The Immigration Act of 2014 received Royal Assent on the 14th of May, 2014, containing within it, a key piece of legislation known as the Right to Rent scheme. On this page, I hope to explain most of what you need to know as a landlord or tenant.
Right to rent has been controversial and in the news a lot but we will look at the controversy surrounding this legislation at the bottom of this guide. First, let’s look at the practical side of it and at what landlords or an agent, dealing with a tenancy need to know about this scheme. This will be the main focus on this page.
The Right to Rent scheme requires all landlords or letting agents confirm that their tenants have the legal status to live in the UK. Please note, that at the time of writing, immigration checks on tenants are only required in England and do not apply in Scotland, Wales or Northern Ireland.
NB Nothing on this page should be construed as legal help. If you need more information I strongly suggest reading the government guide and help documents here or consulting with a legal expert.
Who Does This Apply To?
Landlords, letting out a property – or agents, working on their behalf – in England, need to perform a Right to Rent check on all adults under a tenancy scheme, looking to rent their properties.
Should the immigration status of any of those adults, looking to rent, be found to be under a time-limit then the landlord must do follow-up checks and should a tenant be found to not have the legal right to live in the UK, then they must be evicted (using the correct legal process).
When Do The Checks Take Place?
Immigration checks need to happen before a tenant signs a rental agreement (normally an Assured Shorthold Tenancy Agreement). These tend to be done at the same time that the landlord or estate agent is looking into other areas of the tenant’s situation – Employer references, previous landlord references, references for guarantors and credit checks.
At this point the prospective tenant will have paid a holding deposit to take the property off the rental market while these checks take place; a deposit that will normally be refunded if they fail the landlord’s criteria and put towards the security deposit should they pass.
What Does a Right to Rent Check Involve?
In order to carry out Right to Rent check the landlord or estate agent must:
- Check an original item of identification such as a UK passport, an EU/EEA passport or identity card, a permanent residence card, a travel document showing indefinite leave to remain, a visa or a Home Office immigration status document. A full list of documents can be found here.
- Check the documents for any other adults who are going to be living in the property, including grown-up children.
- Make copies of all documents and store them for at least one year after the tenancy has finished.
- Do follow-up checks during the tenancy in cases where the original documents were subject to time-limitations.
- And of course, any original documents taken from the tenants to be copied must be returned to their owners.
Failure to evidence checks can lead to fines of up to £3,000 per occupier.
What If The Documents Aren’t Available?
If the landlord or estate agent is unable to get the necessary documents from the tenant, for instance, if they do not have them available, then the Home Office can be requested to do the check, as long as they can be provided with the tenant’s Home Office reference number.
Right to rent has been closely associated in the news with the so-called, ‘Toxic Environment’, which Theresa May, as Home Secretary, sought to encourage in the UK, under the Cameron government. It has been in in the news, quite a bit.
A report by The Joint Council for the Welfare of Immigrants called “Passport Please – The impact of the Right to Rent checks on migrants and ethnic minorities in England” found 51% of landlords surveyed said that the scheme would make them less likely to consider letting to foreign nationals.
Right to rent is seen by many as encouraging racial discrimination in the UK, one of the primary reasons that it has not yet been in adopted in other countries in the Union, who are far from being on the same page as Westminster.
As a result of the Passport Please report, on March 1st, 2019 the High Court ruled that Right to Rent is incompatible with the European Convention on Human Rights. The government, however, disagrees with this finding. Caroline Nokes, Minister of State for Immigration, stated on the 5th of March, 2019:
“The law was and remains absolutely clear that discriminatory treatment on the part of anyone carrying out these checks is unlawful. And the Right to Rent legislation provides for a Code of Practice which sets out what landlords are expected to do.“
Get The Right Advice
I hope you have found this guide useful and recommend that tenants who need help (or landlords who need help) on this issue seek expert advice.