The Current Position
Landlords will already be aware that since the Immigration Act 2014 came into force it is unlawful for private landlords to let residential properties to adult tenants if the adult is disqualified from doing so by their immigration status. An adult is disqualified if he is not a British or EEA national and does not have permission to remain in the UK.
For all residential tenancies entered into after 1 February 2016 landlords have been required to check the status of their residential tenants to ensure they have the right to remain in the country and to document the checks they have carried out. For further information on the checks that are required please see our earlier blog ‘The right to rent‘
However, the letting of premises to someone without the appropriate immigration status was not a criminal offence – the landlord was only at risk of being made subject to a civil penalty. This has now changed.
What’s New?
From 1 December 2016 new rules came into force which introduce a new criminal offence and criminal sanctions if a landlord fails to comply with his obligations.
A landlord will commit a criminal offence if the premises let are occupied by a disqualified adult under a residential tenancy agreement in circumstances where the landlord knows or has reasonable cause to believe that the premises are so occupied.
The offence is also committed if the adult was originally qualified to occupy the premises but has since lost the right to do so and continues to occupy the premises and the landlord knows or has reasonable cause to believe that the adult is no longer qualified to occupy the premises.
Serious sanctions have been introduced to enforce this offence. The sanctions range from an unlimited fine to five years imprisonment or both.
A defence will be available if the landlord can prove they took reasonable steps within a reasonable period of time (of having cause to believe the adult did not have the right to remain in the country) to terminate the tenancy agreement.
To help, the new rules make it easier for landlords to evict illegal immigrants from their property. A new mandatory ground for possession has been introduced. A landlord will be able to serve a notice on a tenant (a section 8 notice) which will end the tenancy (without a court order) within 28 days of it being served, where the landlord has been notified by the Secretary of State that an occupier of the premises is disqualified from renting the premises because of their immigration status.
What should you do?
Accordingly, these rules (and those introduced earlier this year) make landlords (and agents) responsible for carrying out immigration checks on occupiers of their properties. This is no easy task and there are significant risks to landlords and agents who fail to comply with these new rules. Landlords need to check the tenant’s documents carefully and keep clear records of their checks. Landlords may also want to amend their tenancy agreements to make it a condition of the tenancy that the occupier has the right to rent and obliging the tenant to produce the documents when requested by the landlord so checks can be carried out.
Contact Us
Jacqueline Penfold, Partner and Head of Department, Litigation and Employment
If you require any further information on this issue or any other landlord and tenant issue , please contact Jacqueline Penfold by:
- phone on 01323 727321
- email at jpenfold@hartreade.co.uk
- or by using the form below:
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Please note the above is for information purposes only and is intended to be a short summary. It should not be treated as a comprehensive guide and should not be acted on without qualified legal advice.
