The right to rent’ checks were introduced by the Immigration Act 2014 and despite strong resistance from various interest groups, the rules came into force on 1 February 2016 and apply to the whole of England.
The aim behind the regime is to curtail access to the private rental sector for people who are unlawfully living in the UK. The rules prohibit landlords in the private rented sector from knowingly renting property to illegal immigrants. Before granting any residential tenancy agreements on or after 1 February 2016, landlords or their letting agents are required to make ‘right to rent’ checks on the immigration status of all prospective adult tenants and other authorised occupiers, which is quite an onerous task.
The inconvenience/burden of this task is further compounded if the prospective tenant’s right to stay in the UK is time-limited. If this is the case, landlords must also ensure that they carry out follow up checks on their tenants and authorised occupants’ right to occupy at the later of either the point at which the time-limited right to rent expires, or on the expiry of a 12-month period following the first check. If the temporary right to rent runs out during the tenancy, the landlord must then inform the Home Office.
What’s more, as part of the UK government’s crackdown on illegal immigration, additional measures have been brought in under the Immigration Act 2016 (IA 2016) that make it a criminal offence for private landlords of residential properties to knowingly fail to carry out right to rent checks on tenants. Persistently unscrupulous landlords and agents that flout the checking rules or fail to properly evict illegal tenants/occupants could find themselves with an unlimited fine, five years in jail, or both, if found guilty of the offence.
There is however a debate regarding whether or not it is appropriate for landlords to be responsible (at least in part) for policing immigration in the private rental sector, and indeed whether they are equipped to do so. Three particular problems with this policy have been set out below. They relate to the practicalities of the proposal, unintended consequences, and the overall effectiveness of the policy.
Firstly, the bureaucratic burden of the rules and the potential threat of fines, jail, or both, may lead some landlords to ‘play it safe’ by only renting to British people. This would be tantamount to discrimination; conducting such practices when vetting potential tenants and occupants, and carrying out the Right to Rent checks, would be in direct contravention of the Equality Act 2010. However, unless a bank of successful discrimination cases develops, it is doubtful whether some private landlords will comply, preferring to err on the side of self-preserving caution.
The next concern relates to the process of document checking. The rules state that landlords must check their prospective tenants’ documents to ensure that they are originals, belong to the tenant, and that the dates for stay in the UK have not expired. The guidance on document checking allows for a number of documents to be used as proof, including not only one of the most recognised documents, the passport, but also other more obscure documents such as letters from various recognised authorities and persons from ‘acceptable professions’ (as per the Home Office’s ‘Code of Practice on preventing illegal immigration’). However, and perhaps unsurprisingly, in a survey of 1500 landlords carried out by the Residential Landlord Association, 44% of landlords said that would only rent to those with documents that they were able to recognise. This is likely to disadvantage those without a passport and/or those unable to provide their documents immediately. This will therefore primarily affect the young and the disadvantaged.
In any case, it is questionable whether even seasoned landlords would be able to spot fraudulent documentation, particularly when checking documents which they do not recognise. This pressure is somewhat alleviated by the Home Office’s promise to not penalise those caught out by well-forged documents.
Another issue concerns the effectiveness of this policy to truly quell illegal immigration. It should hardly be surprising to the government that in spite of their ambitious aims, most people who lack the right to stay in the UK do not take on formal tenancies and would be far more likely to stay ‘under the radar’, under informal and often fleeting arrangements. It is therefore unclear whether these new laws will have any great impact on illegal immigration numbers.
On the other hand, to give credit where credit is due, IA 2016 is likely to make it easier for landlords to evict illegal immigrant tenants from their properties. In some circumstances landlords will be able to evict their tenants without the need for a court order. In such circumstances, landlords will obtain a notice issued by the Home Office confirming that their tenant is disqualified from renting in the UK as a result of the tenant’s immigration status. On receipt of the notice, the landlord will be expected to ensure that the illegal immigrant leaves the property.
The new laws are still in their infancy and their effectiveness remains to be seen. However, it is clear that, if nothing else, the new checks will create more red tape for landlords and letting agents. The threat of penalty may also foster an environment of hostility, discrimination and resistance towards non-British tenants.