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Right to Rent – Frequently Asked Questions

Posted on 2014-09-09

When does the scheme come into action?

On December 1st 2014, the regulations will come into effect in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton. Depending on success, they will be rolled out across other regions in 2015.

Why is this bill important?

Aside from helping to control the amount of illegal immigrants residing in the UK, the regulations will also help landlords to protect themselves from being penalised if they are found to be providing accommodation to people who are not living in the UK legally.

What do I need to do?

Your obligations as a landlord under these regulations mean that, from what ever date the bill applies to your area, you must check the documentation of anyone who applies to rent one of your properties as their main or only residence.

These checks should be conducted on any adult resident who will be occupying the property under the terms of a residential tenancy agreement. The checks must be undertaken prior to the tenants taking up residence in your property.

You should also make a copy of the documents and keep them in a safe and secure manner, in keeping with the Data Protection Act 1998. You must keep these copies for a minimum of 12 months after the tenancy ends, and can also keep them, if you wish, up to a maximum of six years.

Please note that it is a criminal offence to keep the original copies of someone’s identity documentation for any reason.

I’ve got the documents, but what am I looking for?

When checking a tenant’s documentation, you should carefully sense check it to make sure you’re satisfied it’s not obviously fake, the photograph bears a resemblance to the tenant and there are no major discrepancies in gender or age. If more than one document has been given to you by one person, make sure that names, genders and dates of birth match up on each one.

Is an expired passport ok?

As long as the passport is genuine and issued within the UK, Switzerland or another EEA country – it is fine to accept it. Likewise, if it’s not from one of the above countries but the person has been granted indefinite leave to remain in the UK; this is also fine to accept.

What if a tenant can’t produce any valid documents?

If a tenant doesn’t have any valid documents, or refuses to provide them, you must report this to the Home Office. You should also retain the evidence of your report to show that you’ve taken the necessary steps to protect yourself from penalty. Advice on how to do this will be listed in the annex of the code of practice.

The tenant says their document was stolen or lost – what do I do?

If the tenant’s documents have been stolen, they should obtain new documents from their home country and, where necessary, ask the Home Office to amend their new documents to show their right to live in the UK.

What does main or only residence mean?

If the tenant will be living, and paying rent to live, in a residence for more time than any other property, this is classed as their main or only residence.

Who is classed as ‘legally’ residing in the UK?

British passport holders, along with other European Economic Area (EEA) nationals and Swiss nationals have the freedom to live in the UK and come and go as they please.

They do not have visas and will not have passport stamps or time limits imposed on their stay in the UK. However, they will still need to be checked under this scheme.

Nationals of other countries, which are not mentioned above, may also have permission to legally live in the UK – this may take the form of visa vignettes, passport stamps, Biometric Residence Permits and Asylum Registration Cards.

A full list of acceptable documents can be found in the code of conduct which will soon be issued by the Home Office.

Who may not have the right to live here?

Anyone who cannot produce an official document, as above, may not have the right to legally live in the UK.

Do I need to make these checks on children?

If there are any dependents of the tenants that are under the age of 18, you will not need to check their immigration status.

However, it’s a good idea to check the age of any young dependents of tenants if you’re not satisfied that they’re under 18 years old.

If I’m sure the tenants aren’t illegal immigrants, or I know them, do I still need to check them?

Yes you do. To avoid discrimination, you need to check all adult tenants; whether or not you’re satisfied they’re living in the UK legally.

Apart from anything else, this is good protection against any potential penalties.

Do I need to check everyone who enquires about a property?

No. You only need check those people who have applied for a tenancy and you are considering renting to under a contractual agreement.

What about house guests of tenants?

As long as the guests aren’t paying rent, aren’t listed on the tenancy agreement or living in the property as their main or only place of residence, you don’t need to check them.

Do I need to check my current tenants?

You only need to check new tenants who apply after the start date of the Right to Rent scheme.

What if my current tenant wants to renew?

If your current tenant wants to renew their contract, you will have to check them under the rules of the scheme, to ensure you’re not inadvertently renting to illegal immigrants.

My tenant’s visa expires this year; can I still rent to them?

If your tenant has a time limit on their stay in the UK, which doesn’t have an expiration date or expires within the next year, you can still rent the property to them.

However, you must check their immigration status again on the anniversary of them moving into the property – to check they still have the right to live in the UK.

If their documents have an expiration date of more than a year, you won’t need to check them again until they expire.

Therefore, it’s important you make a careful note of these expiration dates, to ensure you don’t forget to check again and open yourself up to a penalty.

My tenant can’t give me their documentation right away. What do I do?

You can still conditionally accept them as a tenant, provided that they give proof of a right to reside in the UK prior to them moving into the property and the normal checks are subsequently performed.

What do I do if I think a tenant is an illegal immigrant?

If you have suspicions that an existing tenant is living in the UK illegally, you can report your concern to the Home Office – who will log your report and look into it.
The report will be kept in the strictest confidence and the tenant won’t know you’ve logged it. This report will count as a ‘statutory excuse’ and will prevent you from penalties in relation to this tenant.

I’m a letting agent – am I liable under this scheme?

Letting agents will be liable under this scheme if they have agreed with a landlord, in writing, to take on the responsibility of carrying out these checks, and any other actions that are required to ensure compliancy with the scheme.

However, it is the landlord’s responsibility to ensure the tenant is not living in the property before checks are carried out and not allowed to move into the property if the letting agent’s checks show they are an illegal immigrant.

If a tenant sub-lets my property, am I liable under this scheme?

Generally, the tenant in this respect becomes the landlord and is therefore responsible for checking any sub-tenants.

However, your tenant may write to you (or the head landlord) and ask for you to take responsibility and liability for this. Unless you agree to this request in writing, the tenant will remain liable for any sub-tenants.

What about lodgers? Do they need to be checked?

If a lodger is paying rent and using one or more rooms in the property as their main or only place of residence, then they do need to be checked as they still qualify as tenants.

What if I acquire a property with sitting tenants?

You should make reasonable enquiries into the people living in the property. If during these checks you discover that the tenants are living in the UK illegally, the liability will rest with the former landlord. If you do find that the sitting tenants are residing in the UK illegally, you must ensure you report it to the Home Office – if you don’t, the liability for the ensuing occupation of the property will rest with you.

What are the penalties for not adhering to the regulations?

If you don’t follow the guidelines of the Right to Rent Bill, or you knowingly allow an illegal immigrant to rent your property, you could be fined up to £3,000 per tenant.

How do I avoid being penalised?

As long as you’ve got a copy of who it was said would be living in the property as their main or only residence, along with a copy of any documents given as proof of the right to stay in the UK, and subsequent checks (if necessary), you will have what is called a ‘statutory excuse’, which protects you from any penalties relating to those particular tenants and their immigration statuses.

For example, if it’s later found that the documents presented to you were those of another person but you believed them to be genuine, you may not be fined.

Please note: Information correct at the time of publishing (August 2014) but subject to change. Please refer to the Home Office website for the most current guidance.

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