With the Immigration Act 2014 and its obligations to check all tenants have a right to rent coming into force across all of England from February 1, many agents are getting concerned about what they will need to do.
As is often the case with new legislation which is complex, there is some misunderstanding about what needs to be done and when.
This article is focused on one specific issue, but others in this series will focus on other areas of uncertainty as they become obvious.
Currently one of the biggest areas where there is a lack of clarity is exactly when checks need to be carried out.
Clearly they are of limited use if carried out long before the tenancy starts and equally useless if carried out after the tenant has already moved in.
Frustratingly, the Code of Practice is less than clear on the issue and this has led to some inaccurate advice being given. Luckily the legislation itself is very clear indeed.
The Immigration Act 2014 itself tells us at s24(3) that the checks may be made “at any time before the residential tenancy agreement is entered into”.
It is notable that this is referring to the tenancy agreement and not the tenancy itself, and so if an agreement is made before the tenant is due to move in then the checks must be carried out before the date it is made.
That is not the end of the story however.
It is also necessary to comply with the Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order 2014.
This is the piece of legislation that the Code of Practice is (trying) to express in plain language, sometimes not very well!
The Order makes the situation very clear indeed. It states at paragraph 8 that checks must be carried out within “28 days ending on the day before the day on which the residential tenancy agreement which authorises occupation is entered into”.
This Order overrides the Act itself in part by limiting the dates checks can be made on and also overrides any contrary statement in the Code of Practice or elsewhere.
What this means in plainer language is that the checks must be made in the 29 days before the tenancy agreement is executed.
Execution brings the agreement into legal effect and this is the key date for the purposes of the Order. The actual commencement date of the tenancy itself is not important – the execution date of the tenancy is.
That means that if a tenancy is executed in advance of the tenancy term beginning, then the checks must have been done in the 29 days prior to the day that the execution of the agreement occurred, and so (somewhat perversely) anything occurring in the period between execution and tenancy start is not particularly relevant.
Where a tenancy is executed after tenancy commencement, as occasionally happens, then the checks must be made in the 29 days before tenancy start date as that would be the date at which the tenancy agreement would legally come into effect.
While this will not be the only uncertainty with the Right to Rent, it is, fortunately, one of the easier ones to resolve.
On the ground it will be more challenging as some overseas tenants will want the certainty of executing an agreement prior to arrival in the UK, and in order to do so they will have to demonstrate the right to rent first which may be a problem if they cannot be seen face to face or do not yet have a visa.