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The Right to Rent – Explanation & Analysis.
Using Landlords and Letting Agents as Immigration Officers.
3rd March 2017
The combination of the relevant provisions of the Immigration Act 2014 and the Immigration Act 2016 have brought the Right to Rent scheme to the private rented sector along with severe penalties for non-compliance.
The Right to Rent scheme applies to landlords (including occupiers subletting and those who take in lodgers) and letting agents that rent out private accommodation to adults, as their only or main home; under a tenancy agreement (which includes a lease, licence, sub-lease or sub-tenancy) or otherwise. In other words, this applies whether anything is in writing or not, to any grant of the right of occupation of a property for residential use in return for the payment of rent.
The scheme applies to all residential tenancies from assured shorthold tenancies to lodgers with some limited exceptions such as accommodation arranged by a local authority, social housing, care homes, hospitals, hospices, accommodation arranged by the National Health Service, hostels, refuges, mobile homes, accommodation provided by employers to employees, accommodation provided by higher or further educational institutions to students and long leases of seven years or more.
The Right to Rent scheme first came into effect on 1st December 2014 in the West Midlands, and the rest of England on 1st February 2016, with the intention of the Government to implement the relevant provisions in the rest of the United Kingdom i.e. Scotland, Wales and Northern Ireland in due course.
Right to Rent Scheme
In effect individuals will fall into one of the three categories below which will determine whether or not they have the Right to Rent in England:
First Category: Unlimited Right to Rent in England
Those individuals who are British Citizens, European Economic Area Nationals (‘EEA’) i.e. Nationals of; Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden, Nationals of Switzerland and those with a; Right of Abode in the United Kingdom, Indefinite Leave to Remain in the United Kingdom (presumably Indefinite Leave to Enter the United Kingdom is also included) or No Time Limit to reside permanently in the United Kingdom will have an unlimited Right to Rent in England.
Second Category: Time-Limited Right to Rent in England
Those individuals who do not fall into the First Category and have a valid leave to enter or leave to remain in the United Kingdom (presumably entry clearance to the United Kingdom is also included) whether under the Immigration Rules (for example, Tier 1, Tier 2, Tier 4, Tier 5, Spouse etc) or under European Union/Communities Law (for example, Qualifying Family Members of EEA Nationals etc) will have a time-limited Right to Rent in England.
Third Category: No Right to Rent in England
Those individuals who do not fall into either the First Category or Second Category will simply have no Right to Rent in England and the general legal position is that landlords and letting agents must not rent out private accommodation to these adults.
Such individuals may however seek permission from the Secretary of State for the Home Department (‘the SSHD’) for a Right to Rent in England and if this discretionary power is exercised in favour of the individual then landlords and letting agents would be able to rent out private accommodation to them.
Landlords and letting agents must carry out the Right to Rent checks in accordance with the Home Office: Code of Practice on Illegal immigrants and private rented accommodation and if the individual:
- can produce a document from List A, Group 1 or a combination of two documents from List A, Group 2 then the individual will fall into the First Category and will establish a continuous statutory excuse and no follow-up checks will be required to be undertaken
- can produce a document from List B then the individual will fall into the Second Category and will establish a time-limited statutory excuse however follow-up checks will be required to be undertaken
- cannot produce a document from List A, Group 1 nor a combination of two documents from List A, Group 2 nor a document from List B, but has an application outstanding with the Home Office, or an appeal against the Home Office, or their documents are with the Home Office, or they have been given permission by the SSHD to rent, then a verification of the Right to Rent must be made via the Home Office’s Landlords Checking Service for an answer in the affirmative, otherwise there will be no Right to Rent.
More details on the required document checks can be found in Right to Rent Document Checks: a User Guide.
It is against the law for landlords and letting agents to discriminate against individuals in conducting the Right to Rent checks on grounds of any protected characteristics as set out in the Equality Act 2010. These include race, nationality, national or ethnic origin and colour.
These Right to Rent checks must be undertaken by landlords and letting agents against all individuals aged 18 and over, and not only on certain prospective tenants/occupiers/lodgers, for example, based on appearance. If successful and the individual has the Right to Rent, to then offer a tenancy agreement on the basis of actual period of leave to remain in the United Kingdom would be construed as discriminatory in law.
The landlord is responsible for undertaking and carrying out the legal Right to Rent checks unless a letting agent has been appointed, in which case the legal responsibility lies with the latter. The arrangement between the landlord and the letting agent must however be confirmed in writing including expressly confirming the legal responsibility of the letting agent to undertake the Right to Rent checks for the landlord to avoid legal liability and penalties.
Where a tenant/occupier sublets the property, it will usually be the legal responsibility of the tenant/occupier to carry out the Right to Rent checks, as opposed to the main landlord, as they will in effect be treated as the landlord for the purposes of occupation by sub-tenants/sub-occupiers, unless it is agreed in writing that the main landlord, as opposed to the tenant/occupier, will be legally responsible for conducting the Right to Rent checks. In this case, especially given the legal liability and penalties for breaching the laws, the main landlord should make notice to subletting and consent a prerequisite before the tenant/occupier sublets the property. This is so the main landlord can then closely monitor whether the legal obligations and requirements of the Right to Rent scheme have been met.
It seems that a landlord or letting agent would not be held liable for unauthorised subletting by a tenant/occupier however much will depend on the circumstances of each case and over time what is acceptable is likely to be tested by the Courts.
If there is a suspicion that any of the laws in the Right to Rent scheme have been breached by a landlord or letting agent then initially a Referral Notice may be issued and sent by the SSHD informing them and putting them on notice that they are under investigation.
The landlord or letting agent would then be sent an Information Request providing them with an opportunity to put forward any further information and evidence in support.
After consideration of the case including all of the information and evidence provided by the landlord or letting agent the SSHD will then proceed to make one of two decisions either:
- a No Action Notice or
- a Civil Penalty Notice.
In the former the landlord or letting agent will have been deemed by the SSHD to have complied with the Right to Rent checks and not liable for any civil penalty.
In the latter however the landlord or letting agent will be liable to pay a civil penalty of up to £3,000.00.
In the latter the landlord or letting agent may provide a written Objection to the Civil Penalty Notice within 28 days of the date specified by the SSHD in the Civil Penalty Notice on grounds that:
- they are not liable for a civil penalty
- they have a statutory excuse, or
- the level of civil penalty is too high.
The SSHD will thereafter consider the written Objection and provide an Objection Outcome Notice within 28 days.
If the Civil Penalty Notice is maintained by the SSHD whether at the same, lower or higher level or no Objection Outcome Notice is made within 28 days then the landlord or letting agent may Appeal against the Civil Penalty Notice to the appropriate County Court in England within 28 days of either:
- the deadline date as stated in the Objection Outcome Notice or
- the deadline date by which an Objection Outcome Notice ought to have been received from the SSHD if not made
on grounds that:
- they are not liable for a civil penalty;
- they have a statutory excuse; or
- the level of civil penalty is too high.
In addition to a civil penalty, landlords and letting agents (with similar provisions in force to that of landlords though not covered below) from 1st December 2016 onwards may be prosecuted and face a criminal penalty if:
- the private accommodation is occupied by an adult under a tenancy agreement and they are disqualified from doing so as a result of their immigration status i.e. do not have the Right to Rent; AND
- the landlord knows or has reasonable cause to believe that the private accommodation is occupied by an adult under a tenancy agreement and they are disqualified from doing so as a result of their immigration status i.e. do not have the Right to Rent.
If a landlord is prosecuted they may possibly have a defence under the Immigration Act 2014 (as amended) to the charge(s) laid and if proved this could result in acquittal and therefore tno criminal penalty.
If however a landlord is convicted either by pleading guilty or after a trial then:
- the Magistrates’ Court can sentence him/her to Imprisonment of up to six months (and once Section 154(1) of the Criminal Justice Act 2003 comes into force then imprisonment of up to 12 months) or a Fine of up to an unlimited amount or both; or
- the Crown Court can sentence him/her to Imprisonment of up to five years or a Fine of up to an unlimited amount or both.
In effect Parliament has legitimised the Government’s draconian stance which imposes a mandatory legal duty on all private landlords and letting agents to effectively undertake the jobs of immigration officers, which should ordinarily be undertaken by the State. The UK Government it seems, is either unable or unwilling, to carry out this part of its ordinary duties and responsibilities towards a fair and civic society.
Further, a failure to carry out these new legal duties may potentially result in not only civil but criminal sanctions against otherwise ordinarily law-abiding landlords and letting agents. This appears to be a wholly unjust, unfair and disproportionate system of achieving immigration control.
Further, even though the Immigration Act 2014 specifically deals with, and deems it contrary to the law, for landlords and letting agents to discriminate against individuals in conducting the Right to Rent checks (see Home Office: Code of Practice for Landlords), a recent report compiled by the Joint Council for the Welfare of Immigrants (‘the JCWI’) in February 2017 (Passport Please: The Impact of the Right to Rent checks on migrants and ethnic minorities in England) (‘the Report’) has come to the conclusion that the whole Right to Rent scheme is discriminatory against foreign nationals, black and minority ethnic groups and those without clear documentation including British Citizens without passports.
The Report has found that those individuals who fall into the Third Category and do not have a Right to Rent but where the SSHD ought to have exercised their discretionary power in favour of such individuals to grant them a Right to Rent (for example asylum seekers, victims of human trafficking and stateless persons), this is routinely not granted. As a result landlords and letting agents do not rent out private accommodation to them and consequently these vulnerable members of society are not only unlawfully discriminated against, but also left in a state of limbo as they are unable to acquire the housing and shelter which is a basic necessity for all mankind.
It is reasonably foreseeable that landlords and letting agents could unlawfully discriminate against individuals even though they may automatically have leave to enter/remain in the United Kingdom under Section 3C of the Immigration Act 1971. This could be for example if a valid in-time application has been made to the Home Office before their leave expired, or a valid in-time appeal or administrative review has been lodged against the decision(s) of the Home Office. When leave to enter/remain in the United Kingdom is extended under Section 3C, the SSHD does not generally issue these individuals with any written documentation to prove that such previous leave has been extended in law on the same conditions as before. Consequently, landlords and letting agents may deem them not to have a Right to Rent which may not necessarily be the case, especially if a Right to Rent check via the Home Office’s Landlords Checking Service has not been undertaken.
The Report also provides numerous recommendations of which the main one is that the Right to Rent scheme is not working and must be brought to an end and abandoned. However, until such time that the Government listens to this advice, the Right to Rent scheme remains law. Landlords and letting agents must continue to abide by it and undertake this mandatory, unpaid role as quasi-immigration officers. Consequently, it is essential that landlords and letting agents receive the correct legal advice on all of the steps to be taken at each stage – ranging from conducting the Right to Rent checks, to any lawful challenges that can be made against a Civil Penalty Notice made by the SSHD, or responding to charge(s) brought against them in the criminal courts.
This document was written by Aston Brooke Solicitors’ Property Department. For specific legal advice on your case please contact us on +44 (0)203 475 4321 and a member of our team will be able to assist you.
Disclaimer: this article is for general information purposes only. It does not present a detailed statement of the Law and does not constitute as legal advice. This is a summary only, and legal advice should always be sought on an individual case basis.