The Right to Rent scheme, which requires landlords or agents in England and Wales to check immigration status of all prospective adult renters, came into force in May 2014. This scheme was put in place to tackle illegal immigration and protect public services and access to the private rented sector for lawful residents.
Earlier this month, the Home Office announced that as of 1 December 2016, Right to Rent checks are now mandatory and failure to conduct them will be a criminal, rather than a civil, offence.
That means that after the first of December, landlords could be charged with a criminal offence if they know, or have reasonable cause to believe, that they are letting to an illegal migrant. Moreover, landlords will be able to obtain a notice from the Home Office to end tenancies for occupants with no Right to Rent.
The vast majority of landlords who are found to be renting to illegal migrants and who have not carried out Right to Rent checks, where the scheme has been implemented in their area, will be dealt with under the civil penalty regime. The new offences will be targeted at the smaller number of rogue landlords who are intent on flouting the law.
This means assignees really can’t secure offers on property ahead of visa issuance or far in advance of their work start date. Assignees can still go on a house hunting trips in advance of their visa being issued but the start date of a lease can’t be set until the visa is in place. Assignees can still come to the UK and agree an offer on a property if they already have their visa work/permit or are a British or EU National.
An assignee can sign a Tenancy Agreement with a temporary/visitors or time limited visa. Ultimately the agent or landlord must see and validate their longer term visa once this is issued or on renewal of the tenancy term.
The Landlord or letting agent will need to check the immigration status for the tenant on any renewal of the tenancy if the tenant requires a visa or work permit to work in England & Wales. They do not need to do these checks on tenancy renewal for British or EU nationals (at present!)
Right to rent checks need to be carried out for all occupants over the age of 18 whether or not they are named on the Tenancy Agreement. This applies to all renters, UK and EU citizens as well as foreign nationals, including children (over 18), au pairs, nannies etc. The only exclusions are house guests – i.e guests that stay for less than 3 months although this time frame is not cast in stone.
When the spouse and children are not joining the assignee until after the start date of a tenancy and the landlord has not been able to do the Right to Rent check within the 28 days prior to the tenancy start, the Tenancy Agreement will initially need to be in just the name of the assignee. Once the spouse and children have arrived in the UK and the Right to Rent check has been completed, their name(s) should be added to the Agreement at that time. Some agents will charge for the Tenancy Agreement to be amended in this way and some will not.
If the Tenancy Agreement for an assignee is going to be in the Company name, Right to Rent checks do not need to be carried out. HMRC takes the view that any Company would have made sure their relocating employees had the necessary work permits/visas before coming to work in the UK and the onus is on the Company to make sure that proper visas/permits are in place.
It has never been advisable that assignees sign Tenancy Agreements before they have been issued with a visa, yet some have still opted for this route. It is now imperative that assignees wait until they have a visa in place to sign a lease.
Thanks to Jonny Stearn of our EMEA office for providing content for this post.