Without a paddle - the new flood re regulations

The Government has recently announced that the "right to rent" Immigration Check Scheme is to apply to all residential landlords in England from 1 February 2016. We explain in detail how to check that a tenant or lodger can legally rent a residential property. 

In the wake of its evaluation of the "right to rent" immigration check pilot in parts of the West Midlands, the Government has announced that from 1 February 2016 all landlords, agents and householders letting or sub-letting residential property in England will be required to make checks to ensure that new tenants and occupiers have the right to be in the UK.

There is no requirement to check the right to rent of existing tenants and occupiers.

Certain statutory exclusions apply, including holiday lets and tenancies over seven years.

There are four basic steps to making a "right to rent" check which are summarised below:

1.  Establish how many adults will be living at the property as their only or main home

The landlord will be responsible for checking all adult occupiers whether or not they are named on the tenancy agreement.

Reasonable enquiries should therefore be made of the new tenant to establish how many adults will be living in the property as their only or main home.

What constitutes "reasonable enquiries" will depend on a range of factors including (but not limited to) the size and type of the property.

The landlord should assume that a potential occupier will be living in the property as their only or main home unless the occupier provides evidence to the contrary.

It is advisable for the landlord to keep a record of the questions asked and the answers given to their initial enquiries.

2.  Obtain original versions of one or more of the acceptable documents for the adult occupiers

There are two lists of documents which are acceptable as proof of someone's right to be in the UK. List A sets out the documents which may be accepted to establish a prospective occupier's right to be in the UK indefinitely.

List B sets out the documents which may be accepted to establish a prospective occupier's time-limited right to be in the UK. If the prospective occupier presents a document from List B, the landlord will be required to carry out a repeat check.

Lists A and B are contained in the Right to Rent Landlord's Code of Practice.

3. Check the document in the presence of the potential occupier

The landlord must then undertake basic visual checks of the document in the presence of the prospective occupier (in person or via video link) in order to verify that it belongs to them and is genuine.

The Government has published specific guidance for landlords on checking travel and identity documents to verify that the document is genuine.

If the prospective occupier is arranging the tenancy from overseas, the landlord should obtain and check their original acceptable document before allowing them to move in to the property.

4.  Make a copy of the document and retain it with a record of the date on which the check is made

Finally, the landlord must make a clear and unalterable copy of the original acceptable document before returning it to the prospective occupier and retain the copy securely electronically or in hard copy for a least one year after the tenancy comes to an end.

When copying passports, the landlord should ensure that they copy every page with the expiry date or applicant's details (eg nationality, date of birth and photograph), including endorsements, eg a work visa or Certificate of Entitlement to the right of abode in the UK.

The landlord should also retain a record of the date on which the check was made.

Failure to comply with the requirements correctly may result in the levying of a civil penalty by the Home Office of up to £3,000 per breach.

Landlords should also be aware that they can agree in writing with any letting agent who is responsible for fulfilling the requirements of the Scheme, and therefore who would be liable for any penalty in the absence of establishing a statutory excuse.

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This article was written by David Haines. For more information please contact David on +44 (0)1843 252 586 or david.haines@crsblaw.com