Landlords are responsible for checking a prospective tenant’s immigration status and their consequent ‘right to rent’ private residential accommodation. These checks apply to all new tenancy agreements in England since 1st February 2016 and apply to all occupants over 18 using the property as their main home. If a tenant only has a temporary right to stay in the UK, the landlord may rent to them but will have to do a follow-up check before the expiry date of their right to stay.
The landlord has to establish the prospective tenant’s immigration status by checking their ID to confirm that they are either a British Citizen, a national of the European Economic Area (EEA) or Switzerland, or otherwise has the right to rent in the UK. These rules, which apply in England only, are found in Section 22 of the Immigration Act 2014. The Home Office is currently working with the Scottish, Welsh and Northern Irish governments on a plan for implementation across the UK.
For Landlords
Anyone who accepts payment to provide an individual with their main accommodation is a ‘landlord’ for these rules. This includes someone who is renting a room in their home to a lodger, an agent appointed to act on behalf of a landlord, or someone who is subletting a property.
In the latter case, where there is a subletting landlord, they can agree with the head landlord about which of them has the responsibility for right to rent checks. However, if the head landlord doesn’t confirm in writing that they accept this, the responsibility will automatically default to the subletting landlord.
The landlord should keep copies of ID documents (either a clear photocopy or digital copy) and record the date that these were obtained. They should keep these copies for at least one year after the end of the tenancy.
If a landlord is found letting to a tenant who doesn’t have the right to rent, they could suffer serious consequences. Failure to demonstrate having undertaken due diligence in establishing a prospective tenants right to rent risks a fine of £3000 and even jail time.
However, the landlord can cover their risk by performing all the necessary checks. If they can show that they had no apparent reason to doubt the authenticity of documents that later turn out to be fraudulent, the landlord won’t be liable.
If a tenancy started before 1st February 2016, the landlord doesn’t need to carry out retrospective checks. However, if the home office has notified them of the tenants known illegal status, the landlord is obliged to start proceedings to evict the tenant.
The Check
To establish a prospective tenant’s right to rent, the landlord or agent must obtain, check and copy a valid form of identification such as a UK passport, a residence permit card or travel document showing indefinite leave to remain. A full list of documents can be found at the government’s website (see link below).
Normally, checking documents should be done in person to ensure that there’s an obvious match, with the photos showing a satisfactory likeness to the person.
For a tenant trying to arrange a tenancy from overseas, it is advised to do a check via video call and then agree the tenancy subject to an ID check in person on arrival. During the covid pandemic, it has also been allowed to do checks via video call.
If the person is a British citizen, or a national of one of the EEA countries, or a non-EEA national with the confirmed right to be in the UK permanently, it isn’t necessary to do more than an ID check.
If the tenant’s permission to stay in the UK is time-limited, it is allowed to rent to them, however, the landlord must make a follow-up check. The information on a temporary right to stay is found on the tenant’s passport visa, passport stamp or biometric residence permit, and it is important to note the expiry date. The landlord must perform the follow-up check just before the expiry date, or 12 months after the original check, whichever is the later.
If the tenant is found to no longer have the right to be in the UK at the time of the follow-up check, the landlord must report this to the Home Office and can be fined if they fail to do so.
The Windrush Generation
Undocumented commonwealth citizens who have been permanently resident in the UK since before 1973 without long periods away in the last 30 years do have the right to be in the UK and rent a property. A person from this group arriving after 1st January 1973 might not automatically have the right to stay in the UK but may still have permission to stay and right to rent property.
The Home Office has a Landlord Checking Service that advises landlords about the status of prospective tenants who have difficulty evidencing their right to stay. Likewise, tenants who need help evidencing their right to stay should contact the Home Office Commonwealth Task Force for assistance.
Brexit
In light of Brexit and the end of the transition period on 31st December 2020, there have been no changes yet to how EEA and Swiss citizens prove their right to rent, and a simple ID check is still sufficient.
According to government guidance, landlords and letting agents won’t need to check whether new EEA and Swiss tenants arrived before or after the UK left the EU, or if they have Pre-Settled or Settled status under the EU Settlement Scheme. It also isn’t necessary to retrospectively check the status of EEA or Swiss nationals who entered into a tenancy agreement before 1st January 2021.
It is anticipated that in June 2021, new guidance will be published advising landlords on how they can perform right to rent checks for EEA and Swiss nationals, after 30th June 2021.
Further information can be found here:
www.gov.uk/government/publications/right-to-rentlandlords-code-of-practice
The full list of ID documents can be found here: www.gov.uk/government/publications/right-to-rent-document-checks-a-user-guide
