Landlords must stay on the right side of the law on all manner of issues that affect their properties and tenancies. Right to Rent is just one of these and, if the rules are not followed, and a landlord is found to be renting to a person with no right to rent, the consequences can be very serious.
So, follow our guide on right to rent for everything you need to know as a landlord, and use this information to make sure you cover your back.
Right to Rent Guide
What is Right to Rent?
The term right to rent comes from a person’s right to live in the UK. If someone does not have the right to live in the UK, then they do not have the right to rent a property in the UK either.
The Right to Rent scheme was originally introduced to prevent illegal immigrants living in the private rented sector and comes under the Immigration Act 2016
Is Right to Rent a Legal Requirement?
Yes, the legal right to be in the UK must be checked for every prospective tenant over the age of 18, regardless of whether they will be on the tenancy agreement or not.
Who is Responsible for Checking Right to Rent?
Landlords (or their agent) in England are responsible for checking whether a prospective tenant has the right to rent in the UK.
They must check the immigration status of ALL prospective adult tenants, regardless of whether they’ll be named on the tenancy agreement and regardless of their nationality.
Right to Rent checks should also be conducted by the following parties;
- An occupier allowing a lodger to live in a property
- A tenant sub-letting part or all of a property
- A letting agent appointed in writing by a landlord
What Types of Tenants Need to be Checked?
At Horizon Lets we carry out checks on EVERYONE applying to rent a property through us. It’s against the law to only check people you think are not British citizens and you should not discriminate. See the code of practice for landlords issued by the government for further guidance.
One of our Lettings Managers, Samantha says “we check the right to rent for every potential tenant, every time. We take copies of passports at application stage and ensure we have fully checked a person’s right to rent before we even proceed to referencing”
Even if you know someone personally or are pretty sure that they are a British National – we recommend doing these legal checks anyway and keep the findings from the checks.
If a tenant started to rent a property before 1st February 2016, you do not need to check their immigration status.
Remember as well, that it is not just tenants who should be checked – you need to check ALL occupiers – including other family members, carers and any live in staff (such as nannies). So make sure you find out who they are going to be.
The only exception to the checks are children under 18 and remember – DO NOT allow anyone to move into your property until right to rent has been checked.
It is also worth noting that right to rent checks are not a legal requirement for tenants in the following types of accommodation;
- Social housing
- A care home, hospice or hospital
- A hostel or refuge
- A mobile home
- Student accommodation
How is Check Right to Rent Checked?
Landlords and letting agents should understand how to check the evidence provided by tenants.
- For UK and Irish citizens, a passport, birth certificate or driving licence can be used, but you must see original copies. The documents should be checked with the prospective tenant present.
- For EU, EEA and Swiss nationals, and citizens from outside the EU and EEA, the landlord should request a ‘share code’ from the prospective tenant so that a digital check can be made.
Landlords and letting agents should then visit https://www.gov.uk/view-right-to-rent and enter the share code together with the person’s date of birth to receive their immigration status.
Physical documents do not need to be seen if you use the online checking service, as information about an individual’s right to rent is provided in real time directly from Home Office systems.
Your tenant’s share code will be valid for 30 days from the day they create it so make sure you check it within that timescale. After the 30 days the code will no longer be valid, and the only way to check your tenant’s immigration information would be for them to obtain a new share code.
We also have a few tips that we suggest you follow when doing right to rent checks;
- Do the documents appear genuine?
- Do the documents look like they have been tampered with?
- Does the appearance of the person match their photograph?
- Do any of the circumstances appear suspicious?
It may ring an alarm bell, for instance, if people are renting a property which appears far too large for them – could they move in some unauthorised persons later on?
Horizon Lets always recommend that regular mid-term inspections are conducted to check the condition of a property, and they can also be a useful opportunity to check for signs of occupancy that you have not been told about.
Who Has the Right to Rent?
Prospective tenants have the right to rent a residential property if any of the following apply;
- They are a British citizen
- They are an Irish citizen
- They have permission to be in the UK, including both work and student visas
- They have indefinite leave to remain or have settled status
- They have been granted permission through the EU Settlement Scheme
- They have time limited permission to stay in the UK
- They are considered to have refugee status or have humanitarian protection
If a person requires permission to be in England and they do not have it, nor do they have an outstanding application with the Home Office, they consequently have no right to rent.
Please note as well – if you rent a property to a tenant who’s right to rent expires part way through the tenancy, you must re-check it before the expiry date to ensure they can remain in the property.
Keeping Records
The law requires you to keep copies of documents for the length of the tenancy and for at least one year afterwards. However, you do need to take care when doing this as this documentation would be very valuable to fraudsters!
Make sure all copies of passports and right to rent documents are held securely, and that you comply with data protection legislation.
Horizon Lets uses cloud storage for all files, especially data sensitive ones. We take cyber security extremely seriously and use multi-factor authentication on our platforms to be extra safe.
Have Clauses in Your Tenancy Agreement
It’s good practise to list all persons occupying your property who are not tenants (permitted occupiers) on the tenancy agreement and ensure that they are all checked for right to rent. You can then make sure you include a clause forbidding the tenants to allow anyone else to live there.
If the Home Office later found illegal occupiers at the property, your tenancy agreement would be valuable supporting evidence.
Right to rent checks can sometimes be difficult when tenants are coming in from abroad so, in this context, you may want to consider a ‘conditional tenancy agreement’. If your tenants sign the tenancy agreement before any checks are done, you can protect your position with a clause saying that the agreement is conditional upon a satisfactory right to rent check.
If they then fail the check, you will not have to rent the property to them. This clause is standard in our Horizon Lets tenancy agreements and we ALWAYS ensure the right to rent check is done before handing over the keys to the property.
As the Right to Rent rules require landlords to keep the information and copies of documents, you may want to refer to this in your tenancy agreement. Have a section for ‘data protection’ and say that in some circumstances you may be obliged to pass information over to the Home Office.
What are the Penalties for Having Illegal Tenants?
Landlords can be fined up to £3000 for renting to an individual who does not have the right to rent or fails a right to rent check.
The Home Office will serve a notice with a request for evidence that the necessary checks were carried out – landlords who can show that they did carry out the correct right to rent checks will be able to mount a defence.
This is why at Horizon Lets we follow a stringent in-house process for checking right to rent, and for securely storing the documentation. Should we ever be challenged we will always be able to prove that we complied with the rules.
If a landlord discovers that an existing tenant no longer has lawful status in the UK, they do not need to take action to evict the tenant. However, they must make a report via the GOV.UK website at the Home Office using their online form, to maintain their statutory excuse.
Remember that it is not the role of a landlord or letting agent to enforce the immigration rules – this should be left to immigration officers.
The most important thing for all landlord and agents, is to stay on the right side of the right to rent rules, and always save the documents. The most up to date and full guidance can be found on the government website here
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