A helping hand: Conducting Right to Rent checks

This article is an in-depth version of the guide published in Property, The Official Publication of the NRLA (Winter 2021)

Following the end of the transition phase to Brexit, the rules regarding Right to Rent checks have been amended. Those rules have now been running for some months and we thought a review would be helpful for those landlords who decide to carry out the right to rent checks themselves.

A quick overview

Right to Rent checks were first introduced by the Immigration Act 2014. They require landlords or, if they have agreed in writing to do so, their agents to carry out checks to ensure that their prospective tenants are in England lawfully and have a Right to Rent. While this legislation is intended to cover all of the UK the Right to Rent has still not been rolled out beyond England at this stage.

What are the recent amendments to Right to Rent checks? 

Most of the changes relate to the changing relationship created by the UK’s departure from the EU. Previously, verifying lawful status for an EEA or Swiss national was simple and straightforward. EEA or Swiss nationals simply needed to present their passports or national identity cards. However, following the Brexit transition changes were implemented as of 1 July which now imposes further checks on these nationals who now need to provide evidence of their Right to Rent by producing confirmation of their EU settled status or eVisa. 

In summary the following nationals need to provide at the very minimum the following documents: 

• British and Irish citizens – a current and valid passport or other proof of residency
• EEA and Swiss nationals – a current and valid passport along with confirmation of EU settled status or pre-settled status or eVisa.
• Nationals from other countries – a current and valid passport along with a valid visa. 

EEA or Swiss nationals who have obtained EU settled status should have an eVisa which they can produce on request. In the absence of an eVisa you can use the Home Office checking service but you will need to liaise with the tenant to do this. 

Conducting Right to Rent Checks

It is important to mention that the power to conduct Right to Rent checks online without a face-to-face meeting has now been extended to 5 April 2022. This means that documents can be scanned and sent by email and then verified by means of a video call where the tenant can show their original documents on screen for comparison with the scanned versions and the photos with the actual person. 

Prior to March 2020 and the Covid pandemic Right to Rent checks were carried out in person with prospective tenants producing ID documents (usually their passport but in many cases additional documents as well) to prove that they had the Right to Rent. 

Where a prospective tenant has no time limit on his Right to Rent then the checks should be carried out any time prior to the tenancy commencement. However, if there is a time limit, such as where the tenant has a time limited visa for study or another purpose then the checks must be done in the 28 days before the commencement of the tenancy. 

So who has an unlimited and limited Right to Rent? 

At the moment the following have an unlimited Right to Rent:

• British citizens 
• Irish citizens 
• People with EU settled status 
• People who have the right of abode, or who have been granted indefinite leave to remain, or have no time limit on their stay in the UK.

For those with an unlimited Right to Rent further checks are not required. This means once the unlimited Right to Rent has been established no further checks are required through the tenant’s occupation of that property. 

Those with a time limited Right to Rent:

• people with valid leave to enter or remain in the UK for a time limited period, which includes EEA citizens with pre-settled status or EEA and non-EEA citizens granted time-limited leave under the points-based immigration system. 
• people with an outstanding application with the Home Office. 

Those with a time limited Right to Rent must be checked again if their Right to Rent will end during the tenancy period. The follow up check should be carried out shortly before the Right to Rent expires and in the event that the tenant no longer has a Right to Rent a report will need to be made to the Home Office to avoid any sanctions. 

Additional considerations for EEA citizens

The rules for EEA citizens, Australia, Canada, Japan, New Zealand, Singapore, South Korea or the USA who are visitors to the UK are a little more complex. If they have biometric passports then they are usually permitted to remain for up to 6 months and do not necessarily need to enter with a visa. So for these individuals with biometric passports, they can prove a time-limited Right to Rent with:

1. an original or copy of a boarding pass or electronic boarding pass for air, rail or sea travel to the UK, establishing the date of arrival in the UK in the preceding six months 
   
2. an original or copy airline, rail or boat ticket or e-ticket establishing the date of arrival in the UK in the preceding six months 
   
3. any type of booking confirmation (original or copy) for air, rail or sea travel to the UK establishing the date of arrival in the UK in the preceding six months 
   
4. any other documentary evidence which establishes the date of arrival in the UK in the preceding six months.

However, for these citizens the Right to Rent is not strictly for 6 months because of the complex way that the Home Office operates Right to Rent. From the date that you carry out the Right to Rent check, further checks are not required during what the Home Office refers to as the ‘eligibility period’. This eligibility period is 12 months which means, despite what the documents may state, from the date that you carry out the check you do not need to do so until 12 months later. Of course it is possible for these citizens who are planning on staying longer to obtain and produce a visa in their passport on entry in the UK and to collect their biometric residence permit post-arrival. They could also have been issued an eVisa in advance of their travel. 

Your responsibility as a landlord

Whatever the prospective tenants situation and whatever their paperwork, it is important that the rules are followed correctly to avoid any accusation of discrimination.

It is important that you keep a copy of the documents you obtain and notes on the method you use to verify it. The Right to Rent checks are a legal requirement and for those that fail to carry them out or carry them out correctly could face a civil penalty of up to £3,000 per person and/or a criminal conviction which may carry a prison sentence. 

If a tenant fails a Right to Rent check a landlord is only required to take action and report this to the Home Office if the tenant is already in occupation of the property. In which case the tenant will then need to be evicted. Therefore checks before the commencement of the tenancy are always recommended as tenants can be rejected before entering into an agreement if they do not pass and nothing more needs to be done. 

This is a concise guide of the Right to Rent checks and should not be relied on solely to comply with the law. At Howsy, we frequently conduct Right to Rent checks on behalf of our Landlords across England. If you would like help with managing your rental properties, give us a call on 0330 999 1234 or live chat with us.

Gurdeep Clair is Head of Legal & Compliance at Howsy