A collective sigh of relief from agents and landlords echoed through most of the UK in September. Everywhere except the West Midlands; specifically Birmingham, Walsall, Sandwell, Dudley and Wolverhampton. That's because the Home Office took the decision to pilot the new right to rent checks there from the 1st December, now little under two weeks away.
How will right to rent checks affect agents
The Immigration Act places new restrictions on illegal immigrants accessing private rented accommodation, and will mean agents in the West Midlands will be the first in the UK to carry out right to rent checks. Ultimately landlords are responsible for carrying out the checks but the responsibility can be transferred to agents if a written agreement exists or if this is set out in the terms of business.
Under section 22 of the Act, property must not be let to an adult who is not a British, EEA or Swiss national, unless they have obtained a right to rent in the UK. The checks should be done for all adults planning to live at the property, whether or not they are named in the tenancy agreement. It is of course best practice to conduct thorough checks on prospective tenants, but the new laws mean agents will also be required to check original ID documents of the holder and to retain copies as proof.
The law also makes it clear that when the tenant only has a time-limited right to rent in the UK, agents will be required to undertake a further check 12 months later or when their leave expires, whichever is later. If such a check indicates that the tenant no longer has the right to rent, then agents must report the situation by post or email to the Home Office. The Home Office has committed to examining the pilot through a six month evaluation, but as most tenancies last six months at the very least this will provide limited opportunity to understand the impact of carrying out on-going checks.
Practical advice on compliance
Any agent worth their salt should know that if they fail to comply with the law they could face a costly fine of upto £3,000 per tenant found to be living at the property without the right to rent. The good news is you're probably already doing most of what you need to do to ensure the tenant is properly vetted and who they say they are. However, you do need to make sure the forms of ID you use to verify a tenant's right to rent are on the Home Office's approved list and that you keep hold of copies for long enough. Copies of ID you take should also record the date on which the check was made.
The right to rent checks will only apply to new tenancies and it's also important to note that for the purposes of this Act, statutory periodic or rolling tenancies will not be deemed a new tenancy. There are four basic steps to ensure compliance:
1. Establish who will be living in the property
2. Obtain original versions of the acceptable documents (e.g. a passport or biometric residence permit) for all adult occupiers
3. Check the documents in the presence of the holder
4. Make copies of the documents, date them and keep them safe.
The legislation states that you must keep a copy of documents for the duration of the tenancy and for a minimum period of 12 months after the tenancy has ended, after which you should securely dispose of them.
Where from here
The Home Office has published a Code of Practice which includes a list of acceptable documents to use and demonstrates how to avoid breaching the law. You can view the draft code of practice here. A telephone helpline for those who need more information about the checks has also been set up: 0300 069 9799.
Where tenants are unable to produce identification, an online check to the Home Office can be made in order to provide a yes or no answer within two working days. As the lettings market is a very competitive arena, it is entirely conceivable that to avoid doubt agents will favour low risk' tenants or those whose legal right to reside in the UK is clear cut. The Home Office has also produced guidance to ensure agents and landlords do not unlawfully discriminate when carrying out checks. You can see the guidance here.
UKALA will be hosting training seminars about right to rent checks and we're updating materials on our online library to offer further practical advice for agents. Visit www.ukala.org.uk for more information.
*Richard Price is Executive Director of UKALA (The UK Association of Letting Agents)