The Immigration Act 2014 requires private sector landlords to check their tenants Right to Rent, which is to say, to ensure that they are not disqualified from privately renting property in the UK as a result of their immigration status. The Immigration Bill 2015-16 looks to build on this requirement with new eviction powers and criminal penalties for non-compliance.Jump to full report >>
As part of the Government’s attempts to cut down on illegal migration, the Immigration Act 2014 contains a number of measures to restrict access to services for those without a valid right to remain in the UK.
One of these measures is a new requirement for private sector landlords to check that tenants’ immigration status does not disqualify them from renting property. As a result, landlords who allow tenants without a so-called Right to Rent to occupy their property may be liable for a civil penalty.
Under Section 22 of the Immigration Act 2014, landlords "must not authorise an adult to occupy premises under a residential tenancy agreement if the adult is disqualified as a result of their immigration status." The legislation does not apply to those under 18 or those not renting the property as their main home, although the Home Office’s code of practice on the civil penalty scheme does recommend assuming the property is being let as a main home if there is any doubt. It also suggests that a booking of three months or more could indicate that a person intends on using the property as their only or main home.
Adults are disqualified if they do not have unlimited or a time-limited right to remain in the UK, or if they have a right to remain but are barred from renting property as a condition of their immigration status.
In order to check a tenant’s immigration status, landlords will need to view original immigration documents in the presence (or via live video link) of the applicant, make copies of the documents, and keep the copies for 12 months after the tenancy expires. Where a person has no time limit on their stay in the UK, checks may be undertaken at any point before the residential tenancy agreement is granted. However, where a person has a time-limited right to remain, the checks can take place no more than 28 days before the commencement of the tenancy agreement.
For applicants whose immigration documents are held by the Home Office and are therefore not available, the Home Office has created a Landlords Checking Service. This online tool will provide an answer as to the applicant’s Right to Rent. If no answer is received from the service within 48 hours, the landlord will have a statutory excuse against liability for a penalty.
If a follow-up check indicates an occupier no longer has the Right to Rent, landlords are required to report this to the Home Office "as soon as reasonably practical." Once this report has been made, the landlord is currently under no obligation to evict the occupier.
With regards to new tenants, landlords are under no obligation to report an applicant with no Right to Rent to the Home Office, provided they do not allow them to occupy the property.
If a landlord rents to a person with no Right to Rent, or does not report the expiration of an occupier’s limited Right to Rent, they may be liable for a civil penalt up to £3000.
If a landlord wishes to use an external agency to carry out the Right to Rent checks, they are permitted to do so. However a written agreement between the landlord and the agency will need to be drawn up, otherwise the landlord will remain responsible for any breaches and be liable for any associated civil penalties.
Given the additional burdens expected to be placed on landlords, the policy has proven controversial within the private rented sector, with a number of concerns raised by landlord associations at the consultation stage and during the 2014 Act’s progress through Parliament. Consequently, the scheme was piloted in five West Midlands council areas from 1 December 2014. The results of the pilot scheme were published in October 2015: Evaluation of the Right to Rent scheme.
The Government said that the West Midlands area was chosen “after careful consideration.” A Guardian article suggested that this area was chosen because its diverse housing stock and population size would mitigate the risk that tenants would be displaced to other areas.
On 17 June 2015, the National Landlords Association (NLA) announced that it had met with Immigration and Security Minister, James Brokenshire about the pilot scheme. They were told that the report of the evaluation project would inform the national roll-out, which could be phased in area-by-area and may not include all the nations of the UK. The NLA also reported that the pilot scheme had seen four payment notices issued, with one payment having been made.
On 20 October 2015, the Home Office published the results of the pilot scheme under the title: Evaluation of the Right to Rent scheme. This report drew on a range of research activities, including some carried out by external contractors (IRIS Consulting and BDRC Continental). These contractor’s findings were separately published in more detail in the reports 'Research with landlords, letting agents and tenants' and 'Mystery shopping to test the potential for discrimination within the private rental sector', respectively.
The report announced the successful implementation of the Landlords Checking Service (LCS). It also reported that the civil penalites regime for landlords had been established, with 13 referral notices being served and 5 civil penalty notices being issued.
Scheme awareness was variable based on the report’s survey respondents. While there was a small majority of respondents who were aware of the scheme (169 out of 284, or 60%), this ranged from relatively high awareness for local authorities (at 21 out of 24, or 88%) to middling awareness for landlords (70 out of 114, or 61%) and vocational & community services including housing associations (20 out of 34, or 59%) to low awareness among tenants (22 out of 68, or 32%).
According to the report, 109 individuals who were in the UK illegally were identified by the scheme, 63 of which were previously unknown to the Home Office.
The mystery shopper exercise looked to assess levels of racial discrimination, which the researchers hypothesised that the scheme could be linked to. The results showed a marginally higher positive response to the manner of the landlord or letting agent in the case of BME shoppers (81%) against White British (70%), however White British reported a more prompt reply to email enquiries (at 60% against 40%). This difference wasn’t observed in comparator locations.
BME shoppers were more likely to be asked to register than White British shoppers, and of those who wanted to register, rental fees were not mentioned to White British shoppers; while they were raised with 67% of BME shoppers. This difference again wasn’t observed in the comparator locations
Despite the differences in dialogue, the report found that race did not appear to have impacted negatively on BME shoppers in terms of being offered relevant properties.
Although this quantitative data was broadly encouraging, quotations were collected from mystery shoppers which could imply discriminatory behaviour or attitude.
Additional fears were raised around unseen and unmeasurable discrimination occurring; with Right to Rent potentially leading to discrimination that tenants would be unaware of due to not being able to identify the checks in particular as the cause of refusals.
In terms of the housing sector, the general perception reported was either that the scheme was having no effect on the cost of rent, turnover of accommodation or availability (from letting agents); or uncertainty (from landlords).
14 of 55 letting agents had received complaints from landlords or potential tenants, most frequently mentioning discrimination and delayed tenancy starts due to checks. 52% of respondent landlords said they had concerns about the scheme.
The majority of landlords and letting agents saw no benefit to the scheme. Those who did, cited tackling illegal immigration; standardising practice; professionalising the sector; discouraging rogue landlords and improving the reputations of landlords and agents. Concerns were raised, however, that only ‘responsible’ players were observing the scheme and that ‘rogue’ elements might get away with non-compliance. Some feared that this would see a proportional increase in the exploitative end of the sector; with immigrants unable to provide documents and thereby being drawn into using these illegal channels.
Overall, local authorities offered a mixed response as to whether the scheme had impacted on them, and whether or not this was positive.
Those working in social services, homeless or children’s services commented on an increase in workload, with respondents dealing with no recourse to public funds (NRPF) cases seeing an increase from families no longer able to access private rental accommodation.
Just over half (16 of 30) of VCS respondents felt that the scheme had negatively affected their workload. This additional work was commonly cited as including having to explain the scheme to tenants; additional work to support people to access accommodation and needing to raise awareness of Right to Rent.
The scheme was subsequently rolled out on 1 February 2016.
The results of a Freedom of Information request from The Economist issued to the Home Office prior to the publication of the evaluation of the pilot scheme prompted concern over its viability from a number of organisations and members of the press.
The Economist article (8 August 2015) claimed that across the pilot, "only seven property owners have been issued with notices under the scheme", with an average fine of £800. It further claimed that the pilot may have encouraged discrimination by landlords.
The Joint Council for the Welfare of Immigrants (JCWI) carried out an independent assessment of the pilot programme alongside Shelter, the Chartered Institute of Housing (CIH), the National Union of Students and Movement Against Xenophobia.
The JCWI survey garnered a small number of responses at 76, 45 of which were from tenants/lodgers and 31 from landlords/agents. 42% of responding landlords said that they were less likely to consider someone who did not have a British passport and 27% said they were reluctant to engage with applicants with a foreign accent or name. Only one British citizen responding to the survey had been asked whether they had permission to be in the UK in comparison with 73% of responding non-British citizens
The survey also suggested that the policy was not well understood by landlords or agents with 57% of respondents nationally and 40% in the pilot area claiming either not to have effectively understood the changes or not to have been aware of them at all.
The new measures were controversial amongst landlords, with over half of the respondents to the Government’s consultation exercise disagreeing with the principle of the policy. The RLA asserted that "untrained British civilians" should not be expected to undertake the work of immigration officials.
The RLA described the private rented sector as a "cottage industry"; making it difficult to easily disseminate information on new legislation, and was concerned that Home Office support for landlords may be poorly resourced. In response, the Government’s impact assessment estimated that it would commit £22.6m to familiarising landlords with the new rules.
Since the completion of the pilot and the publication of the evaluation report, further sector concerns have been expressed. The Guardian reported, on the day of the Right to Rent scheme’s launch, that the Residential Landlords Association (RLA) claimed more than 90% of 1,500 landlords it had surveyed had not received any information from the Government about their new duties, and 72% did not understand their obligations.
Further, fuelling fears around discrimination, the RLA reported that 44% of survey respondents had indicated that they would only accept documents that were familiar to them.
The Bill, which is currently progressing through Parliament, creates four new offences which, according to the Explanatory Notes, are aimed at targeting "those rogue landlords and agents who deliberately and repeatedly fail to comply with the Right to Rent scheme or fail to evict individuals who they know or have reasonable cause to believe are disqualified from renting as a result of their immigration status."
The Bill will insert new sections 33A, 33B and 33C into the Immigration Act 2014. It also introduces 33D, allowing for Evictions under the Right to Rent.
This section will create two new offences:
This section will create two new offences relating to letting agents:
Provides that a landlord or agent found guilty of an offence under section 33A or 33B will be liable to imprisonment for up to twelve months or to a fine (or both) on summary conviction, or up to five years imprisonment or a fine (or both) if convicted on indictment. If conviction takes place before section 154(1) of the Criminal Justice Act 2003 comes into force the maximum term of imprisonment on summary conviction will be six rather than twelve months.
Subsections 33C (3) to (5) provide for the commission of offences under new sections 33A and 33B by officers of a body corporate in certain circumstances.
The offence of letting to someone disqualified from renting under new sections 33A and 33B will, when brought into force, apply to landlords even if the tenancy was entered into before that date. However, the new offences applying to agents and the offence created by new section 33A(7) and (8) and new section 33B will only apply to contraventions of the Right to Rent scheme which take place after these measures come into force.
Immigration officers will be able to use powers under the Immigration Act 1971 (e.g. entering and searching premises and persons) in relation to these offences.
Currently, a landlord may discover that a tenant no longer has a Right to Rent but the immigration status of a tenant is not a basis on which the landlord can seek possession of the property. The Bill will enable landlords to obtain possession of their properties where tenants no longer have the Right to Rent.
The Bill will give the Secretary of State power to make regulations (subject to the affirmative procedure) to enable the new residential tenancies provisions to apply in Wales, Scotland or Northern Ireland.
Amendments approved at both Commons and Lords committee stages include:
Commons Briefing papers SN07025
Authors: Alex Bate; Shiro Ota