Residential Properties and the Immigration Rules

11 Dec 2015

We all know the government is trying to stem the flow of migrants. The politics require no elaboration but don’t forget demographics; there are insufficient houses and public services to accommodate population growth in the next 20 years. This is the context in which the immigration Act 2014 tries to prevent illegal migrants from accessing housing.

Landlords or their agents letting a residential property to a tenant who is not a citizen of the UK, an EEA Member State or Switzerland will be subject to a penalty unless they have the statutory excuse – that a documentary check of the tenants right to rent was made before the tenancy was created. The fine for a first offence is up to £1,000 rising to £3,000 for a subsequent offence. I expect offenders to be publicly “named and shamed” and the government’s publicity machine to dream up a new epithet as “rogue” is a bit dated.

The key details are:

  • this has applied in Greater Birmingham since last year and will be applied elsewhere on 1 February;
  • it applies to any tenancy, lease, sub-lease or licence which grants a right of occupation for residential use;
  • it applies to occupiers (including lodgers) as well as tenants and licensees;

it does not apply to:

  • local authorities;
  • social housing schemes;
  • care homes, hospitals & hospices;
  • service occupancies (because the employers checks apply).

Landlords must also comply with the Equality Act so should not discriminate, especially on grounds of nationality or ethnicity. The key issue here is not to make assumptions so I advise landlords to make immigration status checks on all prospective residential tenants or occupiers.

I’m happy to provide guidance on acceptable documents but for the time being note that contrary to popular belief, driving licences and NIC cards are not acceptable on their own. Also note:

  • original documents must be seen and checked in the presence of the holder;
  • copies must be taken and retained with a note of the date on which the check was made;
  • the retention of the copies must comply with data protection principles.