RIGHT TO RENT - A LANDLORD'S GUIDE
The Immigration Act 2014 introduced the concept of 'right to rent' to the private rented sector. Originally introduced in the West Midlands, right to rent requires landlords and agents check the immigration status of their prospective occupiers at the outset of the tenancy. Failure to do so could result in fines for landlords and letting agents as of February 1st 2016 across England. From December 1st 2016, the government has introduced additional penalties and offences relating to right to rent. Landlords now face potential imprisonment for failure to check the occupier's right to rent status, so it is even more important that they do it correctly every time. This guide will help prepare landlords for the current requirements of this scheme.
Is this for assured shorthold tenancies only?
No, this applies to all residential tenancies with some limited exemptions for social housing, halls of residence, etc. Almost all private sector landlords will be caught when they have anything from ASTs to lodger agreements.
What types of occupancy are exempt?
Holiday lets, lettings where it is not the tenant's main home, tenancies of more than 7 years where there is no break clause for the landlord, letting to students where the education institution has placed the tenant in the property, people whose accommodation is provided by their employer and finally, mobile homes.
Licences and lodger agreements are included.
What are the requirements?
Landlords must not authorise an adult to occupy a property as their only or main home unless they can establish the adult has a right to reside in the UK. This means landlords are now required to check the identification of everyone who is over 18 and expected to occupy the property.
As of December 1st 2016, a new offence has been created that landlords and agents need to be careful of. Landlords and letting agents who become aware, or should be aware, that their occupiers have no 'right to rent' are guilty of the offence of letting to a disqualified person. This offence is triggered when the landlord agent receives a notice from the Home Office informing them that their occupier is disqualified. This obviously captures all landlords, even those that did their right to rent checks correctly. Thanks to lobbying from the RLA policy team however, landlords will have a statutory defence if they are taking reasonable steps to remove the occupier from the property and have performed the right to rent checks on time.
Is it for new occupation agreements only?
Yes, and no.
There are no requirements to check the right to rent status of people who occupied the property before February 1st 2016. However, if the landlord receives a notice from the Home Office informing them that the occupier, or occupiers, are disqualified from letting a property, they must take reasonable steps to evict them or face prosecution. This applies to all tenancies, regardless of start date. As such, it may be best practice to perform right to rent checks on older tenancies when possible so the landlord or agent can proactively evict these disqualified occupiers.
Who is responsible for these checks?
The landlord would normally be responsible for these checks but they can pass on the obligation to their agent as part of a written agreement. This means that the agreement between the landlord and the agent must specifically refer to who is responsible for performing right to rent checks. If the agreement is silent on this, then the landlord will be responsible. Landlords and agents may wish to reconsider their current agreements as a result.
Where a tenant sublets the property, they will usually be responsible for checking the right to rent status of their subtenants. However, the landlord can perform the right to rent checks if it is expressly agreed with the tenant who is subletting that they will do so. Landlords will not be liable for unauthorised sub-letting.
What is 'right to rent?'
Right to rent means simply that the occupier has a right to rent a property in the UK. Anyone without it is disqualified from renting. This can be broken down into two different groups, permanent and time limited rights to rent. Each has different requirements.
Who has a permanent right to rent?
- British citizens; European Economic Area nationals (Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK.); and Swiss nationals,
- People who have a right of abode in the UK; who have been granted indefinite leave to remain; or have no time limit on their stay in the UK.
Who has a time limited right to rent?
Those who are not British citizens, EEA or Swiss nationals who have
- valid leave to enter or remain in the UK for a limited period of time
- are entitled to enter or remain in the UK as a result of Acts of Parliament, European Union Treaties and Immigration Regulations (e.g. family members of EEA nationals). However, some family members of EEA nationals may be able to demonstrate an unlimited right to rent.
My tenant has 3 months left on their right to rent, how long should my tenancy be?
Right to rent checks last for a minimum of 12 months, regardless of how long the tenant's actual right to reside has left. Landlords can therefore safely give 12 month tenancies without issue provided the checks have been made at the outset.
Landlords should be wary of discrimination. For example, if a landlord normally offers 6 or 12 month tenancies, it would be discriminating against a prospective tenant if they only offered a 3 month tenancy to someone with only 3 months left on their right to reside.
How often should I check their right to rent?
People with a permanent right to rent need only be checked once before the tenancy commences.
For those with a time limited right to rent, landlords need to keep a note of when the time limit expires and check before the occupier's right to rent expires. Alternatively, they should check before the 12 month anniversary of the previous right to rent check (if their time limited right to rent is less than 12 months long). This follow up check should then hopefully show the occupier has a right to remain in the property. If the occupier fails this check, landlords need to be taking action to remove them within a reasonable time.
The requirements are for adults. What about children?
Children do not need to be checked but landlords will need to prove they are under 18 unless it is obvious. It would be wise for landlords to keep their birthdates on record so they know when they become adults if they have a time limited right to rent. Particularly where an adult occupier's right to rent is dependent on this child.
If an occupier turns 18 during the tenancy, they need only be checked if a further time limited right to rent check is required on the property. So for example, a child of 17 lives with their parents. The parents have a time limited right to rent expiring in 3 years. The child should be checked when the landlord does a follow up check before the 3 years expires.
How do I check the occupiers?
The process for carrying out initial right to rent checks is as follows:
- 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 for all adult occupiers.
- Check the documents in the presence of the document holder.
- Make and retain copies with the date on which the checks were made.
- Keep copies of the documents for 12 months after the end of the tenancy.
How many identification documents should I get?
There are over 400 different forms of ID for the EU alone and not all of them are equally useful. Many landlords will take the view that the easiest option is to simply require a passport of any prospective occupier. There is nothing inherently wrong or illegal about this provided the landlord is not making the passport requirement country specific. So for example, a requirement for British passports only would not be suitable but a requirement for any type of valid passport would be fine.
Landlords should be aware however, that there are some 12 million people in the UK with no passport. To have the broadest possible options, landlords can accept a wide range of different documents from tenants. These break down into three different groups.
List A - British, EEA, Swiss Nationals or those with an indefinite right to be in the UK
|Group 1 - Any one of these documents will prove indefinite right to rent|
|1||A passport (current or expired) showing that the holder is a British citizen or a citizen of the UK and Colonies having the 'right of abode' in the UK.|
|2||A passport or national identity card (current or expired) showing that the holder is a national of the European Economic Area or Switzerland.|
|3||A registration certificate or document (current or expired) certifying or indicating permanent residence issued by the Home Office, to a national of the European Economic Area country or Switzerland.|
|4||A 'permanent' residence card, 'indefinite leave to remain', 'indefinite leave to enter' or 'no time limit' card issued by the Home Office (current or expired), to a non-EEA national who is a family member of an EEA or Swiss national.|
|5||A biometric 'residence permit' card (current or expired) issued by the Home Office to the holder indicating that the person named has 'indefinite' leave in the UK, or has 'no time limit' on their stay in the UK.|
|6||A passport or other 'travel document' (current or expired) endorsed to show that the holder is either 'exempt from immigration control', has 'indefinite' leave in the UK, has the 'right of abode' in the UK, or has 'no time limit' on their stay in the UK.|
|7||An immigration status document (current or expired) containing a photograph issued by the Home Office to the holder with an endorsement indicating that the named person has 'indefinite' leave in the UK or has 'no time limit' on their stay in the UK the UK or has no time limit on their stay in the UK.|
|8||A certificate of registration or naturalisation as a British citizen.|
|Group 2 - Any two of these documents will prove indefinite right to rent|
|1||A full birth or adoption certificate issued in the UK, the Channel Islands, the Isle of Man or Ireland, which includes the name(s) of at least one of the holder's parents or adoptive parents.|
|2||Evidence (identity card, document of confirmation issued by one of HM forces, confirmation letter issued by the Secretary of State) of the holder's previous or current service in any of HM's UK armed forces.|
|3||A letter from HM Prison Service, the Scottish Prison Service or the Northern Ireland Prison Service confirming the holder's name, date of birth and that they have been released from custody of that service in the 6 months prior to the check.|
|4||A letter issued within the 3 months prior to the check from an officer of the National Offender Management Service in England and Wales confirming that the holder is the subject of an order requiring supervision by that officer; from an officer of a local authority in Scotland confirming that the holder is the subject of a probation order requiring supervision by that officer; or, from an officer of the Probation Board for Northern Ireland confirming that the holder is the subject of an order requiring supervision by that officer.|
|5||A current full or provisional photocard UK driving licence.|
|6||Benefits paperwork issued by HMRC, a UK Local Authority or Job Centre Plus, on behalf of the Department for Work and Pensions or the Northern Ireland Department for Social Development, issued within the 3 months prior to the check.|
|7||A letter issued within the 3 months prior to the check signed by a representative of a public authority, voluntary organisation or charity which operates a scheme to assist individuals to secure accommodation in the private rented sector in order to prevent or resolve homelessness. This letter must confirm the holder's name, and the address details of the prospective tenancy which they are assisting with obtaining for the holder.|
|8||A letter issued within the 3 months prior to the check by a UK government department or Local Authority and signed by a named official (giving their name and professional address), confirming the holder's name and that they have previously been known to the department or local authority.|
|9||A letter issued within the 3 months prior to the check confirming the holder's name signed by the person who employs the holder (giving their name and business address) confirming the holder's status as employee and employee reference number or their National Insurance number.|
|10||A letter issued within the 3 months prior to the check from a British passport holder who works in (or is retired from) an acceptable profession as specified in the list of acceptable professional persons at Annex A. The letter should confirm the holder's name, and confirm that the acceptable professional person has known the holder for at least three months. This letter should be signed by the acceptable professional person giving their name, address, passport number, profession and place of work (or former place of work if retired), how long they have known the holder and in what capacity.|
|11||A letter from a UK police force confirming that the holder is a victim of crime and has reported a passport or Home Office biometric immigration document stolen, stating the crime reference number, issued within the 3 months prior to the check.|
|12||A letter issued within the 3 months prior to the check from a UK further or higher education institution confirming the holder's acceptance on a current course of studies. This letter should include the name of the educational institution, as well as the name and duration of the course.|
|13||Disclosure and Barring Service Certificate (criminal record check) issued within the 3 months prior to the check.|
List B - Time limited Right to Rent
List B - any one of these documents will be sufficient to establish a time limited right to rent.
Documents where a time-limited statutory excuse is established
|1||A valid passport or other travel document endorsed to show that the holder is allowed to stay in the UK for a time-limited period.|
|2||A current biometric 'residence permit' card issued by the Home Office to the holder, which indicates that the named person is permitted to stay in the UK for a time limited period.|
|3||A current residence card (including an accession residence card or a derivative residence card) issued by the Home Office to a non-EEA national who is either a family member of an EEA or Swiss national or has a derivative right of residence.|
|4||A current immigration status document issued by the Home Office to the holder with a valid endorsement indicating that the named holder may stay in the UK for a time-limited period.|
How am I meant to know what the documents of all the countries look like?
The government has provided some sample documents and a guide on checking for fraudulent documents but the key thing to remember is that they do not expect you to be extensively familiar with the hundreds of different forms of ID available across the world. Landlords are simply expected to establish to the best of their abilities that the document is not fraudulent. So, differing dates, obvious tampering, expired ID, etc, Would be a clear cause for concern. If the original document looks to be genuine after inspection and the landlord/agent retains copies of it, then they will have a statutory excuse which protects them against prosecution later.
Finally, for EEA nationals the Prado website is extremely helpful for identifying valid documents. It also has some limited help if your tenant is from outside the EEA.
What should I do if an occupier doesn't have any ID?
If the prospective occupier does not have any ID it is possible to have the Home Office perform a check for you. However, this is only available where the adult in question is making an asylum application. This should be responded to within 2 working days with a clear 'Yes' or 'No.'
Should the answer from the Home Office be 'No' or the tenant has no ID then the tenant has no right to reside in the property. At this point the landlord should refuse to grant a tenancy.
What should I do if my tenant's right to rent has expired?
If a landlord does discover the occupier has lost or is about to lose their right to rent status, they should complete the form to the Home Office as soon as possible.
This report needs to contain the following:
- The full name of the occupier believed to have no Right to Rent
- The address of the premises they are occupying
- Name and contact address of the landlord
- Name and address of the agent (where relevant)
- The date that the occupier first took up occupation
In addition to this, landlords should be taking reasonable steps to remove the occupier from the property, if subsequent checks prove they have lost their right to rent status. 'Reasonable steps' can vary depending on the circumstances and the government has produced some guidance on this topic.
If the landlord or agent is informed by the Home Office that the occupier has no right to rent, then the landlord must take steps to evict as soon as reasonably possible.
What are the reasonable steps a landlord needs to take to evict a disqualified occupier?
The Home Office has produced guidance on this. In short, what the landlord can or should do changes depending on the circumstances. Generally, all of them require swift action from the landlord or agent though.
If the occupier will leave the property voluntarily then this is the preferred method and should be completed within 28 days of the Home Office letter if possible. It is very likely in these cases that the landlord will need a deed of assignment, as most properties will feature a mix of tenants with different right to rent statuses.
If the tenants or occupiers refuse to vacate, then the landlord or agent will have to take steps to evict. The steps will vary based on the circumstances:
- If the landlord receives a notice from the Home Office, and all the occupiers are disqualified from renting in the UK, then the notice from the Home Office strips all occupiers of their right to protection from eviction. The landlord may serve a notice of eviction and end of tenancy. This gives the tenants 28 days' notice to leave the property. At the end of this time, the landlord may peaceably retake the property without applying to court, or they may instruct a High Court Enforcement Officer to act for them instead.
- If the tenants are a mixture of different right to rent statuses and the fixed term is far from finishing, or the landlord is uncertain of who occupies the property, then the landlord may serve a section 8 notice. This should cite Ground 7B as the reason they are seeking possession, and it should give the tenants 14 days' notice. The courts will need to see the notice from the Home Office to be satisfied that the occupier has no right to rent. If the courts find all tenants are disqualified from renting, then possession will be granted. However, if there is a mixture of right to rent statuses in the property, then the courts will assign the disqualified tenants interest in the tenancy over to the remaining, qualified, tenants.
- If the tenancy is nearing the end of the fixed term or is running on as a periodic tenancy, then landlords may serve a section 21 notice. This should expire no later than 3 months from the point where the landlord or agent discovered the occupier has no right to rent status. In practice, this will also be the standard notice where the landlord has discovered that the occupier has no right to rent as part of their follow up checks, and can be done proactively to avoid any possibility of prosecution.
Provided landlords are continuing down one these paths, the Home Office guidance states that the court will pay attention to any delays for court hearings, etc.
What kind of penalties are there?
If a landlord is charged with the civil offence of renting to someone without right to rent, then the old penalty still applies. This runs up to a maximum of £3000 per occupier without a right to rent in the UK.
If a landlord is charged with the new offence, allowing someone to let the property while being disqualified from renting in the UK, then they can be tried in the magistrate or crown court. This carries an unlimited fine or potentially up to 5 years in prison.
The RLA is led to believe that the new offence will be used for repeat offenders, while the old penalty will continue to be applied in most cases. Nevertheless, landlords and agents need to be very careful as they could easily be tried under either offence due to their similarity.
Can I avoid or appeal a penalty notice?
Landlords are entitled to appeal against penalty notices but they will usually avoid receiving a civil penalty if they:
- Carry out the initial checks before letting property to the tenant(s) and any other adult(s) who'll be living there and keep evidence that they've done so
- Do a follow-up check if the initial check shows that someone has a limited right to rent and contact the Home Office if the second check shows that someone no longer has a right to rent.
This creates a statutory excuse and prevents prosecution.
Landlords can also appeal on the grounds that they are not responsible. This would be when the agent or tenant has taken charge of the right to rent checks.
For the criminal prosecution, in addition to performing the relevant checks on time, the landlord maintains their statutory excuse through following the correct eviction procedure laid out in the previous section.
Why do I have to check everyone?
Amongst other things, the Equality Act 2010 prohibits discrimination on grounds of race (this includes colour, nationality and ethnic or national origins) so landlords must not discriminate against prospective occupiers:
- In their treatment of the person seeking the accommodation;
- By refusing to offer the accommodation; or
- In the terms by which the accommodation is offered
As a result, landlords need to check everyone or risk civil penalties for discrimination later on.
How do I store my copies of the occupier's documents?
Landlords must make a clear copy of each document in a format which cannot later be altered, and retain the copy securely: electronically or in hardcopy. Landlords must make a record of the date on which the check was made, and retain the copies securely for at least one year after the tenancy agreement comes to an end.
Photographs ARE acceptable, according to the Home Office, provided they are clear enough to make out the details of the identification provided and they have not been tampered with.
Landlords should be mindful of existing obligations to protect personal data under the Data Protection Act 1998 and all copies of documents, whether paper or electronic, should be kept securely and for no longer than necessary. The Scheme does not entitle landlords to retain the original documents presented by prospective occupier(s).
The government has published a code of practice for further information.
The RLA has also produced a right to rent identification form to assist with record keeping.