What is a
Right to Rent Check?
A Bit of Background
The Immigration Act of 2014 was introduced by Theresa May, the then Home Secretary, in 2013, receiving Royal Assent in May 2014.
Designed to limit, or "otherwise make provision about access to services, facilities and employment by reference to immigration status” - including accommodation - It was and continues to be, controversial.
At first, the bill looked to be going through smoothly, with a general consensus across party lines and little public interest.
Then, stakes were raised with the hasty introduction of a ‘citizen stripping’ clause, which was introduced during the final debate; with the Gov adding to the Act, new powers for the Home Office to strip naturalised citizens of their citizenship status.
This clause raised the spectre of statelessness and created, some argued, a second-tier - or class - of citizenship.
In the ensuing political tussle between the Commons and the Lords and the public debate that followed, the term, ‘hostile environment’ became a household phrase, promoted by supporters of the bill, having first been uttered by Theresa May, herself.
Branding their act as ‘hostile’ almost certainly didn’t do the Tories any favours in the 2017 election. And the Windrush Scandal of 2018, resulting from the new legal environment, was a deeply shameful episode in our history, the fallout from which, after becoming Prime Minister in 2016, Theresa May, had few political means to shield herself.
With the Act passed and in-force, there was introduced a raft of rules and regulations, affecting the rights and responsibilities of people in all different walks of life; with employers and suppliers of all kinds of services, public or otherwise, becoming legally mandated to perform checks on the immigration status of those under their care.
With regard to accommodation, landlords and letting agents were no exception. And this is what we know today, as Right to Rent.
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If you need more information I strongly suggest you read the government’s guidelines and if in doubt - or if you think you already have a problem - you will need to consult with an expert.
As you will see, later in this article, Right to Rent is likely to change over the next year and you need to make sure you remain legally compliant.
What is Right to Rent?
In a nutshell, the Right to Rent Scheme is a legal requirement, that landlords and/or letting agents confirm that the tenants they are letting to, have the necessary immigration status, to legally reside in England, before they are allowed to rent accommodation, as a tenant.
Yes, in England. At the time of writing, Right to Rent has not been adopted in Scotland, Wales or in Northern Ireland - and I’ll venture that it won’t be (although I don’t have a crystal ball).
In April 2019, the High Court described the Right to Rent scheme as being incompatible with human rights law, with Mr Justice Spencer describing the Scheme as “not merely providing [landlords] the occasion or opportunity to discriminate, but causes them to do so where otherwise they would not”.
To add further colour, after the ruling, MP Tom Brake said that, “making landlords part of the border force policing apparatus encourages racial discrimination and doesn’t even work’.
The government disagrees with this, with Caroline Nokes, the then Minister of State for Immigration, in March 2019, pointing out that “Right to Rent legislation provides for a Code of Practice which sets out what landlords are expected to do” and “that discriminatory treatment on the part of anyone carrying out these checks is unlawful”.
In other words, in the view of the Gov, Right to Rent Checks conducted prior to a tenancy agreement, should not be seen as contributing to increased discrimination because any such discrimination would be illegal; impinging of the right of the tenant, looking to rent the accommodation.
Nonetheless, 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 that 51% of landlords surveyed said that the scheme would make them less likely to consider letting to foreign nationals.
As such, I think it is fair to claim the Scheme is already on shaky ground, with an uncertain future, where it applies and, as such, Right to Rent is unlikely to be more widely adopted by other territories in the UK.
But for now, it is still very much in force, in England and landlords must abide by the rules, or face serious consequences.
Who Does it Apply To and Who Does it Affect?
All residential landlords need to perform a Right to Rent Check on all adults, going into a tenancy scheme.
This doesn’t mean that the landlord has to perform the check themselves but a check needs to be done. It could be and often is, for instance, carried out by a letting agent, on their behalf.
Remember, that if you are a family member of the tenant or if you are subletting a room (more on this later) then you are still considered a landlord and the rules still apply.
And if the Tenant Isn’t a UK Citizen?
If the tenant is not found to be a UK citizen, then it becomes the responsibility of the landlord (or a nominated agent) to check the existing timeframe of their immigration status and do follow-up checks to monitor the situation-over-time, should there be some time limit attached.
And if the tenant is found to not have the right to remain in England, then the landlord must evict them, following the correct legal process to do so.
When do These Checks Take Place?
We’ve looked at follow-up checks on existing tenants, who’s immigration status is time-sensitive but not at what needs doing before the start of any new tenancy.
Immigration checks need to happen before a tenant signs a rental agreement (normally an Assured Shorthold Tenancy Agreement); tending to be done at the same time as the landlord or agent is looking into other areas of the tenant’s situation - employer references, previous landlord references, guarantor references and credit checks.
At this point in the process, the prospective tenant will have paid a holding deposit, to take the property off the rental market, while checks take place; a deposit that would normally be refunded if they fail the landlord’s criteria or put towards the security deposit, should they pass.
What do They Involve?
In order to carry out Right to Rent Check the landlord or estate agent must:
- Check an original item of identification. These include 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 your checks can lead to fines of up to £3,000 per occupier! And renting to someone who is not allowed to stay in England can - according to the Home Office - result in an unlimited fine or time in prison.
And 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.
A tenant, subletting by renting a property or a room - that they, in turn, are renting themselves - is known as a mesne tenant and they have much-the-same responsibilities to their tenants, as do regular landlords.
This means that it is their responsibility to collect rent, arrange repairs to the property and conduct Right to Rent Checks and not the responsibility of the head landlord; the name given to the primary landlord, in a subletting situation.
This is all, of course, assuming that the head landlord has given explicit permission for the sublet.
It is too off-subject to go into illegal subletting - which means, a tenant charging some third-party rent but not disclosing that fact - in this article.
But if you are a landlord, who suspects something like this is going on, in one of your properties, you need to seek legal advice and act now but rest-assured that subletting, where no permission is granted is, generally speaking, a legitimate grounds for eviction.
For the moment, Right to Rent, in England, is very much in force, requiring landlords or agents, working on their behalf, to check the immigration status (and keep copies of supporting documents), before letting accommodation to prospective tenants.
Since the ruling by the High Court, the Home Office has said that they will review Right to Rent but that they will also appeal the High Court's decision.
This means that landlords and agents need to keep an eye on what is expected of them, as change is, potentially, imminent.
And then there is the elephant in the room - Brexit - which still has the potential for creating legal uncertainty around the immigration status of EU citizens and some very muddy water for landlords trying to tell the difference between long-term UK residents, who have a right to be in the UK and EU citizens who do not.
The Residential Landlords Association have been very active in trying to get this situation resolved but at the time of writing, there are still a lot of questions surrounding the UK’s exit from the EU and what this means for EU nationals and their right to rent accommodation in England and the UK.
The only thing that we can suggest at this stage is that landlords, who conduct their own Right to Rent Checks, keep a very close eye on new developments with this issue.