Landlords or immigration officers?

Should the changes proposed by a recent Immigration Bill come into effect, the duties of a landlord could well be evolving more than some would like.

Landlords will be required to carry out immigration status checks on prospective tenants if a new Immigration Bill is passed into law.

The Bill contains various proposals to deal with illegal immigration. Under the legislation it could become illegal to grant a periodic tenancy, a tenancy with a term of less than 21 years, a licence or a lodging arrangement to an illegal immigrant.

There will be exceptions for some types of accommodation including care homes, hostels and hotels (if the occupier is staying for less than three months). Those staying in student housing would also be excluded if the provider is a recognised educational body.

This new duty is based on the existing requirement for employers to check the immigration status of new members of staff. But it will also extend to letting agents where the agent is required, under the terms of its agreement with the landlord, to carry out the checks.

The Home Office has published a list of documents that landlords can use to check the prospective tenant’s immigration status. It has been made clear that landlords are not expected to be experts in ascertaining the validity of the documents, and that guidance will be issued to them. This will be aimed to help landlords recognise the documents that are acceptable as evidence of immigration status.  

This means that the landlord will not have breached his duty if he was taken in by a forged document; provided the forgery would not have been obvious to a reasonable person.

Simply put, all the landlord has to do is take reasonable steps to check the prospective tenant’s immigration status?

Not quite. The duty does not only apply to the prospective tenant but also to any other adult that is expected to be a resident under the tenancy. Even when there is no legal relationship between this third party and the landlord. 

There also remains a recurring duty on a landlord to check the status of their existing tenant(s) who had temporary permission to live in the UK when the lease was granted. If a landlord (or his agent) cannot show that reasonable steps were taken to check the immigration status of their tenant, they may face a fine of up to £3,000.

The potential effects of the new rules are already dividing opinions. On the one hand, they may lead to blanket discrimination by some landlords against all foreign immigrants, including those with the proper rights to reside. On the other hand, they may result in some unscrupulous landlords using the rules as a means of gaining an upper hand against any suspected illegal immigrants.

Presently, the divisions over the policy have forced the pilot of the scheme to be restricted to a single area. Rolling out the scheme nationally will take some time; such is the impact of these ambitious proposals.  

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