Right to Rent Scheme introduced across England from 1 February 2016

In our " Immigration Act 2014 imposes identification burden on Landlords" article, we discussed how the introduction of provisions of the Immigration Act 2014 would result in residential Landlords being obliged to ensure that any adult occupant of a rented residential property was entitled to live in the UK Often referred to as the "Right to Rent Scheme"), whilst in our "Immigration Act 2014 - Pilot schemes for tenant identification obligations" article, we highlighted that the Scheme was to be piloted in the West Midlands from 1 December 2014.

Following a review of the Pilot, the Government has confirmed that the Scheme will apply to all residential landlords and agents letting or subletting residential properties in England from 1 February 2016.

Within 28 days before the start of a tenancy coming into being on or after 1 February 2016, a landlord or their property agent must check that each adult (being persons 18 years and older) that will be residing at a residential property as their main or only home under any type of tenancy or as a lodger has the right to reside in the UK. These checks must be carried out irrespective of whether the tenancy is in writing and irrespective of the Landlord's or agent's belief as to the intended residents right to reside. The primary obligation for carrying out the checks rests with a property owner but the obligation can be passed to letting agent provided that this is agreed in writing between the property owner and letting agent.

Landlords or their agents should:-

1. Establish how many adults will be residing at the property as their primary/only residence, irrespective of who is named as the tenant in any tenancy agreement.
2. Obtain original documents evidencing each individual adults right to reside in the UK. A Right to Rent Landlord's Code of Practice has been issued by the Government and contains 2 lists - List A and List B - which sets out the documents which are acceptable as proof of an individual's right to reside in the UK
3. Check each individual's documents in their presence so as to be satisfied that the documents and both genuine and also relate to that individual. If in doubt, do not accept the document, at least not without further checks being carried out first
4. Make copies of any documentation received and accepted as evidence of an individual's right to reside in the UK and retain these documents for the duration of the tenancy and for at least 12 months after the tenancy expires.

A civil penalty of up to £3,000 could be imposed if a property is occupied by an individual who does not have the right to reside in the UK, and the Landlord or agent cannot show that they checked that the occupant had a right to rent.

As reported in our Immigration Act 2014 imposes identification burden on Landlords article, certain Landlords - social housing and care homes - will be exempt from the checking obligations, whilst the Scheme will also not apply to tenancies for a duration of more than 7 years.

In addition to carrying out checks upon the right of each adult occupant of a property to reside in the UK prior to the occupation of a property commencing, Landlords and their agents should also keep under review each occupant's right to reside in the UK. A provision should also be added to their Tenancy Agreements which expressly states that the Tenant must at all time ensure that the Tenant and/or any adult occupant of the property has the right to reside in the UK and notify the Landlord/the Landlord's agent if that situation changes.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.