Right to Rent means that a tenant or potential tenant has a right to rent your property. Under the Immigration Act 2014 (‘Act’), private landlords are under a duty to check the immigration status of a potential tenant, i.e. whether they have a right to be in the UK.
The aim is to ensure every adult tenant has a right to live and rent accommodation in the UK before being granted a tenancy. This means that those who seek to evade immigration controls and enter or remain in the UK without any legal right are not allowed to rent your property. It is important to note that regardless of your perception of the person’s origin or British citizenship status, you must check ALL potential occupants aged 18 or over, even if they are not named on the tenancy agreement or even if there is no written tenancy agreement.
As a landlord, you have a responsibility to restrict those who are not in the UK legally from accessing the private rented sector. Under section 22 of the Act, a landlord should not authorise an adult to occupy property under a residential tenancy unless the tenant is a British citizen, a European Economic Area (EEA) or Swiss national or has a ‘Right to Rent in the UK’ i.e. they are in Britain lawfully in accordance with the immigration rules.
Do Right to Rent checks apply to all landlords in the UK?
Although the Right to Rent scheme is not fully enacted and so does not apply as yet to Scotland or Wales, it has been implemented in England since February 2016. This means that at the moment if you are a landlord in Wales or Scotland there is no legal obligation to check the immigration status of prospective tenants, although the obligations are expected to follow England and therefore you will need to be aware of upcoming changes.
Will it apply to me?
This will apply to property under a lease or tenancy agreement, occupiers who sublet and if you take in lodgers to share your accommodation. It does not apply to house guests who are not paying rent or if they do not live in the property as their main home. The types of accommodation for which you’re not required to undertake checks include social or local authority housing, care home, hospital, hostel or refuge, mobile home, tied accommodation, student accommodation or where there is a lease of 7 years plus.
What will be the consequence of not observing the Right to Rent rules?
If after it is applicable to you, you have been renting the property contrary to the immigration rules, the secretary of state can serve a notice on you with a financial penalty under section 23 and in some cases imprisonment of up to 5 years if it is found that you knew or had reasonable cause to believe the tenant didn’t have the Right to Rent in the UK. The only statutory excuse allowed to avoid the penalty is to conduct simple document checks before allowing occupation of rented accommodation to those who do not satisfy the Right to Rent check.
How do we know if a prospective tenant has the Right to Rent?
The majority of people will have an unlimited right to rent which includes British citizens, EEA members or Swiss nationals and those who have been given ‘indefinite leave to remain’ i.e. they have no time limit on their stay in the UK.
Those with a time-limited right means they have leave to enter or remain in the UK for a limited period of time or they are entitled to enter or remain under EU law. An example of this could be qualifying family members of EEA nationals. These people will have documentary evidence to demonstrate their right to stay in the UK for a specific time. The important point to remember is conducting follow up checks.
In regards to those who have no right to rent and are not allowed to occupy residential accommodation because they do not have permission to be in the UK, allowing this group of illegal migrants to occupy a property for use as their only or main home may be cause for a civil penalty. The only exception would be if the secretary of state has permitted them to rent in the UK.
How do landlords make Right to Rent checks?
You must obtain original documentation from the prospective tenants and check if they are genuine and not tampered with. Any supporting documentation such as a marriage certificate, divorce decree or deed poll must be obtained to evidence any name discrepancy. If you find the tenant is only allowed to stay in the UK for a limited time, you will need to do the check in as well as the following 28 days before the start of the tenancy:
- Establish the adults who will live in the property as their only or main home.
- Obtain original versions of one or more of the acceptable documents.
- Check the documents in the presence of the holder or by video link.
- Make dated copies of the documents and retain them until at least one year after the tenancy has ended.
- Checks include ensuring that details such as photographs and dates of birth are consistent across documents.
- Check expiry dates for leave to remain in the UK have not passed or are not due to pass if so, arrange to conduct follow up checks.
- Check reasons and supporting documentation for any name discrepancies.
Landlords are required to undertake all reasonable steps to check a document’s validity and will not be penalised if they have been fooled by a good forgery which appears genuine.
What are Right to Rent ‘Follow up checks’?
If you have rented to someone who has a time-limited right to rent, you must show that you have conducted follow up checks. Any new landlord with sitting tenants, tenants that have remained in place when a property has been sold and purchased; must also conduct document checks and follow up checks. If your checks show that the tenant no longer has a right to rent, you must report this to the Home Office as soon as is practicable. Landlords can obtain a notice from the Home Office to end a tenancy.
Where the right to rent checks are satisfied the Landlord has a time-limited statutory excuse. Follow up checks need to be undertaken before this expires, usually 12 months or until the expiry of the permission to be in the UK. A Landlord needs to request from the occupier proof of their continued right to rent in the UK.
Practical advice: be diligent with Right to Rent checks and record-keeping
The most important step you as a landlord should take to ensure that you are compliant with the Right to Rent law is to keep dated records of the diligent checks that you have undertaken, for people who occupy your property.
If you have used an agent to act on your behalf, they will be responsible in your place. The statutory code has been issued under section 32 of the Act 32014. For further information visit the Government code of practice page. Evidence of adherence to the code could be used in legal proceedings and when the Home Office administers civil penalties. It helps a landlord avoid breaching section 22 of the Immigration Act 2014.
Finally…
The obligations are not currently applicable in Wales or Scotland but as this is likely to change soon, it is something for landlords to consider when requesting proof of ID from prospective tenants. Remember also that landlords should check all prospective occupiers before granting a tenancy without regard to race, religion or other equality grounds to avoid discrimination.
If you would like to speak to someone regarding the above or any other legal query related to rental properties, please contact our dedicated Property Team.
