The second part of our series from Eligibility and Immigration expert Sue Lukes. In Part 1 she considered which lettings and occupiers were covered by the new rules, which are being piloted ONLY in some areas of the West Midlands. Here she looks at how the scheme will actually work.
So how does it work?
Before allowing anyone to move in, the landlord must check on prospective occupiers and ask for proof (which must be copied and kept for at least 12 months after the tenancy ends) that they are in one of these groups:
- A “relevant national”: a citizen of the UK, the European Economic Area or Switzerland: they are not covered by the Act at all, but landlords will need proof that the occupant is in this group
- A person with an indefinite “right to rent”: someone with indefinite leave to remain or right of abode in the UK
- A person with a “time-limited right to rent”: someone who has limited leave to remain in the UK or a right to live in the UK under EU law (not a European citizen because they are “relevant nationals” but, for example, the non- European husband, or the non British parent of a British child who has no other leave).
- A person with a discretionary right to rent: this is a get out clause. The Home Secretary can grant a “discretionary right to rent”. Who will get that? Presumably people who have no current leave but cannot be removed from the UK, or who are waiting for their case to be resolved or taking legal proceedings to sort it out. They will have to apply for it.
Anyone else should not be offered the accommodation. For those with a time limited right to rent, landlords must make new checks after a year, or (if it is longer) just before the current period of leave or right to live in the UK expires.
If the landlord then finds out that the occupier has no current leave or right to live in the UK he must report it immediately to the Home Office. This does not affect the occupant’s tenancy or other rights to live in the home.
How do landlords know how to check?
The Home Office has issued a draft code of practice which explains the procedures in some detail and is available here.
There is also a “right to rent tool” available here, which allows landlords of properties in the pilot area to step through the process.
However, they cannot solve the central problem which is that immigration status is a complicated business.
The first step in the process asks the landlord to say whether the prospective tenant can produce one of a large number of immigration status documents.
One of eight groups of such documents is, for example
“A Permanent Residence Card, indefinite leave to remain, indefinite leave to enter or no time limit card issued by the Home Office, to a non-EEA national the family member of a national of a EU country, EEA country or Switzerland”
Landlords are not alone in wondering what these look like, or how you might distinguish them from any of the documents listed in the other seven groups, or, indeed, from a fake.
The code promises photographs of them but they are not included in the draft.
These checks, of course, must be carried out for each adult the landlord knows will be occupying the premises, tenant/licensee or not.
The draft code also promises another code of practice, this time on discrimination, which is also not yet available.
This is important because it is clear that any landlord who checks some prospective tenants but not others may well be committing unlawful acts of discrimination if the decision not to check is based on anything other than a “close family relationship” that has allowed the landlord to know about the future tenant’s immigration status.
But there is already quite a lot of evidence that landlords are simply turning away people who they think might be migrants.
Using an agent
Landlords can appoint an agent to do the checks for them. They must do this by a written agreement that specifically covers the Immigration Act 2014 checks.
If such an agreement exists then it is the agent who is liable for any breaches, unless the agent notifies the landlord that a possible occupant does not have a right to rent and the landlord allows them to move in anyway, then the landlord is liable.
Next week, in the final part of this series, Sue looks at what happens if it all goes wrong …
Sue will be speaking about these issues at the Landlord Law Conference on April 14 at Cambridge.
She also provides training for organisations (such as local authority officers) via our training company Easy Law Training – click here to find out more.