The Home Office is consulting on legislation to make it more difficult for illegal migrants to rent private accommodation. Paul Pinder explains what the proposed changes would mean for landlords
The Home Office is seeking views from landlords and agents on the impact of proposed legislation which aims to make renting private accommodation more difficult for illegal migrants. Although the aim is to cut illegal immigration, many landlords will see the imposition of further red tape as shifting the burden of immigration away from the government and onto the public sector.
Impact
The planned rules will affect around four million residential dwellings and derive from the requirement for employers to check employees’ immigration status under the Immigration, Asylum and Nationality Act 2008. This arrangement has been in place for five years, and it is claimed that it has assisted in reducing net migration by more than a third since 2010.
Some 55% of people who are not British or Irish residents live in the private rented sector – around 26% of tenants. As social housing already requires immigration checks, illegal migrants are more likely to be living in private rented accommodation, particularly unlicensed houses in multiple occupation.
Effect on landlords
When someone is to take a lease of residential property as their main or only home, the proposed tenant will need to produce evidence of their immigration status. For British citizens, this can be a passport or driving licence. For foreign nationals this will usually be their visa, residence card or asylum registration card together with a copy of their passport. Unless it is “reasonably apparent” that the document is forged or fraudulent, landlords will not be expected to be experts in immigration law.
The landlord must keep a copy of the evidence for a minimum period (not yet set down in legislation but probably 12 months from when the tenant stops living in the property). Landlords can expressly delegate responsibility to a letting agent or other commercial company, which will further reduce the administrative burden.
Current landlords will be pleased to note that there is no retrospective obligation to check tenants already in occupation. However, if the lease is renewed, a failure to verify documents at that point will incur liability. Additionally, the landlord will be required to repeat the check periodically. If the tenant only has a time-limited permission to stay in the UK, then the landlord needs to repeat the process. However, this will not need to be done more than once a year (even if the tenant’s right to remain runs out before then).
Duty to report
Even if a landlord thinks that the proposed tenant is an illegal migrant or that after the grant of the tenancy other people are living in the property, there is no duty to report to the Home Office. Of course, it would be prudent to volunteer information so as to avoid the risk of what the consultation calls a “misunderstanding” of the landlord’s position. Reporting concerns to the Home Office gives the landlord a “statutory excuse” against any penalty which might otherwise be payable.
What may be more of an issue is the requirement for the landlord to check not only the status of the person who signs the tenancy documents or puts up the rent but also to take “reasonable steps” to find out who is actually going to be living in the property. The proposals do not outline how far a landlord would need to delve, and as there will be no additional rights of entry for the landlord, it would be very difficult to find out if there were other people in occupation. However, there is no duty to monitor the situation; if an illegal migrant is found to be in occupation but was not one of the people disclosed to the landlord, the landlord will not be liable.
Penalties
Penalties depend on whether the landlord is a regular offender. For a first offence, £1,000 per illegal migrant is charged as a basic penalty, which jumps to £3,000 per illegal migrant if the landlord has previously been caught in the past three years. Appeals can only be on the grounds that:
? the landlord is not liable (for example, the relevant party is not in fact the landlord, the property is exempt or the illegal migrant is a squatter);
? the landlord has a statutory excuse (such as having previously reported concerns to the Home Office or having carried out all reasonable steps to find out who would be living in the property); or
? the fine is too high.
Next steps
The government is preparing an impact assessment to consider how the proposals will affect different groups. A suggested benefit is lower losses of income to landlords because of more stringent tests, but there will obviously be administrative costs to consider, as well as increasing the amount of data that landlords or agents hold about their tenants, which they have duties to secure, protect and eventually destroy under the Data Protection Act 1998.
The plans, while being relatively straightforward, quick and inexpensive, are a layer of bureaucracy that the private rented sector could do without. There will still be unscrupulous landlords willing to turn a blind eye to extra occupants who are not named on the tenancy documents, and it seems unlikely that the new system will have any meaningful impact on illegal migration. However, it is hoped that this shouldn’t burden the honest landlord and tenant any more than current financial checks do.
The consultation closed on 21 August 2013 and can be accessed at www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/consultations/33-landlords
Paul Pinder is a specialist in residential law and senior associate at Nabarro LLP