Immigration Act 2014 imposes identification burden on Landlords
The Immigration Act 2014 received Royal Assent in May 2014. Whilst on the face of it the Act may not be one which residential landlord's would ordinarily expect to be relevant to them. From October 2014 Landlords will, by virtue of the Immigration Act 2014, be obliged to ensure that any adult occupant of a residential property is entitled to live in the UK, failing which the landlord will be liable to a financial penalty.
Section 22 of the Immigration Act prohibits landlords from enabling an adult from occupying premises under a "residential tenancy agreement" if that adult does not have the right to live in the UK. A residential tenancy agreement is a lease or licence which grants a right of occupation, whether with or without additional use, of premises for residential use for which rent is paid.
From a yet-to-be-confirmed date in October 2014, Landlords caught by the Act will be obliged to check the immigration status of prospective tenants and occupants of a property. If a Landlord fails to undertake appropriate residency checks or lets a property to a person that they know does not have the right to reside in the UK, the Landlord faces a fine of up to £3,000 per person found to be residing in or otherwise occupying a property. If an agent lets a property on behalf of a Landlord and, having agreed to undertake the necessary residency checks, does not do so, the agent will be liable for the fine
Certain landlords are exempt from the checking obligations. These include social housing provided by a local housing authority, accommodation provided to an employee in the course of their employment and student housing which is owned or managed by an educational institution
Also, fines will not be imposed if it can be shown that all relevant checks were carried out before the tenancy agreement was entered into and there was no indication that a tenant would not have the necessary residency rights for the duration of the tenancy. Where a tenant's residency status changes during the course of a tenancy, a Landlord/Agent can avoid a fine provided that they notify the Secretary of State of the change in circumstances promptly.
The Home Office is, it is understood, planning on introducing an online service which will enable Landlord and/or agents to check whether a person is entitled to live in the UK. Also, guidance is to be published this summer to assist Landlords in ensuring compliance with the new Act. Given that we are a fraction under 2 months from October, the sooner that guidance is published, the better.
Pending the publication of this guidance, Landlords and letting agents would be well advised to:-
- Check who is going to be occupying a property and ensure that appropriate procedures are put in place to establish the residency rights of any tenant or occupant of a property
- Keep copies of the immigration documents of any tenant or occupant of a property and require the tenant/occupiers to keep landlords and agents informed of any changes to their immigration status.
- Keep a register of a tenant's or occupant's residency right and diarise to review their residency status, particularly where a tenant or occupant has a temporary right to reside in the UK.
- When contracting an agent to let a property, a Landlord should ensure that the letting agreement does not entitle the agent to recover from the Landlord any fine levied against the agent.
Whilst the aforementioned steps should help Landlord/Agents fulfil their obligations under the Act, it must be remembered that it will at all times remain the obligation of the Landlord or agent to ensure compliance with the Act. A failure by a tenant/occupant to disclose to a Landlord a change in their residency status will offer no defence to a Landlord/Agent if no efforts are made by the Landlord/Agent to verify a tenant's/occupant's status.
Landlords will be relieved to note that the Act is not retrospective, rather the obligations to check a person's immigration status will only apply to new tenancies granted after the to-be-confirmed date in October 2014. The Act makes clear also that tenancies which commence before the trigger date but which are then renewed after that date will also not be caught by the new obligations.
Only time will tell how the new Act is enforced. For the time being, Landlords should begin to put in place procedures and checks such as those mentioned above so that they are prepared for the introduction of these new obligations.
Rollits' Property Dispute Resolution Team, headed by partner Ralph Gilbert. has considerable experience is dealing with all manner of issues arising in the course of both residential and commercial lettings. If you have any contentious property related queries, contact Ralph Gilbert, partner and Head of the Property Dispute Resolution Group on 01482 323239 or at firstname.lastname@example.org.
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.