Landlords will already be familiar with changes that were introduced by the Immigration Act 2014. This piece of legislation obligated Landlords (from 1 February 2016) to check that their tenants or lodgers can legally rent property in England. This is known as the ‘right to rent’.
In summary, UK citizens, EEA citizens, Swiss Nationals and those persons granted indefinite leave to remain in the UK have a right to rent. Further, those persons who have been granted leave to enter or remain in the UK for a limited period of time (e.g. under a work visa) will also have the right to rent. Individuals who require permission to reside in the UK and do not possess it will not have the right to rent.
Prior to 1 December 2016, a landlord could be fined up to £3,000 if a tenant or occupier did not possess the right to rent.
So what has changed? Part of the Immigration Act 2016 came into force on 1 December 2016. It has introduced harsher penalties for a landlord who has let his property to a tenant or occupier who does not possess the right to rent and the landlord knew, or ought to have known, that they did not possess this. It is now a criminal offence that is punishable by a prison sentence not exceeding five years (if tried in the Magistrates Court then the sentence is limited to one year). Further, the courts have powers to impose an unlimited fine in addition to or in place of the prison sentence. An offence has also been introduced for Agents who had a reasonable cause to believe that their landlord client was letting to such a person or persons.
A landlord will have a defence if he can show that reasonable steps were taken to terminate the tenancy and that these steps were taken promptly after being notified by the Home Office that the tenants/occupiers do not possess the right to rent.
What must the landlord do in such circumstances? If all occupiers do not possess the right to rent, then an eviction notice should be served giving the occupiers 28 days to vacate the property. The eviction notice has the power of a court order and as such, a possession order is not required.
If a landlord has been advised that not all of the tenants are disqualified, then he can commence court proceedings to obtain possession of the property. A new mandatory ground for possession has been introduced for such a scenario. A Judge can either make a possession order or order that the disqualified tenant be evicted.
There is also a separate issue that landlords must be aware of. As a result of the enactment of the Immigration Act 2016, any landlord wishing to obtain possession of their property under the Section 8 procedure (typically used when seeking to evict on the basis of rent arrears) must now serve a new form of the Section 8 notice that references the Act at the top of the notice. Failure to do so would invalidate the notice. Beware!
I strongly suggest that a landlord takes appropriate steps to ensure that they ascertain any occupier possesses the right to rent. This should include asking for original documentation that proves they can live in the UK. Further, the landlord should check that the documents are genuine and belong to the occupier, with the occupier present. The landlord should also keep copies of the documentation and record the date the check was made. Professor David Rosen also adds that landlords should consider running enhanced checks to confirm such documentation is true and accurate.
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