Landlord Immigration Checks from 1 December

The Home Office has (finally) announced the ‘pilot’ areas for the landlord immigration check requirement under Immigration Act 2014.

The areas are Birmingham, Walsall, Sandwell, Dudley and Wolverhampton. The requirement will come in to force in those areas on 1 December 2014, with other areas to follow at unspecified dates in 2015.

The equipment will apply to all tenancies, leases below 7 years, sub-lets or lodging arrangements granted on or after 1 December 2014 in the affected areas. Existing or renewed agreements where the tenancy/lease/lodging etc. is continuous from before 1 December will not be affected.

Councils are exempted (including discharge of homeless duty via private sector), as are other social landlords (where they have already been required to consider prospective tenant’s immigration status before allocating them the property) and hostels and refuges ‘which are managed by social landlords, voluntary organisations or charities, or which are not operated on a commercial basis and whose operating costs are provided either wholly or in part by a government department or agency or a local authority’.

The Home Office has also released a “Code of Practice on illegal immigrants and private rented accommodation“, for landlords and letting agents.

This makes clear how simple the legislation and the checking process is, coming in at 31 pages. It includes such luminously transparent passages as:

Where the initial right to rent checks are satisfied with a document from List B, or where the Landlords Checking Service has provided a “yes” response to a request for a right to rent check, a landlord establishes a time-limited statutory excuse. This time-limited statutory excuse lasts either for 12 months or until expiry of the person’s permission to be in the UK or the validity of their document which evidences their right to be in the UK, whichever is later. Follow-up checks should be undertaken before this time-limited statutory excuse expires, in order to maintain a statutory excuse.

And how can the landlord check if not sure?

When an individual cannot provide the landlord with any of the documents from List A or List B, but claims to have an ongoing immigration application or appeal with the Home Office, or that their documents are with the Home Office, or they have been granted a right to rent on a discretionary basis, then the landlord can request a right to rent check from the Home Office’s Landlords Checking Service using an online form. Where a landlord does not have access to the internet, a request can be made by telephone. The Landlords Checking Service will respond to the landlord with a clear “yes” or “no” response within 2 working days.

In order for the landlord to request a check, the prospective occupier must provide the landlord with a Home Office reference number. This can be, for example, an application or appeal number, application registration card (ARC) number, certificate of application number issued to a family member of a national of an EEA country or Switzerland, case number, etc. The landlord must include this information when requesting a right to rent check, to receive the “yes” or “no” response.

Oh, this is going to go so well.

Back in May, we said that we thought this was a horrendous, nasty, complex piece of legislation. Nothing has changed. It places a significant burden and indeed risk on landlords, faced with – to put it mildly – hideously complicated issues of immigration and residence status. As a result, it will certainly result in ‘safety first’ acts of discrimination against potential tenants whose right to reside in the UK is not glaring obvious, like a UK passport.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London.
You can find him on Linkedin and on
Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.

Posted in Assured Shorthold tenancy, Housing law - All, Leasehold and shared ownership, Licences and occupiers and tagged , , .

21 Comments

  1. This legislation is disastrous. It is a struggle to believe your own eyes when reading this guidance for landlords.
    As you say, private landlords may well ‘play it safe’ to avoid the possibility of getting a substantial fine by only renting to persons and their family members who are clearly (white) British -and of course avoid the burdensome immigration paper checking exercise completely. (The Guidance tries to make the process of immigration checking child’s play).
    If a landlord does rent out to somebody who has their immigration papers in order, but further down the line they, or somebody in their household loses their ‘leave to remain’ or another person moves in who does not have the required documentation, the landlord will have to check this (how? force his way into the house and demand a head count and see all papers?). Then, in order to avoid a fine, the landlord has to report the said person(s) to the Home office.. but is advised not evict them. Presumably so that the Home office can turn up at the address and begin the process of deportation. I wonder how the friends and relatives of the person affected will react towards the landlord?
    Letting agents will probably bump up charges to ‘check papers’. Nice little extra costs for anyone who does not look or sound British or have a British name.
    Wonder if any of this has been ‘impact assessed’, or are they just waiting to see how it pans out in the densely populated Black and Asian communities in the West Midlands?
    I think it will also affect the EU nationals ability to find accommodation because landlords may play it ultra-safe with clearly-British nationals only . UKIP appear to view Romanians as ‘people who should not be here’.
    So, with the eligibility criteria on local authority registers being severely restricted following the Localism Act 2011, the private rented sector may become harder to access for anyone who does not look or sound like a British national. With private landlords free to choose who they want as tenants – and some landlords do appear to have developed an aversion to benefit claimants following the benefit cuts – it might be difficult to bring a claim of direct discrimination unless there is clear evidence that the landlord is guilty of racial discrimination.
    Disastrous, ill thought out legislation that may have a seriously negative impact on the BAME communities

  2. Also big problems for local authority role in homelessness prevention. People who cannot get private tenancies because of documentation or discrimination will have to ask for help but can only be exempted from the checks if accepted as homeless.

  3. The implications keep springing up the more you think about this.
    Imagine this common scenario: A local authority owes a s.193 full homelessness duty to a person and their family. For whatever reason, the family are excluded from the allocation register for social housing under the LA exclusion criteria within the allocation policy document.
    That leaves the LA with only one option to end the s.193 duty – a suitable private rented sector offer. However, one of the family members does not have the required immigration status. At present, this is not a problem However, once the Act comes into force,(from December in certain areas of the West Midlands) that will make it very difficult for the LA to find a private landlord who will grant a tenancy (which has to be at least 12 months fixed term AST) because the landlord will be instantly open to the possibility of a fine.
    Does that family remain in temporary accommodation forever? Certainly the s.193 duty will have to continue. Will the council have to inform the Home Office? I would assume that all LAs will inform the landlords in these scenarios that they need to check immigration status on all over 18s in the household but if the LA have already discovered an immigration problem, it would be negligent of them to put them forward as prospective tenants to the private landlord.
    Still…I’m sure that this was all thought of when the leglislation was planned and drafted.

    • No, I don’t think that would be so. Private sector discharge of LA Part VII duty is exempted. Presumably on the basis that eligibility forms part of Part VII enquiries.

    • Yes, you’re right.. I didn’t take in that bit when I read the guidance in a daze yesterday.
      It is not clear on whether the private landlord would still be exempt if he chose to grant further fixed term agreements – i.e. new tenancies – to the same tenant with an family member who has no leave to remain after the homeless duty has expired after 2 years.

  4. Pingback: Landlord Immigration Checks from 1 December – NearlyLegal | Current Awareness

  5. According to the guidance it must be an original form of ID and checked in the prescence of the holder. What about proper certified copies, would they be acceptable?

    • Actually I think I asked this somewhere else and the answer was that no one is really sure.

  6. This is a thinly disguised attempt to validate the return of ‘No blacks here’. Most landlords will simply not give tenancies to anyone who doesn’t appear to be English and White; they cannot be bothered to get s21 notices correct, protect deposits correctly, they certainly won’t want to got through the 31 pages of guidance to avoid breaking the immigration laws.

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  8. Pingback: Rightsnet discussion forum | Tackling Illegal Immigration in private accommodation.

  9. Pingback: What immigration checks by landlords mean for tenants

  10. This legislation is hardly onerous for landlords. I think every landlord wants some form of identification when a prospective tenant presents themselves both for the protection of existing tenants and to potentially seek damages if the prospective tenant were to damage their property.

    All the government is asking is that migrants present their passport and that landlords check the prospective tenants reason for being in the country. They could be students, be on a work visa, or have indefinite leave to remain.

    Student visas and work visas have expiry dates and thus the land lord needs to be aware of this fact. It is all stated on one line of the visa stamp page of their passport! The landlord simply has to make a note to follow up on a specified date to see if the tenants still reside on his premises and if so find out if the migrants visa has been extended or if an application to extend is in process by contacting the home office to ensure this is being done.

    • Hi Jason

      I’m afraid that you rather illustrate the problem. There are many other kinds of right to reside which won’t simply have the passport/visa evidence. A Zambrano carer, for instance, has a right to reside, to work and to rent, at least while the child’s EU rights are engaged, but will not have any visa documents to that effect.

      Any landlord relying on the ‘simple evidence’ you suggest would be turning away people who have a perfectly valid right to reside.

  11. Do we think this will impact on excluded licensees? I note that this article mentions “lodging”, and I wonder what is meant by that.

  12. Pingback: What immigration checks by landlords mean for tenants

  13. This is actually a very good thing for landlords, if a tenant has to prove who he or she really is then that can be recorded on a tenant database and if they are bad tenants this information can be recorded there warning other landlords to “beware this person, you do NOT want to rent anything to him”.

    • Apart from that being a DPA breach and probably defamatory, you mean?

      Also, because we don’t allow SEO spam, the link to your claims farming site has been removed.

  14. The Movement Against Xenophobia (MAX) is undertaking an independent evaluation of the Right to Rent for discrimination and difficulties faced by landlords and tenants as a result of the checks.

    We urgently need to hear the views and experiences of landlords and tenants, both in the West Midlands areas where the checks are currently taking place, as well as the UK as a whole.

    We have two surveys, one for tenants and lodgers, and one for landlords and agents, available at http://www.noxenophobia.org/immigration-act/right-to-rent-checks-survey/

    You can also send your views and experiences to policy@jcwi.org.uk

  15. Pingback: The Immigration Act 2014 and Local Authorities – A Still Greater Housing Role for Social Services | William Flack Blog

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