Changes to ‘right to rent’ checks

Posted Monday 10th October 2022

Under the Immigration Act 2014, all landlords in England have an obligation to carry out a ‘right to rent’ check prior to leasing their property to a prospective adult tenant. The aim of this obligation is to restrict people without lawful immigration status from accessing the private rental sector. Put simply, the prospective tenant must show a form of identification in person to the landlord or letting agent to prove they have a right to be in the UK.

Any landlord who rents to an individual who does not have the right to be in the UK could face a civil penalty of up to £3,000 per tenant and may be committing a criminal offence under section 33A of the Immigration Act 2014 if they did so knowingly. However, conducting the necessary check will establish a ‘statutory excuse’ and the landlord will not be found liable in either regard.

In light of Covid pandemic, adjustments to the ‘right to rent’ checks were introduced on 30 March 2020 to enable checks to be undertaken electronically. These temporary measures ended on 30 September 2022. Therefore, from 1 October 2022, landlords and agents are required to return to in-person checks or be signed up to one of the proptech service providers certified by the UK Government as a digital identity service provider (“IDSP”).

We have summarised the adjusted ‘right to rent’ check requirements below.

Requirements

All landlords/agents are required to:

• Carry out a ‘right to rent’ check for all adult tenants who will live in the property as their only or main home.
• Request original documents from the tenant which show they have the right to be in the UK. The tenant must be physically present when these are checked.
  • If a tenant can produce any of the documents that establish that they have an unlimited right to rent (i.e. a British or Irish passport), there is no need to do a follow up check.
  • If a tenant believes they have an unlimited right to rent but they cannot produce certain documents evidencing this, additional documentation will be required. It may well be that the tenant only has a time-limited right to rent, which means that a landlord will have to carry out a follow-up check at the appropriate time.
• Make copies of the original documents and record when the check was completed. They should retain copies for at least one year after the tenancy agreement comes to an end and then destroy them.
• Conduct follow up checks at the appropriate time (e.g. repeat the check when a tenant’s Visa expires).

If follow up checks reveal that an occupant in a rental property no longer has a valid ‘right to rent’ then the landlord/lettings agent must report that person to the Home Office.

How to conduct the ‘right to rent’ check

There are several ways to carry out the ‘right to rent’ check. These are:

1. manually in person;
2. online using the Home Office service; or
3. by using Identification Technology via the services of an IDSP.

A landlord/agent must carry out an online right to rent check if:

1. the tenant has a biometric residence card or permit;
2. they have an EU settled or pre-settled status; or
3. they have applied for a Visa and used the UK Immigration ‘ID Check’ app to scan their ID on their phone.

They do not need to carry out an online check in any other circumstances.

Retrospective checks will not be required on biometric card holders who, before 6^th April 2022, used their physical card to demonstrate their right to rent.

When to carry out the check

The right to rent check must be carried out before the start date of the tenancy agreement.

If the tenant has unlimited right to rent, the check must occur at any time before start date of the tenancy. If the tenant has a time-limited right to rent the check must occur 28 days prior to the rent commencement date.

If the tenant has a time-limited right to rent, follow-up checks will need to be carried out within a certain period depending on the tenant’s circumstances.

Please get in touch with the Property Litigation department if you have any questions, concerns or require advice on the effects of this legislation.

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This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.

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