What is right to rent?

Right to rent refers to the mandatory checks that the Government introduced as from the 1st of February 2016 relating to the nationality of a tenant to ensure that they are not an illegal immigrant. These controls were brought in by government and now use landlords as the first line of defence in the battle of illegal immigration into the UK. It has been initiated by the Home Office.

When do landlords have to do the right to rent checks?

This legislation covers lettings by both landlords and their agents.

Landlords are legally required to carry out their right to rent checks at the start of any new tenancy.

You must check that a tenant or lodger can legally rent your residential property in England. Right to Rent checks apply to a number of residential agreements not just Assured Shorthold Tenancies. These include:

tenancies
sub-tenancies
leases of less than 7 years
sub-leases
licences

Before the start of a new tenancy, a landlord must make checks for all tenants aged 18 and over, even if:

they’re not named on the tenancy agreement
there’s no tenancy agreement
the tenancy agreement isn’t in writing

NB for tenants who are only allowed to stay in the UK for a limited time then these right to rent checks will need to be performed 28 days before the start of the tenancy.

Which tenants do landlords not need to perform a right to rent check on?

accommodation arranged by local authorities or relevant NHS bodies in response to statutory duty
care homes,
hospitals,
hospices
social housing
hostels and refuges
tied accommodation
student accommodation
long leases

How to make a right to rent check?

A landlord must check that a tenant or lodger can legally rent your residential property in England.

Before the start of a new tenancy a landlord must make checks for all tenants aged 18 and over, even if:

they’re not named on the tenancy agreement
there’s no tenancy agreement
the tenancy agreement isn’t in writing

What checks should be included in the right to rent checks?

Before letting a property to a new prospective tenant, landlords or their letting agents should follow four initial right to rent steps:

1.    Establish who will be living at the property
2.    Landlords must see original and genuine documentation which proves the tenant has a right to    live in the UK and check the document’s validity in the presence of the holder
3.    Retain a copy of the documents and record the date of the check
4.    If the person’s right to rent in the UK is for a limited time only, the landlord will need to make a note of the date this right will expire in order to make a follow up check. Depending on which is the longest, landlords must make a further check just before either the expiry date of the tenant’s right to stay in the UK, or 12 months after the previous check.

My opinion is landlords should check the status of all prospective tenants to avoid breaching discrimination laws, even if they’re sure of the person’s ability to rent in the UK because they know them. It’s important to not make assumptions.

There is a comprehensive list of documents that a landlord will need to look at to fulfil their duties under the Right to Rent legislation.

Check if the property is used as the tenant’s only or main home

A property would usually be a tenant’s only or main home if:

they live there most of the time
they keep most of their belongings there
their partner or children live with them
they’re registered to vote at the property
they’re registered with the doctor using that address

Check their original documents

When you’re with the tenant, you need to check that:

the documents are originals and belong to the tenant
the dates for the tenant’s right to stay in the UK haven’t expired
the photos on the documents are of the tenant
the dates of birth are the same in all documents (and are believable)
the documents aren’t too damaged or don’t look like they’ve been changed
if any names are different on documents, there are supporting documents to show why, e.g. marriage certificate or divorce decree

If the tenant is arranging their tenancy from overseas, you must see their original documents before they start living at the property

What happens if a landlord doesn’t carry out right to rent checks?

There are significant penalties for landlords that fail to carry out the right to rent checks. The main penalty is a fine of up to £3000.00.

Amy Castleman of Premier Solicitors comments that as of December 2016, landlords who fail to comply with the Right to Rent scheme will face a range of penalties which could include up to five years in prison. The current penalty is a fine of up to £3,000.00.

The Right to Rent was introduced across England in February 2016 and places a duty on a landlord to check that a prospective tenant or lodge can legally rent your residential property in England. All tenants should be checked as it is against the law to only check people you believe aren’t British citizens.
The new penalties were recently announced by the Home Office following the implementation of the Immigration Act 2016 which comes into effect from December 2016. Prior to this, the penalty was a fine but the new provisions have created four new criminal offences that extend the consequences to include a fine, up to five years in prison or both. A persistently ignorant landlord could receive a fine, prison sentence and continuing sanctions for failure to take steps to remove illegal migrants from a property under the Proceeds of Crime Act 2002.

This means that compliance with the Right to Rent regulations will be even more important due to the threat of a custodial sentence if they fail to do so. Most landlords will know that illegal immigrants do not have the right to rent a home in the UK, but some landlords continue to exploit this market for financial gain. The Home Office has had no choice but to crackdown on this situation.

Landlords should ensure that they are adhering to the Immigration Act and if they have doubts, they should work closely with experienced letting agents and solicitors. Under the new regulations, letting agents will also be liable to a fine if they fail to meet the regulations.

If a landlord needs to evict a tenant, illegal or otherwise, they are able to if they follow the legal route obtaining a court order for possession. In relation to illegal immigrants, the regulations are designed to make the process easier by providing additional grounds for possession and landlords may be able to evict an illegal immigrant without a court order.

Right to Rent legislation:

The legistlation for the right to rent checks is laid out in this document.

The full details of the Immigration Act 2016 are laid out in the legislation and contain the details of the provision of the Right to Rent regulation.