What is the new 'Right to Rent' legislation I have heard of? Do you ensure my tenant has a Right to Rent through your tenant referencing process?
Yes! Through our tenant referencing process we ensure the 'Right to Rent'- that the tenants immigration status allows them to legally rent property in the UK.
The ‘Right to Rent’ scheme was introduced in the Immigration Act 2014 as part of the Government’s policy to stop illegal immigration and following pilot schemes across the West Midlands has now been rolled out across the rest of England as of 1st February 2016. The implementation of the scheme puts the responsibility on the landlord (or their agent) to help restrict illegal immigrants gaining access to the private rented sector, and increasing the amount of housing stock available to those who are legal residents in England.
Ludlowthompson as a responsible agent have been carrying out these checks as part of their tenant referencing process for many years but it has only become law throughout the UK since 1st February 2016. As a Landlord of ludlowthompson you can be assured that we take responsibility for ensuring that all tenants are referenced fully for both affordability and for their legal right to reside in the UK; this page is intended as a brief guide for those interested in learning more about the changes in legislation.
What is the Right to Rent?
‘Right to Rent’ refers to a tenant’s immigration status and whether this allows them to legally rent a property in England; having a ‘Right to Rent’ means that the individual is present lawfully in England in accordance with immigration laws. Depending on where the individual is from, and their immigration status, they will either have a permanent Right to Rent, a time-limited Right to Rent or no Right to Rent; it is now the responsibility of the Landlord (or Landlord’s agent) to ensure that the correct checks are carried out to determine the adult individual’s immigration status. The immigration status of children does not need to be checked and the landlord is not required to conduct a follow-up check when the child turns 18. Where further checks are required (i.e the child has a time-limited right to remain) the now adult should be checked at this time.
Who has a Right to Rent?
There are certain people who have a permanent, unlimited Right to Rent in England. This includes British citizens, EEA Nationals (citizens of the European Economic Area plus Iceland, Lichtenstein and Norway), Swiss Nationals and those with indefinite leave to remain in the UK. Documents should still be checked thoroughly even for those who obviously appear to meet these requirements. The Equality Act 2010 prohibits discrimination on grounds of race so landlords should not attempt to bypass the checks by only renting to British Citizens.
Certain nationalities can only enter England on a time-limited visa which gives them a limited ‘Right to Remain’; this also applies to asylum seekers and other persons who are in the UK lawfully but have time-restrictions on their right to reside here.
Any person who is living in England illegally does not have a Right to Rent and is therefore automatically disqualified from renting any property.
Who is responsible for carrying out the checks?
It is the responsibility of the landlord, or where a landlord appoints an agent, the agent to check that the tenant can legally live in England. If an agent is carrying out referencing on behalf of the landlord this should be detailed as part of the landlord/agent terms and conditions/contract.
In the event that the tenant named on the agreement sublets the property, either with or without the landlords consent, it will become the responsibility of the tenant to carry out checks on any sub-tenants. Any agreements regarding subletting and the responsible party for referencing should be confirmed in a written agreement/contract.
When does the landlord/agent have to carry out these checks?
Right to rent checks should be carried out before granting a residential tenancy agreement. If circumstances occur where it is not possible to carry out the checks before the start date of the tenancy agreement landlords are able to check the status of the tenant after the start date as long as it is before they take up occupation of the property.
Those with a permanent Right to Rent need only be checked once, prior to the commencement of the tenancy.
For those with a time limited right to rent, landlords need to keep a note of when the time limit expires and check within 29 days of the tenant's right to rent expiring. Alternatively, they should check within 29 days of the 12 month anniversary of the previous right to rent check ( whichever is the later ) . This follow up check should then hopefully show the tenant has a right to remain in the property.
What are the landlord/agent’s legal obligations and what penalties can be imposed for contravening the rules?
The law takes effect regarding new tenancies entered into on or after 1st February 2016. Landlords are not required to check the status of existing tenants for tenancies that started before this date; they are also not required to carry out checks when an existing tenancy renews as long as the parties to the agreement do not change and there is no break in the tenancy.
If follow up checks show that an occupier no longer has the right to rent, the landlord/agent is legally responsible for reporting this to the Home Office.
Until recently, the liable party, be it the landlord or their appointed agent, could only be faced with a fine if they did not meet their obligations under the Immigration Act, however following changes to the Immigration Act 2016 stricter enforecement measures have been implimented. This means that if a landlord or agent is found to have not carried out the requisite checks it could be deemed a criminal offence, carrying up to 5 year's imprisonment and an unlimited fine.
10th March 2016
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