What is right to rent?
Right to rent refers to an individual’s right to rent a property in the UK. People can have both permanent and time limited right to rent. However, if a person does not have right to rent, then you cannot give them a tenancy in a private property.
Legislation on Right to rent came in with the Immigration Act 2014 which requires landlords and agents (if they accept the responsibility) to check a renter’s immigration status at the start and throughout the tenancy. In 2016, this was amended to include penalties for failure to carry out these checks.
When does it apply?
Right to rent applies to most residential tenancies such as Assured Shorthold Tenancies. However, there are some exemptions. These exemptions include: holiday lets, lettings where it is not the tenant’s main home, accommodation that is provided by an employer, tenancies with a fixed term of more than 7 years that does not contain a break clause for the landlord, accommodation that an educational institution has put students into, and mobile homes.
All other types of accommodation and tenancies are require right to rent checks to be carried out.
Who is responsible?
The landlord is responsible for carrying out right to rent checks and is the one that will be prosecuted if they are not done.
However, you can pass this responsibility onto your agent but only if you have a specific written agreement that states that they take on the responsibility for carrying out the right to rent checks. If it is not written specifically into the agreement, then the responsibility still falls to the landlord.
In cases where there is a subtenancy, the tenant who is renting to the sub-tenant is responsible for carrying out right to rent checks. In cases of unauthorised sublets, the landlord is not liable for any checks not being done.
Who is subject to right to rent checks?
Anyone over the age of 18 who will be living in the property as their main home needs to be checked. This includes anyone moving into a private rented or social tenancy that is not listed on the exemptions list from the previous slide. And importantly, right to rent checks also include British citizens.
The right to rent checks should be carried out before an AST is signed. When you do the initial pre-tenancy checks, if the individual is shown to have time limited right to rent, then you must carry out checks again before the right to rent expires and also at the end of the fixed term. These follow up checks should be carried out 1 to 2 months prior to the right to rent expiring or the fixed term ending.
What if I don't do them?
If you don’t do the checks on your prospective tenants when you should, then the updated legislation from 2016 means that you can face imprisonment. The Home Office is able to serve a notice on you to ask for proof of your checks, if you cannot provide this to them, then both civil penalties and prosecution may be applied.
You are allowed a defence, such as in cases where the document you sighted was fraudulent, but you still carried out the necessary checks.
Because of this, it is really important that you keep a good record of the checks that you are carrying out.
Civil penalties can be imposed on those landlords and agents who do not carry out right to rent checks. These can be quite substantial. If you do not check a lodger’s right to rent details for a first offence the fine can be up to £5000 and for a second offence this can be up to £10,000. For those who do not check an occupier or a tenant’s right to rent a first offence can cost you up to £10,000 and a second offence of not checking can cost up to £20,000.
You can maintain a statutory excuse if you checks have been carried out in accordance with the government guidelines but the tenant has for example provided a fraudulent document.
These fines can also be implemented if you knowingly rent to someone with no right to rent. However, in this instance the Home Office can also decide to prosecute and you could face up to 5 years in prison if found guilty.
What should you be checking and how?
Firstly you can check someone’s right to rent status online. Some people may only have this option and they will have access to a share code which they will need to give you along with their date of birth.
Once you have these, you can then check their right to rent online at gov.uk/view-right-to-rent. Copies of the checks that you view online should be kept and stored securely.
You can now also check the validity of UK and Irish passports online through an Identity Service Provider, but there is a charge for this and it’s not mandatory that you check these documents this way.
The second option that you have for checking someone’s right to rent is looking at their documents. When doing these checks, you must accept any of the documents that they give you, as long as they are valid and feature on the list of approved documents. You cannot request preferred documents.
As you can see below, the list of approved documents is broken up into 3 parts. The individual will need to show you 1 document from List A group 1 OR 2 documents from List A group 2, OR 1 document from List B.
Examples are British passports, immigration letters, birth certificates, and passports showing a right to stay for a limited time period. There are many more options, and these can be viewed at gov.uk.
Finally, if the individual does not have a share code or any of the documents listed on the previous slide, then you can contact the Home Office to confirm their right to rent. Information on this can be found below. The Home Office will then respond to say whether or not that person has a right to rent in the UK.
You must offer all of the options for the right to rent check to avoid being accused of discrimination for example against those without passports.
Links and guidance
For more information please see the government guidance on right to rent checks - Landlord's guide to right to rent checks - GOV.UK (www.gov.uk).
To check someone's right to rent with a share code, see here - Check a tenant's right to rent in England: use their share code - GOV.UK (www.gov.uk).
If they don't have a document or a share code, request information on someone's right to rent from the Home Office here - Right to rent (homeoffice.gov.uk).
If your tenant fails a right to rent check during their tenancy, make a report to the Home Office here - Make a report – Landlords make a report – GOV.UK (homeoffice.gov.uk).