“Regulation beyond the echo chambers”: who is listening?
The Immigration Act 2014, which received royal assent on 14 May, requires private landlords of residential properties to keep a regular check on the immigration status of their prospective tenants, and other authorised occupiers. Landlords must also make sure that someone’s right to occupy the property does not lapse. Failure to comply could lead to a civil penalty of up to £3,000.
A person is disqualified from occupying property under a residential tenancy agreement if they are not a British citizen, a national of an EEA State, a national of Switzerland or do not have a right to rent in relation to the property. A person does not have a right to rent if they require leave to enter or remain in the UK and do not have it, or they have left, but it is subject to conditions that prevent them from occupying the property.
A landlord will have to review a tenant or prospective tenant’s documentation to determine whether they have a right to rent. Where it is not clear whether such right exists, landlords will be able to submit either a website or phone line enquiry. The email service will have a turnaround time of no longer than 48 hours. After this period, they are entitled to rent the property to the proposed tenant. This would be modelled on existing employee checking services which exist to prevent illegal working.
The primary objective of the act is to make it more difficult for illegal migrants to gain access to privately rented accommodation and deter disregard for immigration rules. It is intended to benefit those communities blighted by illegal structures and overcrowded houses. The Home Office suggests that landlords may also benefit from lower losses of rental income because of the stringent tests put in place.
However, there will be an additional administrative burden for landlords, prompting questions as to whether landlords should be saddled with the burden of policing the immigration system. The onus on the landlord to make annual checks on tenants and obtain and store information obtained from tenants compliant with the Data Protection Act is time-consuming, and could make it more appealing for a landlord to take on a British person or one with indefinite leave to remain as a tenant. This could become a potential discrimination issue. The government will therefore have to issue codes of practice for landlords, including one to assist in the prevention of any discrimination or racial profiling.
The government has indicated that the new scheme will be subject to a phased implementation and it is unlikely to be fully rolled out prior to the 2015 general election.
First published in Property in Practice, the Law Society’s property law magazine, September 2014.
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