Responsibility of Landlords to Identify Foreign Nationals

In September 2015 the Government introduced new regulations that firmly put responsibility on Landlords to monitor the immigration status of their tenants or lodgers, as part of the right to rent requirements that now apply across England. The Government held a trial in the West Midlands, making Landlords responsible for checking the nationality and visa status of their tenants. Along with this responsibility Landlords need to ensure that the checks are fair, as tenants who are rejected unfairly could prosecute landlords, and an award for injury to feelings, for example, could be made. But at the same time this will place an administrative responsibility onto landlords, which could lead to prosecution, and penalties, if landlords don’t identify an illegal tenant.

Who has a right to rent?

To escape penalties, landlords need to obtain original documents, check that they are genuine and make a clear copy of each document, according to the official landlord code of practice. A British, EEA or Swiss national, for example, automatically has a right to rent. Landlords will need to ensure they are aware who need to provide documents, for example most non-EU citizens will need a visa. If someone’s visa expires before the tenancy ends, the Landlord is responsible for making sure that it is renewed. If a sitting tenant no longer has a right to rent, the landlord will have the responsibility of notifying the Home Office. This will apply to any tenant, including lodgers, who will be renting property as their only or main home, so does not apply to holiday lets or second homes, for example.

With regard to tenancies that were set up before December 2014, the rules won’t apply to these tenancy agreements, or renewals of those tenancies after this date, as long as it involves the same people and there is no break in the tenancy.

How do landlords need to check documents?

There are acceptable documents for right to rent checks, which can include the following documents which can be taken in their own right:

  • A passport
  • A registration certificate or document certifying or indicating permanent residence issued by the Home Office,
  • A permanent residence, indefinite leave to remain, indefinite leave to enter, or no time limit card issued by the Home Office
  • A biometric residence permit card
  • A passport or other travel document 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
  • An immigration status document containing a photograph issued by the Home Office

An example of any two of the following documents need to be produced:

  • A full birth or adoption certificate
  • Evidence of the holder’s service in the HM’s UK armed forces
  • A letter from HM Prison Service confirming that they have been released from custody in the 6 months prior to the check
  • A current full or provisional photocard UK driving licence
  • Benefits paperwork issued by HMRC
  • A letter from an employer confirming status as an employee

Checking the Validity of Documents

Landlords must ensure that when they are checking the documents that they do this in the presence of the holder, and that you are in possession of the original documents. Landlords will need to keep a record of every document they have checked, and which should be held securely for the length of the tenancy, with a dated declaration on the copy made.

There are already companies set up who will carry out immigration checks on behalf of Landlords. They will obviously charge Landlords, generally per tenant for a Verification Certificate to show that tenants have a right to rent. They can also take on legal responsibility for making sure the tenants are here legally. Certificates issued by such companies are not official documents, however, and it is unclear if the Home Office considers using their services as “reasonable measures”.

For further advice on Landlord obligations contact our experts on 01905 730450.

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