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9 September 2022

Right To Rent Check Guide For Landlords & Tenants

RC
Richmond Chambers Immigration Barristers

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Richmond Chambers is a multi-award winning partnership of specialist immigration barristers. Our barristers provide expert legal advice and representation, directly to individuals and businesses, in relation to all aspects of UK immigration law. We combine the expertise and quality of the Bar, with the service of a trusted law firm.
All landlords in England are required by law to conduct a ‘right to rent' check before leasing their property to a prospective adult tenant.
UK Real Estate and Construction
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All landlords in England are required by law to conduct a 'right to rent' check before leasing their property to a prospective adult tenant. The purpose of this requirement, introduced by the Immigration Act 2014 as part of the government's 'hostile environment' policy, is to prevent people without lawful immigration status from accessing the private rental sector.

If a landlord is found to be renting to someone who does not have a right to rent, they may be liable for a civil penalty of up to £3000 per tenant. If they did so knowingly, they may also be committing a criminal offence under section 33A of the Immigration Act 2014. However, carrying out right to rent checks properly will establish a 'statutory excuse' which will prevent both civil and criminal liability.

This post is a guide on when and how right to rent checks must be done. For landlords, it provides a step-by-step guide, and for tenants or lodgers it provides information on what you should expect your landlord to request from you. In future posts, we will consider some commonly asked questions regarding the right to rent requirement, and take a closer look at penalties for failing to comply with right to rent checks.

Who has a right to rent?

Everyone who has lawful permission to stay in the UK has a right to rent residential accommodation as their only or main home. The nature of that right will depend on the person's immigration status.

The following categories of people have an unlimited right to rent:

  • British citizens
  • Irish citizens
  • Individuals who have a right of abode in the UK
  • Individuals who have settlement/settled status/indefinite leave to remain (including under the EU Settlement Scheme)
  • Any other individuals who have no time limit on their permission to stay in the UK

The following categories of people have a time-limited right to rent:

  • Individuals with valid Permission to Enter or Permission to stay for a time-limited period (including EU Pre-Settled Status, or time-limited permission under the points-based system)
  • Individuals with an outstanding application with the Home Office

If a person requires permission to be in the UK but does not have it, they do not have a right to rent.

Do I have to conduct a right to rent check?

As a landlord, you are required to check that any tenant or lodger over the age of 18 can legally rent your property. That is the case even if they're not named on the tenancy agreement, there is no tenancy agreement, or the tenancy agreement is not in writing.

It should be stressed that the requirement to conduct right to rent checks applies only to private rented properties. You do not need to check tenants for the following types of accommodation or tenancies:

  • Social housing
  • A care home, hospice or hospital
  • A hostel or refuge
  • A mobile home
  • Student accommodation
  • Accommodation provided by a local authority
  • Accommodation provided as part of the tenant's job (known as 'tied accommodation')
  • Leases 7 years or longer

When should I conduct a right to rent check?

The check must be conducted before the start date of the tenancy agreement.

If the tenant has an unlimited right to rent, the check may take place at any time before the start of the agreement. For a time-limited right to rent, the check must take place no more than 28 days before the start of the agreement.

If it is not practical to check the documents before the tenancy is agreed (for example, if the prospective tenant lives abroad and wants to arrange their accommodation in the UK before they arrive), you can agree to a tenancy in principle, but should not confirm until after you have checked their documents.

If you have established that your tenant has an unlimited right to rent, you will have a continuous statutory excuse and will not need to carry out any follow-up checks. If your tenant has a time-limited right to rent, your statutory excuse will last until whichever is latest of the following:

  • 12 months from the date of the check;
  • The expiry of the person's permission to be in the UK;
  • The expiry of the validity of their immigration document evidencing their right to be in the UK.

In order to maintain a statutory excuse, you should conduct a follow-up check before the right to rent expires. If during the follow-up your tenant is unable to prove their right to rent, you should report to the Home Office using their online form. Doing so will preserve your statutory excuse.

How do I conduct a right to rent check?

The first step in conducting a right to rent check is to establish who your tenants are. This is any adult who will use your property as their main home.

For each tenant, you will then need to work out which method of check you need to use. There are three methods of conducting a right to rent check:

  • Checking the tenant's original documents
  • Conducting an online check using the Home Office online service
  • Using Identity Verification Technology via the services of an identity service provider (IDSP)

You must conduct an online right to rent check if the tenant:

  • Has a biometric residence card or permit
  • Has EU settled or pre-settled status
  • Has applied for a visa and used the 'UK Immigration: ID Check' app to scan their identity document on their phone

If the tenant does not fall into the categories above, an online check will not be possible. If the tenant holds a valid British or Irish passport, you may (but do not have to) use an IDSP. Otherwise, you will need to manually check their original documents.

Conducting a manual right to rent check

Once you have established that you need to conduct a manual right to rent check, you must ask your tenant for original documents to prove that they can live in the UK.

If the tenant is able to produce any one of the following documents, this will establish an unlimited right to rent (meaning you do not need to carry out a follow-up check):

  • A current or expired British passport;
  • A current or expired Irish passport or passport card;
  • A document issued by the authorities of Jersey, Guernsey or the Isle of Man showing that the holder has been granted unlimited leave to enter or remain (you must first verify this document with the Home Office Landlord Checking Service);
  • A current or expired passport or other travel document endorsed to show that the holder has the right of abode in the UK, is exempt from immigration control, or is otherwise allowed to stay in the UK indefinitely;
  • A current or expired immigration status document containing a photograph issued by the Home Office to the holder with an endorsement indicating that the person named in it is allowed to stay in the UK indefinitely or has no time limit on their stay in the UK;
  • A certificate of registration or naturalisation as a British citizen.

If the tenant believes they have unlimited permission to be in the UK but are not able to produce any of the above documents, they may alternatively establish an unlimited right to rent by producing two other documents from a list produced by the Home Office. The list, including the requirements for each document, can be found in full in here, and includes for example the following:

  • A current UK driving licence;
  • A birth or adoption certificate issued in the UK, Channel Islands, Isle of Man or Ireland;
  • A letter (issued no more than 3 months ago) from a government department or local authority confirming the holder is known to them;
  • A letter (issued no more than 3 months ago) from a British passport holder who is or has been a professional person or who is otherwise of good standing in their community, and who has known the holder for at least three months;
  • A letter (issued no more than 3 months ago) from the holder's employer, confirming their name, status as an employee and National Insurance number;
  • A letter from the holder's college or university confirming their acceptance onto a current course of study;
  • A letter from the police confirming that the holder's passport or other key identity documents have been stolen;
  • A document or ID card confirming that the holder is serving or has served in the UK armed forces;
  • A DBS certificate issued no more than 3 months ago.

If the tenant can produce any one of the following documents, this will establish a time-limited right to rent (meaning you will need to carry out a follow-up check at the appropriate time):

  • A current passport or travel document endorsed to show that the holder is allowed to stay in the UK for a 'time-limited period';
  • A current immigration status document issued by the Home Office to the holder, with a valid endorsement indicating that the holder has been granted limited leave to enter or remain in the UK;
  • A document issued by the authorities of Jersey, Guernsey or the Isle of Man showing that the holder has been granted limited leave to enter or remain (you must first verify this document with the Home Office Landlord Checking Service);
  • A document confirming that the holder has applied for limited leave to enter or remain in the UK under the EU Settlement or the equivalent schemes applicable to residents of the Channel Islands and Isle of Man. In each case you must also obtain a 'Positive Right to Rent Notice' from the Landlord Checking Service;
  • A passport of a national of an EEA country, Australia, Canada, Japan, New Zealand, Singapore, South Korea or the USA who is a visitor to the UK together with evidence of travel to the UK that provides documentary evidence of the date of arrival in the UK in the preceding six months.

Please note that if you are conducting a manual right to rent check, you cannot accept biometric residence cards or permits. If your tenant can only provide these, you will need to use the online checking service (see below).

To work out what documents you should ask for, you may find it useful to use the government's online guide. You may also find it helpful to consult the user guide for tenants and landlords, which provides further guidance including photographic examples illustrating what you should be looking for on the documents.

Once the tenant has provided their documents, you must check them to see whether they have the right to rent. You will need to check:

  • The documents are originals and belong to the tenant (you should do this with the tenant present)
  • Their permission to stay in the UK has not ended
  • The photos on the documents are of the tenant
  • The dates of birth are the same in all documents (and are believable)
  • The documents are not too damaged or do not look like they've been changed
  • If any names are different on documents, you must ask to see supporting documents which explain why, such as a marriage certificate or divorce decree

Once you have checked the documents, you should make and keep copies of them.

For passports, you should copy any page with:

  • The document expiry date
  • The holder's nationality
  • Date of birth
  • Signature
  • Biometric details
  • Photograph
  • Any page containing information indicating the holder has an entitlement to permission, Enter or Stay in the UK (visa or entry stamp)

For any other document, you should copy the document in full (including both sides).

You must retain the copies securely for at least one year after the tenancy agreement comes to an end, and then securely destroy them.

Finally, you should also record the date you made the right to rent check.

Conducting an online right to rent check

If the tenant has a biometric residence card or permit, has EU settled or pre-settled status, or has applied for a visa and used the 'UK Immigration: ID Check' app to scan their identity document on their phone, you will need to use the Home Office's online checking service to conduct a right to rent check.

First, the tenant will need to generate a 'share code' by using the following link. Once they have done so, they will need to share it with you - they can either do this directly, or via the service, in which case you will receive an email from right.to.rent.service@notifications.service.gov.uk.

Once you have received the share code, you can check the tenant's right to rent by following the link here. You should check that the photo shown on the webpage is of the tenant, and then retain evidence of the check by printing it or downloading it as a PDF or HTML file.

Using an IDSP

For tenants who hold valid British or Irish passports, you may use the services of an identity service provider to check documents.

The Home Office provides a list of certified providers here, though it is not compulsory to use one of the providers on the list.

You must be satisfied that the photograph and biographical information (such as the date of birth) on the response from the check are consistent with the prospective tenant. You should retain a copy of the response from the check for the duration of the tenancy and for one year after it has come to an end.

Further questions about right to rent checks for landlords and tenants

You may have further questions about the right to rent requirement, such as -

  • How do I know if the property will be the tenant's 'only or main home'?
  • What if the tenant does not have the right documents?
  • Can a lettings agent conduct a check?
  • Who is responsible for checks relating to subtenants?
  • What if I need help conducting a check?

We will be addressing these questions and others in an upcoming FAQs blog post.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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