The 2014 Immigration Act introduced the ‘Right to Rent’ in the private residential sector. The scheme itself places responsibility on landlords to check that any tenants, age 18 or over, have legal status to reside in the UK. The stakes are potentially high for those found to be non-compliant, who may face an unlimited fine or even imprisonment.
The scheme is a key plank of the government’s ‘hostile environment’ policy (or to coin the cuddlier terminology used by Sajid Javid, the ‘compliant environment’), a raft of measures brought in by Theresa May when she was Home Secretary, with the aim of making life as difficult as possible for those living in the UK without immigration status. The measures require individuals to prove their immigration status in order to carry out a range of everyday activities, such as renting property, opening a bank account, or visiting the GP. A key feature of the policy is, effectively, to turn private entities and citizens (including landlords) into immigration officers, by requiring them to carry out checks on individuals’ immigration status and by criminalising the provision of certain services to those without the required status.
In April the Home Office won an appeal against a 2019 High Court ruling that deemed the scheme to be unlawfully discriminatory. Whilst recognising discrimination as a consequence of the scheme, the Court of Appeal found it justifiable as a means to achieve the legitimate objective of immigration control. The Joint Council for the Welfare of Immigrants, who brought the initial legal challenge to the scheme, have stated their intention to take the case to the Supreme Court, but for the time being the Right to Rent remains. Landlords should therefore equip themselves with an understanding of the correct procedure: to request, check, and then retain copies of relevant identification documents. They must also take care not to unlawfully discriminate when renting property and carrying out checks.
As with the ‘Right to Work’ checks for employers, a failure to carry out said checks is not in itself an offence. However, carrying the checks out correctly provides a statutory excuse against a penalty, should a landlord be found to have rented a property to an individual who did not have the ‘right’ to rent it, and therefore mitigates risk.
Guidance published by the Home Office on 30 March details temporary adjustments to the process due to COVID-19, allowing landlords to make the checks remotely. Under the current conditions, landlords should request a scan or photo of original documents, confirm over video call that the copies match and record the date that the adjusted check took place. When these changes will conclude is not yet known, but once they do, additional retrospective checks may be necessary, particularly for any tenancy that began during the current crisis.
It is worth noting that should an
occupier sub-let the property, the obligation as regards Right to Rent falls to
them. Further to this, a landlord may agree in writing with an agent to pass on
the liability to carry out checks, thereby transferring risk and helping to
avoid unwanted penalties.
You can find out more about how
to check your tenant’s Right to Rent at:
https://www.gov.uk/check-tenant-right-to-rent-documents/how-to-check
https://www.gov.uk/guidance/coronavirus-covid-19-landlord-right-to-rent-checks
https://www.gov.uk/government/publications/right-to-rent-landlords-code-of-practice
https://www.rla.org.uk/landlord/guides/preparing-landlords-for-the-right-to-rent.shtml
If you have any further questions please do get in touch with Chetal Patel from our Immigration team who would be happy to assist you further.