You have completed your Right to Rent checks, all the adults in the property have passed the checks and moved into the property, however, you receive a fine from The Home Office for £5,000 and up to six months imprisonment. How can this be?
The Immigration (Hotel Records) Order 1972
This legislation is not very well known in the lettings world, however, if you have ever stayed in a hotel and been asked for information about your nationality, it will be in compliance with this piece of legislation.
An article from The Cambridge News stated that officers from the UK Border Agency were going to visit landlords and agents across the city to complete checks on their paperwork in a bid to track down illegal immigrants. The Lettings Update Journal had a story about an Immigration Officer who visited a letting agent in 2018 for a compliance visit – both of these visits were conducted under The Immigration (Hotel Records) Order 1972.
Why is it different from the Right to Rent Checks?
Right to Rent checks have been in force nationally since 1 February 2016 as part of the Immigration Act 2014 (earlier for some areas of the West Midlands). The checks are in place to ensure that people moving into a property have a legal right to reside in this country.
Right to Rent checks should be made by landlords, agents or householders who are renting accommodation or taking in a lodger. The person granting occupation has to check the immigration status of anyone aged 18 or over who will be living in the property (this means permitted occupiers, people not necessarily named on the tenancy agreement but who are living at the property and, of course, tenants). Under Right to Rent landlords should check identity documents, ensure the property is the tenants main home and get proof of right to remain (where necessary). In the case of those from ‘outside the EU’ it is also necessary to check again at the later of 12 months or on the expiry of their Right to Rent whichever is the latter.
The Immigration (Hotel Records) Order 1972 (IHRO) came into operation on the 1 January 1973 as part of the Immigration Act 1971. The order applies to any premises where “lodging or sleeping accommodation is provided for reward” – this includes landlords and agents under the definition of “keeper”, however, a tenant allowing a friend to live with them would be outside the IHRO legislation but not Right to Rent checks. The keeper is someone receiving money on their own account or on behalf of another. The IHRO requires that you must note the name and nationality of every person over the age of 16 who will be staying in the property. If the person is an ‘alien’ (someone who is not a Commonwealth citizen, nor a British protected person nor a citizen of the Republic of Ireland) you must also record proof of identity and nationality as well as their next known destination on departure.
So it can be seen that even if you are vigilantly compliant with Right to Rent checks there are several pitfalls, for example, people aged 16 – 18. We can also see that there are some checks that that you may not be doing, such as collecting the next known destination (which may well be different to the forwarding address provided on the deposit prescribed information).
Penalties for non-compliance
Failure to comply with The Immigration (Hotel Records) Order can lead to a fine and up to 6 months imprisonment. You can also get an unlimited fine or be sent to prison under Right to Rent so it is clear the government is taking laws around immigration within the property sector very seriously.
How do I comply?
The easiest way to comply with the IHRO is to integrate it into your Right to Rent checks. You should already be taking copies of the passports or other ID documents of all occupants over 18. If you are told someone is under the age of 18 you should be taking a copy of their passport or ID documents in order to prove their age – and this will help with article 4(1) of The Immigration (Hotel Records) Order 1972. As the IHRO requires checks for those 16 and over it becomes necessary to be satisfied that someone is under 16 before you can safely ignore them for these purposes. Complying with the IHRO for the 16 and 17 year olds will also be the due diligence evidence to prove they are under 18 for the Right to Rent checks.
With regard to a person who is considered an ‘alien’ article 4(2)(a) states: “on arriving at the premises, inform the keeper of the premises of the number and place of issue of his passport, certificate of registration or other document establishing his identity and nationality.” If Right to Rent checks are being carried out then a record of this will most likely have been fulfilled by copying their passport.
Article 4(2)(b) also covers additional checks to be made on ‘aliens’: “on or before his departure from the premises, inform the keeper of the premises of his next destination and, if it is known to him, his full address there.” In the context of the IHRO and letting agents most tenants will know their new address, whereas with a holidaymaker touring Britain they may not have booked their next hotel yet. As previously mentioned this address may not always be the same as is provided on the deposit prescribed information as they may have provided you with a work or family address where they can be contacted to discuss the deposit. This provision will require you to gain information about where they will physically be after the end of the tenancy. In the unlikely event, they don’t know an address, you can find out if they will be staying in the UK, if so will they be staying in the same area or moving?
Note that the definition of ‘alien’ includes citizens from Europe, even though they do not need visas etc to live in the UK (currently!). This means that their next destination should be recorded, even though you never have to repeat the Right to Rent check.
The Immigration (Hotel Records) Order requires that records are kept for 12 months after the visit. This links in nicely with Right to Rent checks where the authorities can only come back within one year from the tenant leaving, so at that point records are no longer needed for either purpose. For GDPR purposes the requirement to collect and store this information should be declared on your data analysis with your lawful basis for processing being ‘compliance with the law’. As with Right to Rent checks, they must be deleted or otherwise destroyed 12 months after the end of the tenancy as you have no further lawful reason to retain them.
Hotel Records Order: In Summary
Although there are a lot of similarities with the Right to Rent checks there are two key differences. Firstly the need to check those who are 16 and 17. Secondly the need to collect next destination information for ‘aliens’. It should prove a small step for landlords and agents to extend their processes to be compliant, but only if you understand the rules.
