lodgers in England.

Introduction ........................................................................................................ 2

Background ....................................................................................................... 2

Summary of Right to Rent provisions ................................................................ 2

Outline of Right to Rent Scheme ....................................................................... 3

Which accommodation arrangements are excluded from immigration checks . 5

What happens with existing tenancies? ............................................................ 6

What will be treated as a new tenancy where the landlord must carry out Right

to Rent immigration checks? ............................................................................. 6

Who will have a Right to Rent? ......................................................................... 6

How will the immigration checks be carried out? .............................................. 8

What will happen to a landlord (or letting agent) who rents to someone with no

Right to Rent? ................................................................................................. 11

What will happen to a tenant/occupier where the landlord knows or has reason

to believe that they have no right to rent? ....................................................... 14

What happens if a tenant believes that a landlord or letting agent is refusing to

let to someone or to carry out immigration checks on the grounds that they are

not obviously British or an EEA national or do not have a UK passport ? ...... 18

The law: statute regulations and government guidance .................................. 18

Appendix 1: Lists of Acceptable Documents - Unlimited Right to Rent........... 20

Appendix 2: Lists of Acceptable Documents - Limited Right to Rent .............. 22

Appendix 3: List of acceptable professional persons ...................................... 23

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Introduction

This guide has been developed by Shelter’s Legal Services Team and has been updated following the implementation of the Immigration Act 2016. Changes as a result of the new Act are highlighted in red.

Background

Sections 20-37 of the Immigration Act 20141 require landlords to check the immigration status of their prospective tenants from 1 December 2014 in Birmingham, Dudley, Sandwell, Walsall and Wolverhampton or in the rest of England from 01 February 2016.

Sections 39-41 of the Immigration Act 20162 came into force on 01 December 2016 and amend the 2014 Act to make it a criminal offence for a landlord or agent to allow an adult to occupy private rental accommodation in breach of the Right to Rent conditions and make it easier for landlords to evict a tenant/occupiers who no longer have a right to rent.

Summary of Right to Rent provisions

If the tenant/licensee/lodger (and any adult member of their household) does not have leave to remain and/or is unable to prove that they have a right to remain in the UK they will not be entitled to rent or occupy accommodation privately unless the Home Office specifically grants them permission to rent. All private landlords must carry out immigration checks on all people over the age of 18 who will live in the property as their only or main home whether or not they are named on the agreement and whether or not it is a written or verbal arrangement. Any children who do not have leave to remain may be disqualified as a result of their immigration status from occupying the premises under a residential tenancy agreement but are not subject to immigration checks. If the landlord does not carry out the necessary checks, and they end up renting their property to an unlawful migrant, they will be liable to a fine up to a maximum of £3000 The landlord may face criminal prosecution where their residential premises are occupied by an adult who has no right to rent and the landlord knows, or ‘has reasonable cause to

believe’ that the adult is disqualified from renting. The Home Office is concerned to

emphasise that the government’s focus is on ‘rogue landlords and agents who deliberately and repeatedly fail to comply with the right to rent scheme and who fail to evict individuals who they know or have reasonable cause to believe are disqualified from renting.’3

In addition to the standard means of evicting tenants, alternative routes for obtaining possession are now available where a landlord has received a notice from the Home Office to inform them that they are renting to a disqualified person. These include

(1) new mandatory ground (Ground 7B) for possession for assured and assured shorthold tenancies inserted into Housing Act 1988

1 ss 20 -37 Immigration Act 2014 2 Ss 39 – 41 Immigration Act 2016 3 Para 14 Explanatory Notes to the Immigration Act 2016

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(2) new discretionary ground (Case 10A) for regulated tenancies inserted into Rent Act 1977 and

(3) where all occupiers (including children) are disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement the landlord can evict without a court order 28 days following service of prescribed Notice of Eviction and End of Tenancy. If the landlord chooses not to carry out the eviction themselves, they can apply to the High Court for a writ of possession (a warrant).

A list of the relevant statutory material and government guidance available as of 20 December 2016 is hyperlinked at the end of this briefing note.

Outline of Right to Rent Scheme

1.1 Who must carry out the Right to Rent checks?4

Every landlord for each private residential property they rent out under a tenancy

agreement, a lease less than 7 years, licence or sub-let which will be occupied

as a main or only home.

Rent includes 'any financial transaction in the nature of rent'5 and could include any services provided by the tenant in return for accommodation but does not include a contribution for food or electricity/gas which is separate from any arrangement to live there.

If an occupier lives in more than one place, then the landlord will consider factors such as how much time the occupier will spend there, whether they will keep most of their belongings there, whether they will be registered with a doctor/dentist from that address, whether their partner or children live there, or they receive post there etc.

House guests (e.g. family or friends) who do not pay rent or whose main home is elsewhere do not come within the scheme.6 However if the house guest was present at the start of the tenancy and it appeared to the landlord that it was their main home even if they were not paying rent then the landlord would be obliged to treat them as an occupier and conduct a right to rent check.7

A licensee could include someone sharing a room or even sleeping on a sofa. If they are paying rent and it is their main home, then the person granting such permission would need to carry out a right to rent check

Any letting agent who has been appointed by a landlord to be responsible for

compliance with the Right to Rent Scheme.8

Any tenant who sub–lets their home or part thereof unless their landlord confirms

in writing that they will carry out the checks themselves.

4 Code of Practice on illegal migrants and private rented sector which started after 01 February 2016 5 para 3.1 Code of Practice on illegal migrants and private rented sector which started after 01 February 2016 6 p 33 Right to Rent Documents Check: a User Guide There is contradictory guidance in the Code of Practice

but in an email to Shelter dated 22 January 2016 the Home Office accepted that the Code was incorrect and the User Guide set out the correct interpretation of the position relating to House Guests 7 s22 Immigration Act 2014 8 ss25-26 Immigration Act 2014

4

Anyone, who takes in paying lodgers, will usually be treated as a landlord in

relation to this scheme.

Some examples:

- Council tenants have the right to take in lodgers so they will be responsible

for carrying out the immigration checks on any lodger.

- If the tenancy agreement is silent as to whether the tenant can take in

lodgers or sub-let and the tenant takes such a step, then they will be

responsible for carrying out the immigration checks.

However, if the tenant approaches the landlord for permission to do so and

the landlord agrees to allow a new occupier into the accommodation then the

landlord will be responsible for carrying out the right to rent checks as the

variation is treated as a new residential tenancy.9 It would be prudent for the

tenant to check the immigration status of the new occupier before

approaching their landlord.

- Some Housing Association tenants and other private renters are allowed to

take in lodgers but only if they have the permission of their landlord.

If the tenancy agreement states that the tenant needs the landlord's

permission to have a lodger or share the property with anyone, or if it

stipulates that the specific occupiers are A, B and C and the tenant wants to

bring in D as a new occupier, they should ask the landlord to agree.

If the landlord agrees to the new person moving in then the original

residential tenancy agreement has been varied and, if so the landlord

becomes responsible for checking the new occupier’s immigration status.10

This will be the case whether or not the new person is paying rent.

If, on the other hand, the tenant asks for general permission to take in a

lodger because for instance they are struggling to pay the rent and this is

granted, then it is arguable that it remains the tenant's responsibility to check

the immigration status of prospective lodgers unless the landlord confirms in

writing that they will carry out the checks themselves.11

- If there is an absolute prohibition in the tenancy agreement on taking in a

lodger, then the tenant will have to ask the landlord for special permission

(e.g. because of the removal of the spare room subsidy). If the landlord

agrees to waive the condition and allows the tenant to take a lodger, then the

provisions in the example above apply.

9 Reg 3. The Immigration (Residential Accommodation) (Prescribed Cases) Order 2014 SI 2873/2014 10 Reg 3. The Immigration (Residential Accommodation) (Prescribed Cases) Order 2014 SI 2873/2014

11 s23 Immigration Act 2014

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Which accommodation arrangements are excluded from immigration

checks?12

holiday lets, since only private rented premises that are used as the occupier’s only or principal home are covered by the provisions

social housing allocated under Part 6 of the Housing Act 1996 (i.e. most local authority and housing association tenancies)

housing provided further to any duty under Part 7 of the Housing Act 1996. This includes where the applicant is placed in private rented sector accommodation under s.188 (1), s.188 (3) or the full s193 duty. Accommodation provided under a rent deposit/rent guarantee scheme through housing options which is not pursuant to a Part 7 duty is not excluded.

local authority tenancy granted to an existing secure, flexible, introductory or PRPSH assured tenant

tenancies covered by section 160 Housing Act 1996 (this includes succession to a secure and flexible tenancy, assignment of secure tenancies under mutual exchange or following property adjustment order following relationship breakdown)

accommodation provided as a consequence of any duty or power placed on a local authority (e.g. under sections 17 or 20 of the Children Act 1989 or s18 Care Act 2014)

accommodation provided to asylum seekers or former asylum seekers under sections 4, 95 or 98 of the Immigration and Asylum Act 1999

care homes, hospital and hospices

hostels and refuges which provide shared non self-contained accommodation whether they are managed by a public authority, housing association, voluntary organisation or charity.

mobile homes covered by the Mobile Homes Act 1983

tied accommodation

accommodation provided by a body providing vocational training to an individual in connection with that training

student halls of residence including private accommodation provided under a nomination agreement with a further or higher educational establishment.

fixed-term tenancies for a period of seven years or more that do not contain a break clause

long leases.

12 Schedule 3 Immigration Act 2014 and Code of Practice on illegal migrants and private rented sector which started after 01 February 2016

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What happens with existing tenancies?

No checks are required on tenancies:13

which began before 01 February 2016 (unless they were part of the West Midlands pilot in Birmingham CC, Dudley MBC, Sandwell MBC, Walsall MBC or Wolverhampton CC where checks began for new tenancies from 01 December 2014)

which are renewed after 01 February 2016 where the original tenancy began before that date

where the tenant succeeds to the tenancy on the death of the original tenant

which are assigned by way of property adjustment orders made by the court.

Where a landlord acquires a property with sitting tenants, and the original landlord has confirmed that the necessary checks were carried out.

What will be treated as a new tenancy where the landlord must carry out

Right to Rent immigration checks? 14

the landlord consents to the assignment of the tenancy

a joint tenancy is surrendered and a new joint tenancy is granted to one or more of the original tenants and to one or more new tenants

the landlord consents to a variation of an existing agreement to allow the right of occupation to new adults

a tenancy is granted to a person outside the UK in advance of their arrival in the UK. A landlord must carry out the checks after the tenant arrives in the UK and before providing possession of the premises.

Who will have a Right to Rent? 15

Under the provisions all adults over 18 will fall into one of four categories, those with

(1) an unlimited right to rent

(2) a time-limited right to rent

(3) no right to rent

(4) discretionary time limited permission to rent granted by the Home Office

The provisions only apply to adults. Children are exempt and can be allowed to

occupy any property. Children who turn 18 during the life of the tenancy will not need

to prove their right to rent until the landlord is required to carry out a further check.

(1) Unlimited right to rent

British citizen

13 s35 Immigration Act 2014 , and Reg 5 The Immigration (Residential Accommodation) (Prescribed Cases) Order 2014 SI 2873/ 2014 14 Reg 3 & 4 The Immigration (Residential Accommodation) (Prescribed Cases) Order 2014 SI 2873/ 2014 15 s21 Immigration Act 2014 and Para 2 Code of Practice on illegal migrants and private rented sector which started after 01 February 2016

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EEA national (regardless of whether they have a right to reside for benefit

purposes)

Swiss national

Commonwealth citizen with a right of abode in the UK

A person who has indefinite leave to remain in the UK.

A person who has a permanent right to reside in UK (e.g. family member of

EEA national)

(2) Time-limited right to rent

A person who has been granted leave to enter or remain in the UK for a

limited period. This applies regardless of the reason for granting leave, and

so includes those granted, for example;

refugee status

humanitarian protection or discretionary leave to remain

a student visa, work permit or spousal visa

A person who is a non-EEA national exercising an EEA treaty right. This

includes family members of EEA workers and those with a derivative right

to remain based on having a child in education or on being a Zambrano

carer

(3) No right to rent

No adult without evidence of leave to remain in the UK should be allowed to be a

tenant or an occupier of private residential accommodation.

(4) Discretionary Time Limited Permission to Rent granted by Home Office16

A foreign national who has been granted time-limited permission to rent.

Obtaining confirmation of permission to rent

In most cases someone who does not have leave to enter or remain in the UK will not

have the right to rent. However, in certain circumstances the Home Office may grant

‘permission to rent’ to someone who otherwise would be disqualified. The guidance

provides a non-exhaustive list which might include individuals17

with an outstanding asylum claim, Article 3 ECHR medical claim, or an

outstanding appeal against the refusal of such a claim.

whose judicial review application against removal from the UK has been

given permission to proceed and steps to enforce removal are

consequently suspended.

who have been granted bail (either immigration or criminal)

who are potential or accepted victims of modern slavery awaiting outcomes

of decisions.

who are families with minor children within the Family Returns Process

who are complying with the Home Office’s voluntary departure process -

this includes those with genuine obstacles to return

16 s21 Immigration Act 2014 and Para 2.4 Code of Practice on illegal migrants and private rented sector which started after 01 February 2016 17 For more precise details see page 9 in A Short Guide for Landlords May 2016

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Migrants who think they might qualify for permission to rent should check with

their Home Office case owner (if they have one) or when attending a Home

Office interview.

A person can also find out if they have permission by asking a prospective

landlord to go through the Home Office right to rent tool18 to check whether they

have been granted permission. The HO may send out letters confirming

permission to rent.

Any landlord carrying out such a check will need to provide the following

information about the person:

name,

current address,

date of birth,

nationality,

Home Office reference number

the address of the property they hope to move into.

An answer should be given within 2 days and could be printed out by the

landlord.

NB that landlords in this context can be homeowners or tenants who are taking

in lodgers as well as those we traditionally think of as landlords or letting agents.

How will the immigration checks be carried out? 19

Landlords are required to check and take copies of prescribed acceptable documents

in the presence of the document holder.20 Records of the date of the checks and

copies of the documents must then be kept until the follow-up check (if necessary)

and for a period of 12 months after the end of the letting agreement.21

A right to rent tool22 has been produced by the government to help landlords/letting

agents carry out a right to rent check. The landlord can also call the Landlord

Helpline at the Home Office on 0300 069 9797.

18 The right to rent tool 19 Para 5 Code of Practice on illegal migrants and private rented sector which started after 01 February 2016

and Right to Rent Documents Check: a User Guide 20 Art.4 and Sch. Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order 2014 SI 2014/2874, as amended by The Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) (Amendment) Order 2016

21 art.5 The Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order 2014 22 The right to rent tool

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Pre tenancy checks

(1) A landlord must make such checks as are necessary to ensure that a

prospective tenant has a right to rent before they can sign them up to a tenancy

agreement or let them into occupation.23

(2) If a tenant has a limited right to rent, then that check has to have been

undertaken and details recorded no more than 28 days before the tenancy

agreement is entered into.24 If for example a landlord wishes to sign tenants up

months in advance and finds that a tenant or occupier has a limited right to rent

then they would have to do a second check within 28 days before they take up

occupation.

(3) If the landlord enters into a tenancy agreement with persons outside the UK

conditional on proving that they have a right to rent, then for the purposes of the

Right to Rent scheme only the tenancy will be treated as starting on the date that

they take up possession.

(4) The tenant must show the landlord either one document from List A Group 1 or

two documents from Group 2 for an unlimited right to rent (see Appendix 1) OR

one from List B for a limited right to rent (See Appendix 2).25 Examples of

documents are included in the Landlord’s Guide to checking immigration

documents.

British citizens without passports will need to provide 2 documents/letters from

List A Group 2 in order to establish their nationality and ID. A full birth certificate

plus one other document will be sufficient. Most of these letters will be obtained

from government agencies/local authorities/employers who will have previously

established the person’s immigration status. Such documents will have to be

less than 3 months old.

A letter of testimony can be provided by an `acceptable professional person' who

is a British passport holder and who has known the ‘tenant’ for at least three

months. This letter should be signed by the professional person giving their

name, address, passport number, profession and place of work (or former place

of work if retired), how long they have known the tenant and in what capacity.

The list of acceptable professionals is attached at Appendix 3.26

(5) A landlord is also required to make similar ‘reasonable enquiries’ of every adult

occupier of the property whether or not they will be named on any tenancy

agreement.

The adult occupier will have to also show their original documents to the

landlord.

23 s22 Immigration Act 2014 24 Para 5.1 Code of Practice on illegal migrants and private rented sector which started after 01 February 2016

25 Para 5.2 Code of Practice on illegal migrants and private rented sector which started after 01 February 2016 and Right to Rent Documents Check: a User Guide 26 p31 Right to Rent Documents Check: a User Guide

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(6) If a person cannot show any of the documents on Lists A or B, but claims to have

an outstanding immigration application or appeal with the Home Office or claims

their documents are with the Home Office, the landlord can request that the

Home Office carry out a right to rent check online.27

The Home Office promises to provide a Yes or No answer within 2 days.

If the Home Office does not answer within this timeframe28 the landlord can

deem that the answer is Yes and the person has a right to rent.

(7) The landlord must keep copies of all the original documents for 12 months after

the end of the tenancy and only then dispose of them securely.

Follow up checks on persons with a limited right to rent29

If the person(s) has a limited right to rent the landlord must carry out follow up

checks before the latest of the following in order to avoid a penalty:

a) one year after the checks were last made

b) the person’s leave to remain in the UK expires

c) the validity of the person's document which evidences her/his right to be

in the UK expires

The minimum ‘eligibility period’ is therefore 12 months from the date of the

check.

If, for example, a tenant has limited leave for 3 months stamped in their

passport the landlord will not be required to carry out the necessary follow up

check until the end of the year after the last check was made even though the

leave expired 9 months earlier.

If on conducting the follow-up check the landlord discovers that the person has

made a fresh application to vary or extend their leave in the UK but has not

received an acknowledgment or their documents are with the Home Office, the

landlord is obliged to check with the Home Office.30 If the Home Office

confirms that this is correct the right to rent is extended for a further 12 months.

Where the landlord carries out the follow up check and discovers that a person no longer has a time-limited right to rent the landlord must separately report this to the Home Office in order to avoid a civil or criminal penalty (see further below).31 The notification must be via the gov.uk website or by telephone.

Further from 01 December 2016 the landlord will commit a criminal offence if an

adult occupier who has lost the right to rent after that date is allowed to stay in

occupation beyond the end of the eligibility period .i.e. after the landlord should

have carried out the required follow up right to rent check or before the end of

27 Request for a right to rent check from the Home Office 28 Para 5.2 Code of Practice on illegal migrants and private rented sector which started after 01 February 2016

29 s27 Immigration Act 2014 30 Request for a right to rent check from the Home Office 31 Para 5.4 Code of Practice on illegal migrants and private rented sector which started after 01 February 2016 and https://www.gov.uk/report-immigration-crime

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the eligibility period where the landlord has received a Home Office notice.32 The

landlord will have a defence to this charge if they take reasonable steps to evict

the tenant within a reasonable time period.33 The landlord will also commit a

criminal offence if they do not report the presence of a disqualified occupier to

the Home Office at the end of the eligibility period34 (see further below)

What will happen to a landlord (or letting agent) who rents to someone

with no Right to Rent? 35

Given the introduction of new criminal offences for landlords and letting agents who ‘know or have reasonable cause to believe’ that their premises are occupied by an adult(s) who do not have a right to rent all landlords/letting agents should be advised to seek guidance from their professional associations, a criminal law solicitor or the Home Office Landlord helpline (0300 069 9799) if they are concerned about their position.

(A) Pre grant contravention i.e. if the landlord/letting agent grants a right to

occupy to a tenant, another adult named on the agreement or any other

adult likely to live there who does not have the right to rent then they may

be liable to: -

(1) a civil penalty of up to £3000. For a landlord of rented accommodation, the first

fine is £1000 rising to £3000 for a subsequent breach. For a lodger in a private

household the fines are £50 and £500 respectively.36

It will be a defence, or ‘statutory excuse’, if they can show that they carried out the necessary checks and made reasonable enquiries to find out who will be using the property as their only or main home.

It will also be a defence for the landlord if the letting agent was responsible for carrying out the pre tenancy checks. In which case they will be liable.

There will be no ‘statutory excuse’ if the landlord

cannot provide evidence of having checked the documents before the

tenancy commenced; or

accepted a document which clearly does not belong to the holder; or

conducted a check and it is reasonably apparent that the document is false;

or

conducted a check and it is apparent that the tenant’s permission to be in

the UK has expired; or

accepted a document that clearly shows that the person does not have the right to be in the UK.

The Home Office may serve a Referral Notice on the landlord which will say that they believe that s/he has rented to a person without a right to rent. The landlord

32 S33A (1) – (3) Immigration act 2014 as inserted by s.39 Immigration Act 2016 33 s.33A (6) Immigration Act 2014 as inserted by s.39 Immigration Act 2016 34 s.33A (10) Immigration Act 2014 as inserted by s.39 Immigration Act 2016 35 ss. 22 - 28 Immigration Act 2014 and paras 6 - 7 Code of Practice on illegal migrants and private rented sector which started after 01 February 2016 ; ss.33A- 33E immigration Act 2014 as inserted by ss.39-40 Immigration Act 2016

36 S 22 (4) Immigration Act 2014 and Para 7 Code of Practice on illegal migrants and private rented sector which started after 01 February 2016

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will be sent an Information Request and given the opportunity to provide evidence that they did in fact carry out the necessary checks.

The Home Office will then issue either a Civil Penalty Notice or a No Action Notice, together with a Statement of Case explaining the reasons for the decision. The landlord will have a right to appeal against a penalty to the County Court within 28 days of the date given in the Notice. There is a court fee for making this application. If the landlord loses they are likely to have to pay the Home Office’s legal costs.

(2) Criminal prosecution of a landlord under the new s.33A Immigration Act 201437.

S.33A provides that a landlord commits an offence if

(1) the premises are occupied by an adult who is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement and

(2) the landlord knows or has reasonable cause to believe that the premises are occupied by an adult who is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement.

The landlord has a defence to the criminal charge if they can prove that (a) They have taken reasonable steps to terminate the tenancy and (b) Those steps have been taken within a reasonable period from the date when

they first knew or had reason to believe that the premises were occupied by a disqualified adult38.

Government guidance39explains that reasonable steps include any lawful option to terminate the agreement. Such steps to formally evict the disqualified tenant/occupier include new options brought in by the Immigration Act 2016. See further below.

This offence applies to residential tenancy agreements entered into before or after 01 December 2016.

(3) Criminal Prosecution of a Letting Agent under the new s.33B (2) Immigration Act 201440.

An agent commits an offence if they are responsible for letting premises on a landlord’s behalf and

(a) knew or had reasonable cause to believe that the landlord would contravene the scheme by entering into the residential tenancy agreement in question, and

(b) if s/he had sufficient opportunity to notify the landlord of that fact before the landlord entered into the agreement, but did not do so.

37 S.33A Immigration Act 2014 as inserted by s39 Immigration Act 2016 38 S.33A (4) and (5) and (6) Immigration act 2014 as inserted by s39 Immigration Act 2016 39 Guidance on taking reasonable steps to end a residential tenancy agreement within a reasonable time. Home Office December 2016 40 S.33A Immigration Act 2014 as inserted by s39 Immigration Act 2016

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Criminal penalties

A person who is guilty of an offence under s33A or s33B is liable41—

on conviction on indictment, to imprisonment for a term not exceeding five years, to a fine or to both; or

on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine or to both.

An Immigration Officer may also arrest without warrant a person they have reasonable grounds for suspecting has committed a criminal offence under s.33A or S.33B.

If a landlord or a letting agent is charged with a criminal offence they should seek advice from a criminal law solicitor.

(B) Post grant contravention: if the tenant or any other adult with time limited

right to rent becomes disqualified and continues to live in the premises then the landlord/letting agent could become liable to:-

(1) A civil penalty42 as above but will have a statutory excuse if any of the following apply43:

(a) they notified the Home Office that a disqualified adult is occupying the premises as soon as reasonably practicable after completing the follow up checks at the end of the eligibility period

(b) the letting agent is responsible (and will therefore be liable for the penalty)

(c) the eligibility period in relation to the limited right occupier has not expired.

(2) Criminal prosecution of a landlord under the new s.33A (1) – (3) Immigration Act 2014

The landlord does not commit an offence where a tenant/adult occupier has an expired limited right to rent but the eligibility period has not come to end UNLESS the Home Office has issued a notice to the landlord/letting agent explaining that a tenant/occupier is now disqualified from renting.44 The statutory guidance confirms that landlords…’will not be expected to re check the person’s right to rent until the end of the relevant eligibility period under the Right to Rent Scheme in order to avoid criminal liability’.

The landlord will have a defence to any charge if on receipt of the notice they then take reasonable steps within a reasonable period of time to evict that tenant/adult occupier who has no right to rent.

If on conducting the required follow up checks at the end of the tenant’s eligibility period, the landlord finds out that a tenant/occupier no longer has a ‘right to rent’ then the landlord might face prosecution as they would either ‘know’ or ‘have reasonable cause to believe’ that the tenant/occupier is disqualified from right to rent. They would have a defence if they then took reasonable steps to evict.

(3) Criminal prosecution of a landlord under new s.33A (10) Immigration Act 2014

41 s.33C, Immigration Act 2014 as inserted by s39 Immigration Act 2016 42 S 22 (5) Immigration Act 2014 43 s.24 (6) Immigration Act 2014 44 s.33A (4) – (5) Immigration Act 2014 as inserted by s39 Immigration Act 2016

14

If the landlord fails to notify the Home Office that there are disqualified adults in occupation at the end of the eligibility period, then they will be committing an offence. This only applies to post grant contraventions which occur after 01 December 2016.

(4) Criminal prosecution of a letting agent under s.33B (3) – (4) Immigration Act 2014

If the letting agent is managing the tenancy on behalf of the landlord and is responsible for conducting the follow up eligibility checks at the end of the eligibility period, then they will commit an offence if they fail to notify the Home Office and the landlord that there are disqualified adults in occupation.

This only applies to post grant contraventions which occur after 01 December 2016.

Criminal penalties; as for pre grant contraventions – see above

What will happen to a tenant/occupier where the landlord knows or has

reason to believe that they have no right to rent?

In the event that a tenant/occupier believes a mistake has been made by the Home Office in relation to their right to rent, they should immediately contact the Home Office (and their landlord).

If the tenant/occupier has no right to rent or has lost their right to rent and the eligibility period ended after 01 December 2016 the landlord may try to

end the tenancy by mutual agreement with the tenant(s) or

agree that the tenancy can continue if the disqualified person(s) move out and - where the disqualified person is a joint tenant - for the remaining tenants to take on the tenancy via a deed of assignment.

The guidance45 states that this is a reasonable step for the landlord to take to

establish a defence to any criminal charge.

The landlord will be expected to start formal steps to terminate the tenancy if they fail to reach an agreement with the tenant(s) within four weeks from knowing or having reason to believe that they are letting to a disqualified person(s).

It will also be considered reasonable if the landlord decides to serve a notice bringing a fixed term tenancy to an end or to activate a break clause if that end date is no more than three months from the date they knew or had reason to believe that a disqualified person was in occupation.

In the alternative the landlord can opt for new routes for eviction brought in by the Immigration Act 2016 in order to provide themselves with a defence to a criminal charge. These have made significant changes to the tenant/occupier’s security of tenure.

These new routes under s.33D and s.33E will apply equally in relation to a residential tenancy agreement entered into before or after the coming into force of the 2016 Act on 01 December 2016.46

45 Guidance on taking reasonable steps to end a residential tenancy agreement within a reasonable time. Home Office December 2016 46 s.40(3), Immigration Act 2016

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If all occupiers lack a right to rent: eviction without a court order

S.40 Immigration Act 2016 has inserted a new s.33D into Immigration Act 201447 setting out the procedure which must be followed for a fast track eviction if all occupiers lack a right to rent.

(1) The Home Office must give a notice in writing to the landlord which

identifies the occupier of the premises or (if there is more than one occupier) all of them (including children), and

states that the occupier or occupiers are disqualified as a result of their

immigration status from occupying premises under a residential tenancy

agreement.

(2) The landlord may terminate the residential tenancy agreement by giving at

least 28 days’ notice in writing and on the prescribed form48 (Notice of

Eviction and End of Tenancy) to the tenant specifying the date on which the

agreement comes to an end. The landlord’s s.33D (3) notice will only be

valid if all the Home Office notices are attached to it.

The notice may be given to the tenant(s) in person, by leaving it at the

premises, posting it or in any other prescribed manner.

(3) The Home Office notice ‘converts’ the occupation status of an assured

(including assured shorthold), Rent Act, or basic protection occupier to that of

excluded occupier under the Protection from Eviction Act 1977 49

This means that the landlord is not obliged to apply to the court for an order

for possession and can take possession as soon as the notice has expired. If

the eviction is not peaceable and involves threats, intimidation or force then it

will be unlawful may give rise to a possible claim for damages

(4) If the tenants/occupiers do not move out and the landlord does not wish to

carry out the eviction themselves they can apply to the High Court for

permission to issue a writ of possession. S.33D (7) states that the s.33D (3)

notice is enforceable as if it were an order of the High Court.

(5) The tenant(s) should be notified that the landlord has applied for permission to issue the writ of possession (High Court warrant)50 in accordance with the Court Civil Procedure Rules. Permission should not be granted unless it is shown that every person in actual possession of the whole or any part of the land ('the occupant') has received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled.

(6) If the landlord obtains permission to issue the writ of possession the tenant/occupiers are unlikely to receive any notification about the actual date

47 S.33D Immigration Act 2014 as inserted by s40 Immigration Act 2016 48 Schedule 1 of the Immigration (Residential Accommodation) (Termination of Residential Tenancy

Agreements) (Guidance etc.) Regulations 2016 SI No 1060. 49 s.3A (7D) Prevention from Eviction Act 1977, inserted by s40(5) Immigration Act 2016 50 Part 83.13 Civil Procedure Rules

16

of eviction as neither the Court nor the High Court Enforcement officers (bailiffs) are obliged to give such notice.

Challenging a s.33D (3) Notice.

The tenant(s) may have grounds to challenge the landlord’s s.33D (3) Notice and this option could arise either when the Notice is received or when the landlord takes the next step of applying for permission to issue a writ of possession.

For example:

the s.33D (3) notice might not be valid if the Home Office notices have not been attached, or

not all the occupiers lack the right to rent, or

the Home Office has erred in relation to an occupier’s immigration status

The tenant should be referred to a housing adviser/solicitor for urgent legal advice about appropriate action particularly in relation to a possible application to oppose the grant of the writ/ warrant.

If it appears that the tenant has no defence to the s.33D (3) notice they

should be signposted to an immigration solicitor for advice. Legal aid may be

available, subject to eligibility, where the client is at risk of losing their home.

Eligibility for legal aid can be checked here

If not all occupiers lack a right to rent: additional provisions to speed up eviction

Assured tenants

Assured tenants have statutory protection from eviction such that the landlord

must follow the correct procedure – serve the appropriate notice, obtain a

possession order and if necessary a warrant of possession.

Section 41(2), Immigration Act 201651, creates a mandatory ground for

possession of an assured/assured shorthold tenancy where a tenant or occupier

is disqualified from renting as a result of their immigration status. The new

mandatory Ground 7B is in Part 1 of Schedule 2 to HA 1988.

Ground 7B requires that two conditions are satisfied:

(1) The Secretary of State has given a notice in writing to the landlord which

identifies the tenant(s) or other adult(s) aged 18 or over who are occupying

the premises, as a person or persons disqualified from occupying the

premises under the tenancy.

(2) The person or persons named in the notice is/are in fact disqualified from

occupying the premises under the tenancy.

51 S.41(2), Immigration Act 2016

17

The landlord must serve a notice seeking possession giving 2 weeks’ notice and

stating that possession is being sought on Ground 7B. This can be done within

the fixed term even if there is no clause in the agreement mentioning ground 7B.

Where an order for possession is made against joint tenants solely on the basis

of Ground 7B, and one or more of the joint tenants is a qualifying tenant (i.e., has

the right to rent), the court may, instead of making an order for possession, order

that the tenant’s interest under the tenancy is to be transferred to the other joint

tenant(s)52.

Rent Act tenants

Rent Act tenants also have statutory protection from eviction. A new

discretionary ground is inserted in the Rent Act 1977 (Case 10A, Sch 15)53 in

respect of regulated tenancies.

Defending a claim under a mandatory ground for possession

The tenant(s) may have grounds to defend the claim for possession. This option could arise either when the notice seeking possession is received or when the landlord issues the claim for possession. For example:

The notice of seeking possession might not be valid if

the Home Office has not correctly identified who is in occupation and

none of the occupiers lack the right to rent,

The tenant should be referred to a housing adviser/solicitor for urgent legal

advice to defend the proceedings. Legal aid may be available, subject to

eligibility, where the client is at risk of losing their home.

Occupiers with basic protection and excluded occupiers

A new s.33E Immigration Act 201454 provides that it will be an implied term of a

residential tenancy agreement that the landlord may terminate the tenancy if the

premises are occupied by an adult who is disqualified from renting and the

tenancy is not an assured tenancy or a Rent Act protected tenancy.

The landlord must follow the appropriate route for obtaining possession but does not require any notice from the Home Office stating that one or more occupiers lack the right to rent to do so. Challenging the eviction Since these occupiers have very limited security of tenure their only defence would be a technical one based on the landlord’s failure to follow the correct procedure or in the case of an occupier covered by the Protection from Eviction

52 (new s.10A, Housing Act 1988, inserted by s.40(5) Immigration Act 2016

53 S.41(6), Immigration Act 2016 54 s.33E Immigration Act A 2014 inserted by s.40 Immigration Act 2016

18

Act 1977 any attempt to evict without a court order. The occupiers can only be evicted within a fixed term if there is a forfeiture or break clause in the agreement.

What happens if a tenant believes that a landlord or letting agent is

refusing to let to someone or to carry out immigration checks on the

grounds that they are not obviously British or an EEA national or do not

have a UK passport ?

The government accepts that discrimination is more likely to occur with the introduction of immigration checks and has provided an anti-discrimination code of practice for landlords.55

If a tenant believes that they have been discriminated against, either directly e.g. turned away because do not have a UK passport) or indirectly (e.g. not given a realistic time to produce ID), harassed or victimised by a prospective landlord, or an agent of a landlord, they may bring an action against them in the county court for failing to comply with the law.

The tenant could claim compensation for the losses and injuries they suffered if they could show that they lost the chance of a tenancy. In such cases the tenant should be advised to seek further legal advice.

The law: statute regulations and government guidance

Immigration Act 2014 (Part 3 Residential Tenancies)

Immigration Act 2014 (Schedule 3 Excluded residential tenancy agreements)

Immigration Act 2016 Part 2 Residential Tenancies

The Immigration (Residential Accommodation) (Prescribed Cases) Order 2014 SI

2873/2014

The Immigration (Residential Accommodation) (Prescribed Requirements and Codes

of Practice) Order 2014

55 Code of practice: Avoiding unlawful discrimination when conducting ‘right to rent’ checks in the private

rented residential sector

19

The Immigration (Residential Accommodation) (Prescribed Requirements and Codes

of Practice) (Amendment) Order 2016

The Immigration (Residential Accommodation) (Termination of Residential Tenancy

Agreements) (Guidance etc.) Regulations 2016

The government has issued the following documents to help landlords and their agents

to comply with the new provisions.

A Short Guide for Landlords on Right to Rent (updated 16 June 2016)

Code of Practice on illegal immigrants and private rented accommodation which

started before 01 February 2016

Code of Practice on illegal migrants and private rented sector which started after 01

February 2016

Code of practice: Avoiding unlawful discrimination when conducting ‘right to rent’

checks in the private rented residential sector

Guidance on taking reasonable steps to end a residential tenancy agreement within a reasonable time. Home Office December 2016 The right to rent tool for landlords

Right to Rent Documents Check: a User Guide

Request for a right to rent check from the Home Office

Kathy Meade Shelter Legal Services

December 2016

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Appendix 1: Lists of Acceptable Documents - Unlimited Right to Rent

(from Code of Practice on illegal migrants and private rented sector which started after 01

February 2016

List A: If a tenant can produce document(s) from either group one or group two then they will not require a repeat check.

Group 1 – If a prospective tenant can produce ONE document from this group then they will have an unlimite4d right to rent

1 A passport (current or expired) showing that the holder is a British citizen or a citizen of the UK and Colonies having the ‘right of abode’ in the UK.

2 A passport or national identity card (current or expired) showing that the holder is a national of the European Economic Area or Switzerland.

3 A registration certificate or document (current or expired) certifying or indicating permanent residence issued by the Home Office, to a national of the European Economic Area country or Switzerland.

4 A ‘permanent’ residence card, ‘indefinite leave to remain’, ‘indefinite leave to enter’ or ‘no time limit’ card issued by the Home Office (current or expired), to a non-EEA national who is a family member of an EEA or Swiss national.

5 A biometric ‘residence permit’ card (current or expired) issued by the Home Office to the holder indicating that the person named has ‘indefinite’ leave in the UK, or has ‘no time limit’ on their stay in the UK.

6 A passport or other ‘travel document’ (current or expired) endorsed to show that the holder is either ‘exempt from immigration control’, has ‘indefinite’ leave in the UK, has the ‘right of abode’ in the UK, or has ‘no time limit’ on their stay in the UK.

7

An immigration status document (current or expired) containing a photograph issued by the Home Office to the holder with an endorsement indicating that the named person has ‘indefinite’ leave in the UK or has ‘no time limit’ on their stay in the UK the UK or has no time limit on their stay in the UK.

8 A certificate of registration or naturalisation as a British citizen.

Group 2 – If a prospective tenant can produce any TWO documents from this group then they will have an unlimited right to rent

1 A full birth or adoption certificate issued in the UK, the Channel Islands, the Isle of Man or Ireland, which includes the name(s) of at least one of the holder’s parents or adoptive parents.

2 Evidence (identity card, document of confirmation issued by one of HM forces, confirmation letter issued by the Secretary of State) of the holder’s previous or current service in any of HM’s UK armed forces.

3 A letter from HM Prison Service, the Scottish Prison Service or the Northern Ireland Prison Service confirming the holder’s name, date of birth and that they have been released from custody of that service in the 6 months prior to the check.

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Group 2 – If a prospective tenant can produce any TWO documents from this group then they will have an unlimited right to rent

4

A letter issued within the 3 months prior to the check from an officer of the National Offender Management Service in England and Wales confirming that the holder is the subject of an order requiring supervision by that officer; from an officer of a local authority in Scotland confirming that the holder is the subject of a probation order requiring supervision by that officer; or, from an officer of the Probation Board for Northern Ireland confirming that the holder is the subject of an order requiring supervision by that officer.

5 A current full or provisional photocard UK driving licence.

6 Benefits paperwork issued by HMRC, a UK Local Authority or Job Centre Plus, on behalf of the Department for Work and Pensions or the Northern Ireland Department for Social Development, issued within the 3 months prior to the check.

7

A letter issued within the 3 months prior to the check signed by a representative of a public authority, voluntary organisation or charity which operates a scheme to assist individuals to secure accommodation in the private rented sector in order to prevent or resolve homelessness. This letter must confirm the holder’s name, and the address details of the prospective tenancy which they are assisting with obtaining for the holder.

8

A letter issued within the 3 months prior to the check by a UK government department or Local Authority and signed by a named official (giving their name and professional address), confirming the holder’s name and that they have previously been known to the department or local authority.

9

A letter issued within the 3 months prior to the check confirming the holder’s name signed by the person who employs the holder (giving their name and business address) confirming the holder’s status as employee and employee reference number or their National Insurance number.

10

A letter issued within the 3 months prior to the check from a British passport holder who works in (or is retired from) an acceptable profession as specified in the list of acceptable professional persons at Annex A. The letter should confirm the holder’s name, and confirm that the acceptable professional person has known the holder for at least three months. This letter should be signed by the acceptable professional person giving their name, address, passport number, profession and place of work (or former place of work if retired), how long they have known the holder and in what capacity.

11 A letter from a UK police force confirming that the holder is a victim of crime and has reported a passport or Home Office biometric immigration document stolen, stating the crime reference number, issued within the 3 months prior to the check.

12

A letter issued within the 3 months prior to the check from a UK further or higher education institution confirming the holder’s acceptance on a current course of studies. This letter should include the name of the educational institution, as well as the name and duration of the course.

13 Disclosure and Barring Service Certificate (criminal record check) issued within the 3 months prior to the check.

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Appendix 2: Lists of Acceptable Documents - Limited Right to Rent

(from Code of Practice on illegal migrants and private rented sector which started after 01

February 2016

List B – Acceptable documents to establish a time-limited right to rent

List B - If a prospective tenant can produce ONE document from this group then a limited right to rent will be established. A repeat check will be required.

1 A current passport or other ‘travel document’ endorsed to show that the holder is allowed to stay in the UK for a time-limited period.

2 A current biometric ‘residence permit’ card issued by the Home Office to the holder, which indicates that the named person is permitted to stay in the UK for a time limited period.

3 A current ‘residence card’ (including an accession residence card or a derivative residence card) issued by the Home Office to a non-EEA national who is either a ‘family member’ of an EEA or Swiss national or has a ‘derivative’ right of residence.

4 A current immigration status document issued by the Home Office to the holder with a valid endorsement indicating that the holder may stay in the UK for a time-limited period.

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Appendix 3: List of acceptable professional persons

(from Right to Rent Documents Check: a User Guide)

accountant

• airline pilot

• articled clerk of a limited company

• assurance agent of recognised company

• bank/building society official

• barrister

• chairman/director of limited company

• chiropodist

• civil servant (permanent)

commissioner of oaths

• councillor, eg local or county

• dentist

• director/manager/personnel officer of a VAT-registered company

• engineer – with professional qualifications

• financial services intermediary, eg a stockbroker or insurance broker

• fire service official

• funeral director

• general practitioner

• insurance agent (full time) of a recognised company

• journalist

• Justice of the Peace

• legal secretary – fellow or associate member of the Institute of Legal Secretaries and PAs

• licensee of public house

• local government officer

• manager/personnel officer of a limited company

• member, associate or fellow of a professional body

• Member of Parliament

• Merchant Navy officer

• minister of a recognised religion

• nurse – RGN or RMN

• officer of the armed services

• optician

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• paralegal – certified paralegal, qualified paralegal or associate member of the Institute of Paralegals

• person with honours, eg an OBE or MBE

• pharmacist

• photographer – professional

• police officer

• Post Office official

• president/secretary of a recognised organisation

• Salvation Army officer

• social worker

• solicitor

• surveyor

• Teacher, lecturer

• trade union officer

• travel agent – qualified

• valuer or auctioneer – fellows and associate members of the incorporated society

• Warrant Officers and Chief Petty Officers