Introduction
The right to rent provisions are already in place in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton. The right to rent requirements rolls out for the rest of England from 1 February 2016.
We have decided to revisit our guidance and have somewhat simplified it here.
In basic terms, the right to rent Scheme makes it an offence for a landlord to allow a person who does not have a ‘right to rent’ to occupy premises in England. A person will have an ‘unlimited right to rent’ or a ‘time limited right to rent’ depending on their circumstances.
If a landlord does allow a person to occupy who doesn’t have a right to rent, they may be liable to a fine of up to £3,000 per adult in occupation. There is however a ‘statutory excuse’ available to avoid the penalty even if somebody without a right to rent was inadvertently allowed to occupy. The statutory excuse is achieved if correct documentation was obtained and copied before occupation took place. Hopefully this will become clear below.
Statutory Code of Practice
A statutory code of practice has been issued by Government under section 32 Immigration Act 2014 (in draft form at the time of writing). If there is a question as to whether a landlord or agent has complied with the legislation, the code must be considered.
Unlimited and time-limited right to rent
Unlimited right to rent
An adult occupier has an unlimited right to rent if they are:
a British citizen
EEA or Swiss national
people who have the right of abode in the UK, or
people who have been granted indefinite leave to remain or have no time limit on their stay in the UK.
The EEA and Swiss countries are:
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.
A landlord will not be liable for a civil penalty if they let accommodation for occupation by someone with an unlimited right to rent.
Time-limited right to rent
Those who do not fall into the above will have a time-limited right to rent if:
they have valid leave to enter or remain in the UK for a limited period of time; or
they are entitled to enter or remain in the UK as a result of an enforceable right under European Union law or any provision made under section 2(2) of the European Communities Act 1972.
A landlord will not be liable for a civil penalty if they let accommodation for occupation by someone with a time-limited right to rent, but to maintain an excuse against a penalty a landlord will need to conduct follow-up checks.
Which types of tenancy or licence does the scheme apply to?
The requirements under the legislation apply to most types of tenancy or licence where the occupation is:
for residential use, and
for one or more adult occupier (18 years or over), and
it is to be the occupiers only or main home, and
for the payment of rent, and
not excluded
The Scheme therefore applies to:
landlords (both businesses and individuals) who let accommodation with a lease or tenancy agreement;
occupiers who sub-let their accommodation, who will be landlords for the purposes of the Scheme, and
landlords or occupiers who take in lodgers to share their accommodation.
Only or main home
The question as to whether the adult occupier is to occupy as their only or main home is an important one. The requirements to check documents only applies to adults occupying as their only or main home. The easiest way for landlords and agents to establish this is by the use of a suitable application for accommodation such as that provided by the Guild.
In that application form (and in all good application forms) there should be a question asking whether the applicant intends to occupy as their only or main home. If the applicant answers “not”, details should be taken as to why.
Even where it is not to be the applicants only or main home, it is submitted it will be just as easy to obtain the appropriate documentation discussed below regardless. That way a statutory excuse will be available even if the applicants circumstances change.
Where the tenant is temporarily working in an area and has another home, the statutory guidance says:
When an occupier lives away from the home for extended periods due to employment, the address to which they return when they are not working is usually taken as their only or main home.
Holiday accommodation
The Scheme only applies where an adult is to occupy as their only or main home which wouldn’t normally be the case with a holiday let. It will therefore need to be determined by the facts of the individual case as to the true nature of the letting.
The statutory code suggests:
If the letting is for a short, time-limited period, and it is clear that they intend to use the premises for leisure related purposes and will not remain in the property after this period, then the landlord may conclude that the property is to be used as holiday accommodation and there is no need to conduct right to rent checks.
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As a guide, the Home Office would consider that bookings of three months or more may indicate that a person is using the accommodation for a purpose other than leisure purposes, and could be intending to use the accommodation as their only or main home.
A landlord who simply checks and copies all the acceptable documentation as detailed later will avoid the question as to whether a property is intended to be the main home.
Excluded agreements
There are very few exclusions that will affect our readers but they include:
Accommodation involving local authorities
Care homes, hospitals and hospices and continuing healthcare provision
Hostels and refuges
Agreements to which the Mobile Homes Act 1983 applies
Student halls of residence
Long leases of 7 years or more
Letting and managing agents
A letting or managing agent may conduct the right to rent checks on behalf of the landlord but only if an agreement exists between the landlord and agent in writing. Where there is no written agreement, the landlord will be liable for the checks and any penalty if one is imposed.
How to establish a statutory excuse
There are three steps a landlord (or authorised agent) must take to avoid a penalty under the scheme:
Conduct initial right to rent checks before authorising an adult to occupy rented accommodation;
Conduct follow-up checks at the appropriate date if initial checks indicate that an occupier has a time-limited right to rent, and;
Make a report to the Home Office if follow-up checks indicate that an occupier no longer has the right to rent.
In the vast majority of cases landlords and agents will only need to perform step 1 – initial right to rent checks. Steps 2 and 3 are only required if a prospective tenant is found to have a time-limited right to rent.
Step 1 – initial right to rent checks
There are four parts to conducting initial right to rent checks:
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 adult occupiers;
Check the documents in the presence of the holder or via live video link, and
Make copies of the documents and retain them with a record of the date on which the check is made.
Checks may be undertaken at any point before the residential tenancy agreement is granted. However, where a person is found to have a time-limited right to remain in the UK, checks should be undertaken not more than 28 days before the residential tenancy agreement comes into effect 1.
For example if a student is checked in February but the agreement is not going to commence until September, where the student is found to have an unlimited right to rent, no further checks are required. If however, the student is found to have a time-limited right to rent, further checks will need to be done not more than 28 days before the tenancy starts in September and also at a time when any follow up checks are required (see later).
Establish the adults who will live in the property
Only adults aged 18 years or over require their documents to be checked. However, a suitable application for accommodation form should be used to ask details of all proposed adult occupiers. This shouldn’t just be joint tenants but any adult who intends to occupy however that may be. The application form should also ask what children intend to occupy as this will determine that the size of the property suits the situation of the tenant.
The statutory guidance says:
The Scheme applies to all adult occupiers who will be authorised to live at the property, whether or not they are named on a residential tenancy agreement. Landlords should make reasonable enquiries of the prospective tenant about the people who will live at the property.
The enquiries that are reasonable will depend on the specific situation involved. In some circumstances, limited enquiries may be required, for instance if the property being let is a room within the landlord’s own home, or a studio apartment, and the tenant says that they alone will be living in the property, then no further enquiries may be required.
In other cases, more detailed questions may need to be asked to ensure that only the adults named by them will share the property. Factors the landlord will want to consider will include whether the reported number of occupiers is proportionate to the size and type of property. Landlords are advised to keep a record of enquiries made and responses obtained.
There is no easier way than a quality application form to satisfy the record keeping suggestion contained in the statutory guidance.
Obtain original versions of one or more of the acceptable documents
Landlords must check the validity of the documents in the presence of the holder. This can be a physical presence in person or via a live video link, although in either case the landlord must be in possession of the original documents.
Landlords must check:
Photographs and dates of birth are consistent across documents and with the persons appearance.
Expiry dates for leave have not passed (time-limited only).
The documents appear genuine and have not been tampered with.
If names don’t match across documents, the reasons for this should be recorded along with supporting evidence (for example in the case of marriage, a marriage certificate should be copied and retained as evidence).
The Guild can offer it’s members a bolt on right to rent checking service in addition to it’s tenant referencing service (coming soon). However, this only offers a second opinion and piece of mind. The statutory guidance is absolutely clear that the initial checks must be done “in person” or via “live video link” with original documentation (not copies) in the landlords possession.
There are number of companies who claim to be able to conduct full right to rent checks from uploaded copies of documentation. This is not true and those services can only offer a second opinion and are not sufficient on their own to comply with the statutory guidance.
Acceptable documents
By far the easiest document to try and obtain is a passport. If a passport is obtained and copied, that will be the only necessary document.
List A – establish an unlimited right to rent
Group 1 – If a prospective tenant can produce one document from this group then a continuous statutory excuse will be established.
A passport (current or expired) showing that the holder is a British citizen, or a citizen of the UK.
A passport or national identity card (current or expired) showing that the holder is a national of the EEA or Switzerland.
A registration certificate or document (current or expired) certifying or indicating permanent residence issued by the Home Office, to a national of the EEA or Switzerland.
A ‘permanent’ residence, ‘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.
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.
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.
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.
A certificate of registration or naturalisation as a British citizen.
Group 2 – If a prospective tenant can produce any two documents from this group then a continuous statutory excuse will be established
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.
A current full or provisional photocard UK driving licence.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Disclosure and Barring Service Certificate (criminal record check) issued within the 3 months prior to the check.
List B to establish a time-limited statutory excuse
If a prospective tenant can produce one document from this group then a time-limited statutory excuse will be established. A repeat check will be required within the timescales outlined below.
A current passport or other ‘travel document’ endorsed to show that the holder is allowed to stay in the UK for a time-limited period.
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.
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.
A current immigration status document issued by the Home Office to the holder with a valid endorsement indicating that the holder may stay in the UK for a time-limited period.
Right to Rent checks from the Home Office Landlords Checking Service
When an individual cannot provide any of the documents from List A or List B, but claims to have an ongoing immigration application or appeal with the Home Office; or that their documents are with the Home Office; or they have been given permission to rent by the Home Office, then the landlord must request verification of right to rent from the Home Office’s Landlords Checking Service.
The Landlords Checking Service will respond with a clear “yes” or “no” within 2 working days. The information provided will clearly set out whether a repeat check will be required, and if so, when.
If the Landlords Checking Service has not considered the request within two working days an automated response will be sent to the landlord informing them that they can let their property to the prospective tenant. This automated response must be retained in order for the landlord to avoid a penalty.
Make copies of the documents and retain them
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.
Where the document is being stored electronically, it can be saved as PDF, JPEG or similar and should be securely stored.
Because of the possible long time a document could need to be stored, a long standing well established service should be used and either stored off site or backed up off site regularly.
Suitable storage solutions that are available for free might include Evernote, Dropbox or Google Drive. There are many apps available that can scan documents quickly and can upload to these and other services very easily. There shouldn’t be any need to pay for this service if you have a small number of uploads to do every year and don’t require anything else other than small storage.
Any electronic copy should be setup to record the date of copying to show it was done before occupation.
If follow up checks are required, a reminder should be made of the date.
A reminder should be made upon the tenancy ending and tenant vacating to destroy the documents one year after. The legislation specifically says that there is no right to retain the documents beyond 12 months from when the tenancy has ended. But, the documents must be retained for at least 12 months after the tenancy has ended.
Evernote is particularly useful for this type of situation because once a document has been uploaded, reminders can be attached to the particular “note” as can other annotations or notes you may wish to make.
If a photocopy of a document is being taken, the dates can be recorded somewhere on the copy – possibly on the reverse of the page.
In respect of what parts of the documents should be copied, the statutory guidance says:
Passports: any page with the document expiry date, nationality, date of birth, signature, leave expiry date, biometric details and photograph, and any page containing information indicating the holder has an entitlement to enter or remain in the UK.
All other documents: the document in full, including both sides of a Biometric Residence Permit.
In order to be allowed to store documents (whether electronically or by hardcopy), a landlord or agent must be registered with the Information Commissioners Office under the Data Protection Act 1998.
Avoiding discrimination
One of the most important aspects of the legislation is the requirement to check the documents described above on ALL prospective tenants. The Code of Practice for Landlords Avoiding unlawful discrimination when conducting ‘right to rent’ checks in the private rented residential sector provides:
Landlords [and agents] should ensure that they comply with the Scheme. However, they must also ensure that they act in accordance with their obligations under equality legislation. Among other things, it is unlawful to discriminate in letting practices on the basis of race, which includes colour, nationality and national or ethnic origins. A landlord or letting agent who refuses to let to someone – or who only carries out document checks on persons – who they believe are not British citizens, for example, on the basis of their colour, or ethnic or national origins, would be directly discriminating on grounds of race. This would be unlawful. The person who is discriminated against could make a claim to the courts and the landlord or agent could then face financial penalties. They could also experience reputational damage, and could lose business as a consequence.
And continues:
Landlords [and agents] are advised to conduct immigration status checks in a consistent and fair manner in relation to all prospective tenants to protect themselves from claims of discrimination and to keep records of checks made.
As a matter of good practice, landlords and their agents should apply the right to rent checks in a fair, justifiable and consistent manner, regardless as to whether they believe the prospective tenant to be British, settled or a person with limited permission to be here. Landlords should ensure that no prospective tenants are discouraged or excluded, either directly or indirectly, because of their personal appearance or accent or anything else associated with a person’s race. They should not make and act upon assumptions about a person’s immigration status on the basis of their colour, nationality, ethnic or national origins, accent, ability to speak English or the length of time they have been resident in the UK.
The best way for landlords to ensure they do not discriminate is to treat all prospective tenants fairly and in the same way, making sure their criteria and practices in this regard are appropriate and necessary.
Step 2 – conduct follow-up checks at the appropriate date
Where a document has been provided under list B, the landlord has established a time-limited statutory excuse for the “eligibility period”.
The eligibility period will be the longest of the following:
one year, beginning with the date on which the checks were last made;
until the period of the person’s leave to be in the UK expires; or,
until the expiry of the validity period of the document which evidences their right to be in the UK.
In order to maintain the statutory excuse, the landlord must undertake repeat checks before the eligibility period expires. The checks can be done much sooner if for example the tenant makes contact to say their right to remain in the UK has been extended.
Examples:
A non EEA (nor Swiss) student has leave to remain in the UK for 2 years. The landlord copies the appropriate documentation from list B and records the 2 year date as a reminder. The landlord only needs check the documentation again close to expiry of the 2 year date. The landlord can check sooner if for example the tenant contacts the landlord after 18 months to say their leave has been further extended for an additional 3 years.
A non EEA (nor Swiss) student has leave to remain in the UK for 6 months and the landlord is satisfied with the documents provided from list B are genuine. The landlord does not have to make checks again at the six month point but must check again close to expiry of one year from when the first check was done.
The landlord should ask the occupier for proof of their continued right to rent. If the occupier produces the requisite document or documents from List A and the landlord checks and obtains a copy of this, they will establish a continuous statutory excuse. If the occupier produces one of the documents 1–4 in List B and the landlord obtains and retains copies of these documents, they will establish a new time-limited statutory excuse for either 12 months, or until expiry of the person’s leave to remain in the UK, or until expiry of the validity of the document which evidences their right to be in the UK, whichever is later. In such cases, the landlord will need to conduct further follow-up checks before this new excuse expires.
Make a report to the Home Office
If the follow-up checks indicate that an occupier no longer has the right to rent, the landlord should make a report to the Home Office via www.Gov.uk/righttorentchecks. The landlord must make the report as soon as reasonably practicable after discovering that the occupier no longer has a right to rent, and before their existing time-limited statutory excuse expires (the eligibility period).
This report must contain all of the following:
The full name, date of birth and nationality of the occupier believed to have no right to rent;
The address of the premises they are occupying;
The name and contact address of the landlord;
Where relevant, the name and contact address of the agent; and
The date on which the occupier first took up occupation.
Making a report in the specified way will generate a unique reference number. Landlords must ensure they keep a copy of that number as evidence of their continued statutory excuse.
Penalty
Where a landlord allows a person who does not have a right to rent to occupy premises or, a landlord fails to report to the Home Office where a person ceases to have a right to rent within the eligibility period, the landlord faces a civil penalty of up to £3,000 per person who has no right to rent.
The penalty is calculated in accordance with the statutory guidance which should be consulted for detailed information.
Where a penalty is imposed, a landlord may object within 28 days on the following grounds:
they are not liable to pay the penalty (for example because they are not the landlord of the disqualified person), or
they have a statutory excuse (this means that they undertook the prescribed document checks and made any necessary reports), or
the level of penalty is too high (this means that the Home Office has miscalculated the amount of the penalty by reference to the wrong criteria).
There is then a further appeal to the Court within 28 days on the same grounds.
Article 8 The Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order 2014 ↩