This page aims to give guidance to housing associations on how 'right to rent' document checks affect their procedures, such as their allocations and lettings policies, their policies on lodgers and their procedures for verifying tenancies. Some aspects of the law are still unclear: where necessary the guidance below represents our current interpretation and it may be updated as official guidance or case law changes. Separate pages cover the 'right to rent' generally, for tenants and for advisers.
The Immigration Act 2014 (part 3, chapter 1) places a duty on a landlord (or a tenant taking in a lodger) to carry out a 'right to rent' check on each letting. Failure to comply can result in a civil penalty. (The Immigration Act 2016 will also make it an offence punishable with up to five years in prison if the landlord (including a director, manager or secretary) lets a property knowing or having reasonable cause to believe the applicant does not have the right to rent, but that is not yet in force).
The legislation applies to the whole of the UK and is brought into force in each country by the Home Secretary (not the devolved administration). Commencement will vary between the four countries. Currently the law is in force only in England, and applies to any new lettings starting on or after 6 February 2016 (1 December 2014 for lettings in the original pilot areas in the West Midlands).
In Scotland, Wales and Northern Ireland, prior to commencement housing associations must not conduct right to rent checks or otherwise reject direct applications for housing on the grounds of immigration status: to do so would almost certainly constitute unlawful discrimination. On commencement the law will be the same as in England.
The checks do not apply to any new letting or transfer made directly by or through the local authority (such as from the waiting list, via a nomination agreement or arising from a homelessness or social services duty). In relation to nominations, housing associations can rely on the LA performing its own checks on the eligibility of any nominee, so if there is an error clearly it is the LA's responsibility. In this sense nothing has changed from before right to rent began, since associations normally accept that any nomination is bona fide under the nomination agreement, including the entitlement to a tenancy.
Other exceptions include:
- any letting in a hostel, refuge or care home provided by a not-for profit body, or on a non-commercial basis and funded by a public body
- certain lettings made to students nominated by their educational establishment
- accommodation provided to asylum seekers via Home Office contracts
- lettings on 'long leases' (of over seven years), including shared-ownership tenancies
- tied accommodation (e.g. provided to staff in a care home or hostel)
- exchanges between existing tenants whose tenancies were originally exempt from the scheme (e.g. local authority nominees).
Other than the above, supported housing tenancies are not exempt although many will be LA nominations.
The checks apply to almost any other offer of accommodation made by:
- a private registered provider
- any other not-for-profit landlord (such as a charity)
- a private landlord
- a tenant or homeowner taking in a lodger (the tenant, not their landlord, is responsible, but liability may be reversed if the landlord has to give their specific consent)
- a landlord adding an adult to an existing tenancy to make it a joint tenancy: in such cases the checks will need to cover all tenants and adult occupants.
The landlord or person responsible for making the checks can appoint an agent to do them on their behalf, but this must be by a written agreement that specifically covers the Immigration Act 2014.
Any offer of accommodation made by a housing association (or 'private registered provider') other than one made through an agreement with a local authority potentially falls within the scheme. The overall result is:
- if all of your lettings are made through the local authority (such as through a common waiting list or 100 per cent nominations agreement) then you do not need to do right to rent checks (nor are follow-up checks necessary on people with limited leave to remain) (but see the checklist below).
- if some of your lettings are made through the local authority and the remainder are direct applications, then the right to rent checks apply to any direct applications
- in any other case (i.e. if you run your own waiting list) then the right to rent checks apply to all offers.
A right to rent check must be carried out for each adult occupier - not just the prospective tenant(s). For overall help, see our general guidance on document checks by landlords.
Be clear about the scope of the right to rent
The right to rent is entirely separate from, and less restrictive than, the right to access public funds or claim welfare benefits (and, besides, the offer of accommodation by a private registered provider does not count as public funds). An applicant can have the right to rent even if his/her immigration status forbids claiming public funds or disqualifies him/her from housing benefit. Consequently, a policy that excludes applicants based on their immigration status or entitlement to housing benefit would constitute unlawful discrimination.
EEA and Swiss nationals are not covered
Any citizen of the UK, Ireland, a European Economic Area (EEA) member state (including Croatia) or Switzerland is a relevant national and not covered by the Act, and so has an automatic right to rent regardless of their work or benefit status. However, a document check is needed for all adult applicants to ensure they are UK or other EEA nationals. It is recommended by the Home Office code of practice to demonstrate a consistent non-discriminatory approach. Proof of age of older children in the household is also advised (to show they are exempt).
Nationals of non-EEA countries
A person has an indefinite right to rent if:
- he/she has indefinite leave to remain (settled status)
- he/she is a citizen of a Commonwealth country with the right of abode in the UK (note that few people have this).
A person has a time-limited right to rent if:
- he/she has limited leave to remain, or
- he/she is not a relevant national but has a right to live in the UK under EU law because they are a family member of an EEA national or are the sole carer of a British child.
A person has a discretionary right to rent if they are granted a discretionary right to rent from the Home Office even though they have no current leave. Typically this will be granted to a person waiting for a decision from the Home Office regarding their immigration status (this includes asylum seekers) or a person who does not have leave but who cannot be removed, for example because they are appealing against a Home Office decision or awaiting a decision on whether they are a victim of trafficking. You can find out if a person has the discretionary right to rent through the Home Office landlord checking service, giving the prospective tenant's name and Home Office reference number. Landlords are expected to make their own enquiry each time and not rely on any proof that the discretionary right to rent was awarded via a previous landlord.
The requirement for landlords to make repeat checks on occupants applies only where they are known to have a time-limited right to rent. Landlords must record the date the eligibility period ends and conduct a repeat check in the one-month period before it expires. The date the eligibility period ends is whichever is the latest of:
- the date one year on from the date on which the checks were last made
- the date that person's leave to be in the UK expires
- the date the validity period of the document which evidences their right to be in the UK expires.
Landlords may already have their own procedures for verifying identity to prevent tenancy fraud, which they may wish to integrate with the repeat checks for the right to rent to save time and difficulty. However, the two should not be confused:
- exposed false identity or illegal subletting can result in termination of the tenancy but is not reportable to the Home Office
- if the tenant cannot provide evidence of their right to rent the landlord must notify the Home Office but that fact has no effect on their tenancy whatsoever.
What happens if someone 'fails' the document check
If a prospective tenant is unable to produce the necessary documentation, then you may may want to refer them to get advice about how they can sort this out. If you refuse them a tenancy you do not need to take any further action.
Guidance on checking documents
Any procedures you introduce must implement document checks fairly and without discrimination. Staff should approach people consistently regardless of nationality, appearance, etc. and have a consistent approach to checking documents, including those you know to be British or you think 'obviously' are. The code of guidance on avoiding discrimination in right to rent checks emphasises this. If in doubt, check our guidance on discrimination in housing.
- Do you set (in whole or in part) your own waiting list rules independent of the local authority? If so you are responsible for carrying out right to rent checks for those lettings.
- Do you receive written confirmation of each letting made through the local authority to prove that a right to rent check is not required (or if this applies to all your lettings do you have a written agreement to evidence this)?
- Are you considering withdrawing from a common waiting list or 100 per cent nomination agreement? If so, you need to develop new procedures to cover the right to rent.
- Have you made sure that staff are aware of the consequences of failure to conduct right to rent checks and of the consequences of discriminatory processes or procedures?
- Do you have the appropriate skills and equipment for checking documents? If not, consider what training and resources you need or whether you contract out your obligations to an agent.
- If you are contracting out your right to rent checks to an agent:
- Do you have a written agreement that refers to the Immigration Act 2014?
- How do you ensure your agent carries out the checks with due diligence but strictly within right to rent criteria only (to avoid unlawful discrimination)?
- Are you sure that your agent applies the right to rent rules only (and not any others such as or welfare benefit rules, which are different)? Or if they are conducting such checks, are they making sure that the tenant understands which rules are being applied?
- If you use the local authority, have you paid particular attention to these points (as the LA should not be applying the usual rules it uses such as having access ot public funds, etc.)?
- Make sure your own policy and procedures are strictly based on the right to rent only and not some other narrower criterion such as entitlement to welfare benefits or homelessness assistance. Ensure all members of staff receive appropriate training to avoid unlawful gate-keeping.
- What is your policy if an application is made by a person with a right to rent who is disqualified from housing benefit? (What if he/she is currently working?)
- Ensure you have an appropriate recording system in place that can:
- identify an exempt letting (e.g. through the local authority waiting list)
- identify if the occupier is a relevant national (and so has an automatic right to rent)
- identify if the occupier has an indefinite right to rent
- identify and flag occupiers with a time-limited or discretionary right to rent for a review
- identify and flag young people in a household approaching the age of 18.
- Revise your procedures and advice and guidance to tenants about taking in lodgers (leaflets, standard letters, etc). Provided the landlord has drawn tenants' attention to the legislation relating to lodgers and their need to make document checks, then any onus rests on the tenant. (Note that if you require tenants to get approval to take specific, named lodgers, you may well become responsible for the checks.)
- Ensure staff advising tenants give clear accurate advice and give them access to and instructions on how to use the housing rights website.