Tackling illegal immigration in privately rented accommodation - Issues for Landlords
The Immigration Bill 2014 is now at the Committee stage at the House of Lords and is likely to become law later this year.
The Bill makes provision to restrict access to services, facilities and employment for people who do not have the correct immigration status.
An important part of the Bill deals with Residential Tenancies and access to accommodation.
The Bill creates a Civil Penalty Scheme to be policed by Home Office officials.
The intention of the Civil Penalty Scheme is to penalise those who do not undertake the legally required checks on Tenants for private rented accommodation for which they are responsible.
Generally a Landlord must not authorise occupation of premises for use as a main residence by an adult who is presently in the UK in breach of the Immigration Laws. All Landlords who are found to have let accommodation to an illegal immigrant after the coming into force of the action without having established a statutory excuse will be liable to a civil penalty.
There is a statutory excuse against the penalty that the Landlord made all reasonable enquiries of the Tenant prior to the commencement of the Tenancy. The Scheme applies to:-
(a) Landlords;
(b) Tenants who sub-let accommodation;
(c) Anyone taking in a lodger;
(d) Letting Agents where a written agreement exists between Landlord and Agent that the Agent be responsible for carrying out checks under the Scheme.
This Scheme does not apply to sitting Tenants where their Tenancies pre-date the start of the Scheme. The Scheme is not yet in force.
The Landlord may be liable for a civil penalty in respect of each illegal migrant occupant living within the property.
The maximum penalty amount which may be imposed for each illegal immigrant is £3,000.
Who should be checked?
Landlords must check all new adult occupants before they take up residence in their accommodation under a Residential Tenancy Agreement. It is important to note that not simply the Tenant(s) themselves will have to be checked but the Landlords will have to check at the outset as to which other adults are going to be living in the accommodation and also carry out checks on those occupants. The checks will basically consist of seeing documentary proof of their immigration status which are sufficient to satisfy the Landlord that the person has current authority to stay in the UK.
A lodger who takes a room within accommodation that they share with someone else namely, their Landlord is also subject to these checks.
What needs to be checked?
What needs to be checked depends on whether the occupant is either (a) a British Citizen, European Economic Area (EEA) National or Swiss National; or (b) a non EEA National.
British Passport holders, other "EEA" Nationals and Swiss Nationals all enjoy freedom of movement to and from the UK do not need UK Visas and will not have any stamps in their Passport showing a time limit on their stay. They do not need permission to reside in the UK.
For this category a current or expired British or EEA Passport containing a recognisable photograph of the prospective occupant is sufficient to establish the person's legal status but other documents such as an EEA National Identity Card or UK Biometric Resident's Permit will also suffice.
Landlords I suspect will have more problems with non-EEA Nationals. Non-EEA Nationals generally need permission to reside in the UK. Permission is usually given in the form of Passport stamps, Visas, Biometric Resident's Permits and Asylum Registration Cards. The Home Office will in due course be providing a list of acceptable documents. Landlords who are not used to dealing with such documents, may have difficulty in recognising what document it is that their tenant is producing and even more importantly whether it authorises them to reside in the UK.
Letting Agents
The New Bill recognises that many Landlords may employ Letting Agents to let and manage their property. Where a Landlord agrees in writing with an Agent who is acting in the course of a business that the Agent will be responsible for undertaking checks and taking any other action required for the purpose of ensuring compliance with the Scheme then the Agent may be held responsible for any contravention which occurs and not the Landlord.
The same statutory excuses are available to the Letting Agents as they are to the Landlord.
Corporate Lets
As employers are already subject to separate duties to conduct Right to Work checks under Immigration Law, where the Tenant is a corporate body leasing premises in order to provide accommodation for employees, the Landlord will not be required to seek details of all employees who may use the premises.
Conclusion
The new requirements to be imposed on Landlords will be modelled closely on existing controls which apply to the employment of illegal workers.
They will add a considerable administrative burden to a Landlord. Landlords will not only be required to carry out the checks at commencement of tenancy and take copies of all relevant documents they will also be required to store the information obtained from the Tenants for a minimum period with the current proposed period being 12 months from the date when the Tenant ceases residing in the property.
Landlords will also have the additional difficulty of not only checking the status of the person signing the Tenancy Agreement but will also now have to identify all adults who are actually going to live in the property and check their status. This may not be easy.
It would appear that the Government are now intent on extending the responsibility for policing the immigration system to Landlords as well as employers.