The government intends to create the new criminal offence as part of the Immigration Bill, which is currently before parliament. It has published a consultation setting out detailed new measures to crack down on “rogue” landlords, which would also include new fit and proper person tests for residential property landlords and create a “blacklist” of persistent offenders.

Communities secretary Greg Clark said that the new measures would “crack down on rogue landlords who make money out of illegal immigration”.

“In future, landlords will be required to ensure that the people they rent their properties to are legally entitled to be in the country,” he said. “We will also require them to meet their basic responsibilities as landlords, cracking down on those who rent out dangerous, dirty and overcrowded properties.”

Since August 2014, private landlords in five councils in the West Midlands have been required to conduct ‘right to rent’ checks on the immigration status of prospective new tenants. The new legislation would formalise this pilot and extend the requirement to private landlords throughout England.

Landlords would also be required to end individual tenancies when that person’s leave to remain in the UK ends. This duty would be triggered by receipt of a notice from the Home Office to confirm that the tenant no longer has the right to rent in England. In some cases, landlords would be able to take this action without first obtaining a court order. However, the consultation does not state what these circumstances would be.

A new criminal offence would be created, targeted at landlords and letting agents that repeatedly fail to conduct the right to rent checks or that repeatedly fail to evict those without leave to remain in the UK. This criminal offence could carry a fine, up to five years’ imprisonment and further sanctions under the Proceeds of Crime Act. A ‘blacklist’ of persistent offenders would also be created, for use by local authorities when deciding where to focus their enforcement action.

Other potential measures set out in the consultation include the introduction of a new fit and proper person test for landlords of properties that have to be licensed; and measures to allow landlords to recover abandoned properties more easily without the need to go to court. To help local authorities, the government has proposed to extend Rent Repayment Orders so that they can claim back rent payments from landlords who fail to maintain properties used by those on Housing Benefit to a good standard; giving them the ability to share Tenancy Deposit Protection data; and giving them the power to issue penalty notices for certain civil offences and the ability to retain any fines for housing uses.

The consultation closes on 27 August 2015.