Immigration Act and Right to Rent Checks

Right to Rent checks requires landlords or agents to check ID to determine the immigration status of all prospective adult tenants before the start of a tenancy.

Right to Rent checks started as a pilot scheme in parts of the West Midlands in December 2014 before rolling out across England on 1 February 2016. The rules do not currently apply in Wales, Scotland and Northern Ireland.

Where an adult occupier has a time limited right to remain, landlords and letting agents will need to conduct follow up checks. These need to be made 12 months from the initial check or at the expiry of the individual’s right to be in the UK, whichever is the later.

We have been part of the landlord panel throughout the development of Immigration Act 2014 and Immigration Bill 2015 and have delivered a series of events across England to support letting agents in complying with the legislation.

The Home Office Landlords Consultative Panel reconvened in October 2018 and further meetings are planned throughout 2019. The Panel focuses on how the UK Government can best support the private rental sector to deliver the Right to Rent scheme effectively.

Parliament

Government Guidance on Post Brexit Right to Rent Checks

Agents must continue to apply Right to Rent checks up until the point that any new guidance is issued.

There have been a number of political speeches in recent months about the Government’s intentions after Britain leaves the EU however there are still no firm plans in relation to Right to Rent checks and therefore agents are required to continue to conduct checks in accordance with existing procedures. While it looks likely that there will be changes to the eligibility to rent on the basis of nationality, it is important to remember that any future changes cannot be backdated.

Where an applicant meets the eligibility criteria they must not be subject to discrimination. ARLA Propertymark continues to remind the Home Office that agents will not be able to determine which of their tenants are EU or Swiss nationals in the event of Brexit, as this has never been part of the checking process.

ARLA Propertymark continues to work as part of the Home Office’s Landlord Consultative Panel to try to ensure that certainty for tenants, landlords and agents is achieved as soon as possible in the lead up to the UK’s departure from the EU.

There are currently no plans to roll the scheme out to Scotland, Wales or Northern Ireland.

Further reading

  • Moving to the UK after Brexit  Government guidance on the immigration arrangements for EU, EEA and Swiss citizens who move to the UK after Brexit if the UK leaves the EU without a deal.
  • A short guide on right to rent – Official guidance giving an overview of right to rent checks and the civil penalities a landlord can face for illegal renting.

Changes in relation to visitors from BJ5SSK

In May 2019, changes were made to Border Control ending the process of stamping the passports of visitors from USA, Canada, Australia, New Zealand, Japan, Singapore and South Korea. These stamps have previously been used as an item of identification in Right to Rent checks, therefore, this will be significant for some agents. Those visitors with a biometric passport can pass quickly through eGates, those without will see a border force officer but will only be advised verbally of their leave to remain and any associated conditions.

Visitors can legally remain for a period of up to six months without a visa and therefore the Home Office has issued binding written guidance which states that the individual’s Right to Rent can be demonstrated through their passport along with evidence of the last time they travelled to or entered the UK, this is likely to be an airline, ferry, Eurostar ticket or equivalent.

Agents must only focus on following the published guidance in order to create and retain evidence of excuse against penalty. If in the course of a follow-up check, an agent finds that a tenant is still resident and cannot provide further valid evidence of their Right to Rent, they must report the case to the Home Office and hand responsibility for any further action to Immigration officials.

High Court Review

On 1st March 2019, the High Court delivered a verdict in a case brought by parties including Joint Council for the Welfare of Immigrants (JCWI) and Residential Landlords Association. Judges ruled that the scheme is leading to discrimination and further evaluation must be carried out before the scheme is rolled out to Scotland, Wales and Northern Ireland.

New Offences Came Into Force on 1 December 2016

The Home Office announced on 2 November 2016 that the date for new offences under Immigration Act 2016 relevant to the private rented sector in England. These offences came into force after 1 December 2016.

These measures followed the introduction of civil penalties created under Immigration Act 2014 and aim to:

  • Make it easier for private landlords to evict illegal migrant tenants.
  • Create new criminal offences for rogue landlords and agents who knowingly, or with reasonable cause to believe, let to illegal migrants.

The offences are part of wider Government measures to tackle illegal immigration and protect public services and access to the private rented sector for lawful residents.

SINCE 1 DECEMBER 2016:

  • Landlords could be charged with a criminal offence if they know, or have reasonable cause to believe, that they are letting to an illegal migrant.
  • Landlords will be able to obtain a notice from the Home Office to end tenancies for occupants with no Right to Rent.

The vast majority of landlords who are found to be renting to illegal migrants and who have not carried out Right to Rent checks, where the scheme has been implemented in their area, will be dealt with under the civil penalty regime. The new offences will be targeted at the smaller number of rogue landlords who are intent on flouting the law.

Overseas Students With Time Limited ID

Agents carrying out Right to Rent checks on overseas students in joint tenancies prior to the start of the academic year should be aware of an exemption process.

Many students secure tenancies which begin weeks or months before they arrive to take up occupancy, meaning that agents cannot comply with the Code of Practice requirement to carry out a face-to-face check within the 28 days preceding the start of the tenancy.

ARLA Propertymark raised this issue as part of ongoing implementation work with the Home Office who have now agreed a template letter that can be used to implement an exemption in place for universities to nominate students to take up residence in a specified property in the private rented sector.

The student can activate the process by requesting the letter however the correspondence must be on the university’s letterhead and must specify the student’s name and date of birth along with the address of the property.

While technically this process creates an exemption, it remains best practice to carry out a face to face check on the student’s arrival and retain records according to the code, even if this check is taking place outside of the 28 days of the start of the tenancy.

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HOME OFFICE LETTER TEMPLATE

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‘Windrush’ - Undocumented Commonwealth citizens resident in the UK 

In April 2018, the Government issued new guidance to landlords wishing to rent to Commonwealth citizens (known as members of the Windrush generation) who have been in the country for decades but found themselves unable to evidence their legal right to remain in the UK. More info...

Helping You Comply

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Our member only fact sheet outlines the latest advice around the Immigration Act 2016 and Right to Rent checks

Download our fact sheets

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We are regularly speaking with the Home Office to order to get answers for many of the common Right to Rent issues.

Frequently asked questions

 

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Government guidance for landlords, homeowners and letting agents affected by right to rent immigration checks.

Landlords' code of practice

 

If you have any enquiries about Right to Rent checks you can contact the ARLA Propertymark Legal Helpline on 0330 124 1212 or email Rachel Hartley, Marketing and Communications Manager.

useful links

Useful Links

ID examples for checks
UK Visas and Immigration Enforcement guidance on the rules to follow to check documents with examples of acceptable documents from 1 February 2016.

Our response to the Home Office proposals for an Immigration Bill 2015
Read our consultation response from August 2015 to the Home Office proposal for an Immigration Bill.

What the checks mean for you
This article by the Home Office discusses the Right to Rent checks and what they actually mean for private landlords and tenants.

Evaluation of the Right to Rent scheme: Full evaluation report of phase one
This Home Office evaluation reports on the impact of phase one of the Right to Rent scheme.

Research with landlords, letting agents and tenants
This Home Office report is part of the evaluation of phase one of the Right to Rent scheme.

Mystery shopping to test the potential for discrimination within the sector
This research published by the Home Office tested whether landlords and letting agents discriminated against potential tenants as a result of the Right to Rent provisions of the Immigration Act 2014.