The questions raised about how the Coalition were going to implement Cameron’s proposal that private landlords should check the immigration status of their future occupiers have now been answered in part by the Home Office Consultation Paper, Tackling Illegal Immigration in Private Rented Accommodation.  The deadline for responses is 21 August.  I can only imagine what those responses might say, but my strong suspicion is that the Coalition will have pulled off quite an amazing feat of allying all sectors of the PRS – including advice agencies, local authorities, letting agents, landlord associations, landlords – against the policy.  And, the policy is complete madness – I might feel sorry for the Home Office, which was landed with this mess after Cameron’s speech, but never have any empathy with them.

On the one hand we have the current trope of “no more red tape” for landlords; on the other, we have a potential bureaucratic nightmare created by this policy which will act as an incentive to landlords to discriminate against anyone whose immigration status may give any cause for concern, particularly in a ready market.

There is a helpful summary of the bare bones of what is being suggested:

The essence of the proposed policy is that, before renting accommodation anywhere in the United Kingdom to a new tenant [including: residential occupiers paying money to occupy accommodation under licences as well as people paying to stay in tourist accommodation and equivalent arrangements outside England] to live in as their main or only home, landlords will ask prospective tenants to produce evidence from a checklist of specified documents of their entitlement to be in the UK. The landlord will check this and keep a copy for his records. The Home Office will operate an enquiry service for landlords who require support in understanding the documents they are required to check. Unless it is reasonably apparent that the documents provided by the tenant are forgeries, the landlord will not be held responsible for accepting a forgery. If the tenant cannot produce satisfactory evidence, the landlord should not rent accommodation to them – and would be liable to a civil penalty if he were subsequently found to have rented accommodation to an illegal migrant without having made the necessary checks.

You don’t really need to give this much consideration before appreciating what a legal and practical mess the policy is.  I’m particularly loving the “main or only home” requirement.

However much they try and convince you that it is “light touch” regulation, it is hard to shake the belief that it will act against the interests of people with already marginal immigration status.  So, for example, where the landlord is approached by some non-EEA nationals, the landlord will be required to verify those persons’ status by contacting the Home Office enquiry service – apparently the service will be developed to “reflect the real-time nature of competition for housing” (para 43) but the nature of competition for PRS accommodation in some parts of the UK will mean that such a further enquiry will be likely to  exclude the person from consideration.  This issue is recognised in the impact statement:

There is a risk that misinterpretation of the rules or guidance may lead landlords to exclude prospective tenants on the basis that they are perceived to be foreign nationals on the basis of actual or perceived national or ethnic origins or colour. The guidance and rules will be formulated to make the procedures as simple as possible and to provide advice to both landlords and tenants on how to easily establish legal status and identity.

That really doesn’t answer the problem being created, ie more guidance and rules will just make the process unwieldy for the average landlord (see NL’s post on the BBC and the PRS).

And what about those people who don’t actually have a passport?  UK nationals will have to dig out a birth/adoption certificate and either national insurance number/UK driving licence.

The rules won’t cover social housing and PRS housing allocated under Parts 6 or 7, Housing Act 1996 because the relevant checks will already have been done as part of the eligibility criterion (but social housing allocated other than through these mechanisms will be included).  Universities and employee accommodation will also be excluded.  Other exclusions are for owner-occupiers and commercial lets and boarding schools (of course); tourist accommodation, business/holiday lets of less than three months; there is also an exclusion for providers of crisis accommodation to homeless and other vulnerable people.

But housing tenure is not really as simple as that.  They are consulting on whether the provisions should be extended to lodgers and sub-tenants (and there’s a wonderful sentence there about the impact of the bedroom tax/spare room subsidy).  There will be different arrangements depending on the devolved housing law in Scotland, Wales and Northern Ireland, eg around HMOs.  And people’s arrangements aren’t entirely uniform either.  So, for example, people who actually sort out their accommodation before coming to the UK – the Home Office idea is that the check would be made prior to providing keys to the accommodation (and what if the check suggests that the contracted occupier is an illegal immigrant?  I guess there’s an interesting argument there about frustration).  And people’s immigration status is fluid as well.  So, where an occupier has limited leave to remain, the proposal is that the occupier should have the right to be in the UK on the date the check is made, but the landlord will have to make periodic checks thereafter.  Otherwise, the landlord will only need to make the check once and only with the person/s with whom they contract.

If the landlord employs a letting agent, the responsibility to check will be on the letting agent; if the landlord lets on a company let, the responsibility will lie on the company.

The penalty for not making a proper check is £1,000 per “adult illegal non-migrant” where the landlord has not had previous notices etc within the previous 3 years; and £3,000 where they have had.  But, there will be a discount if the landlord pays within 21 days (like a parking ticket).  Where a property is an HMO, in addition, the local authority will be informed of the infraction and can take it into account in determining whether the landlord is a fit and proper person.

The impact statement is as banal as usual, but it does give the Home Office pause for thought.  So, for example, it recognises that “Guidance and Codes of Practice will take into account the need to provide for compassionate circumstances and flexibility in some exceptional cases, but, in any case, women‟s refuges will be exempt (see paragraph 26). It is expected that in such cases the Home Office advice service would assess the need to allow a tenancy to proceed pending production of evidence. These and other scenarios will be explored during and after the consultation process”.