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'Right to rent' checks - what are they?

Since February 2016, private landlords in England (but not Wales) have been required to check the documentation of new tenants and other adult occupants, to establish if they have a ‘right to rent’ under the housing provisions in the Immigration Act 2014.

The scheme was amended by the Immigration Act 2016 to make leasing premises to someone with no right to rent a criminal offence by the landlord (sections 33A-C of the 2014 Act) and to change the law on security of tenure to make it easier for landlords to evict some occupants when the Home Office inform them they no longer have the right to rent (section 33D of the 2014 Act).  These rights to evict apply to all assured and assured shorthold tenancies (except those excluded from the 2014 provisions) and even to tenancies granted under the Rent Act 1977.

Further changes took effect on November 2, 2020 with the Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) (Amendment) Order 2020, which provided additional ways of making document checks.

Which lettings are affected?

The 2014 rules affect all new tenancies, licences, sub-lets, lodging arrangements and leases of under seven years, made on or after 1 February 2016 in England, except for the exclusions set out below. Renewals of previously existing agreements are not affected. The arrangements apply to all residential lettings where a charge is made for occupation, unless excluded. A tenancy would normally be in writing, but tenancies from just verbal agreements or which have been created simply by accepting rent are included. In practice, this means that the right to rent provisions apply to all private sector residential tenancy agreements.

Which lettings are excluded?

• Housing provided by local authorities and housing associations through homelessness or allocations procedures. This refers to any person having a right of occupation in what the Immigration Act unhelpfully calls ‘social housing’, which covers accommodation let by local housing authorities (under secure, introductory or non-secure tenancies or licences) and accommodation let by housing associations or private landlords (including private registered providers) following nomination by a local housing authority through its allocation scheme or under homelessness duties. But if a local authority simply advises a person to apply direct to a landlord, or if a landlord (private or housing association) lets via its own waiting list, allocation scheme or arrangement then that letting is not excluded and checks are required. Lodgers taken in by LA or HA tenants are also not excluded.

• Care homes, hospitals, hospices and other healthcare provision: this includes any accommodation provided by the NHS to discharge a duty they have towards the occupier, so this might cover a hostel for a person recovering from illness, but it would not cover nurses’ accommodation.

• Hostels and refuges. A hostel is defined as a place offering non-self-contained accommodation and board (or provision for food preparation) that is either run on a not-for-profit basis and funded at least partly by a government or a local authority, or run by a housing association, voluntary organisation or charity. Examples include bail hostels, night shelters or similar. A refuge does not have to be non-self-contained, should be run on the same basis as a hostel, and be for people fleeing violence or abuse. 

• Local authority provision for the homeless. Accommodation let by a private landlord but arranged by a local housing authority in performance of any duties or powers to applicants for homelessness assistance (Part 7 of the Housing Act 1996).

• Accommodation arranged by a local authority in performance of its statutory duties or powers. The accommodation may be provided by a private landlord or housing association, such as accommodation arranged under the Children Act 1989 duties or Care Act 2014 duties

• Home Office accommodation for migrants.  The Home Office provides accommodation for people claiming asylum and certain other migrants, via contracted suppliers.

• Mobile homes as defined by Mobile Homes Act 1983.

• Tied accommodation provided by an employer to an employee or trainee.

• Student accommodation where this is in a hall of residence, a home provided via a nomination by an educational institution or in a building used mainly for student accommodation and managed by an educational institution or similar or a charity. (Note therefore that student accommodation in the private rented sector is included in the scheme and checks are required.)

• Leases for terms of seven years or more.

• Non-residential lettings, for example holiday accommodation: the Home Office guidance suggests that any letting for three months or more would not be considered holiday accommodation.

Which occupants must have a right to rent?

All adults, including

• Those liable to pay rent or occupation charges.
• Anyone else authorised to live in the accommodation by the agreement.
• Anyone else living in the accommodation even if not named in the agreement, if the agreement allows it. So this would cover, for example, a partner or friend who moved in after the agreement (although the landlord will not have committed a criminal offence if they can prove that ‘reasonable enquiries’ were made about who would be living in the home before the person moved in and so s/he did not know that the person without a right to rent was going to be in occupation).

How does it work?

Before allowing anyone to move in, the landlord must:

• check that prospective tenants and adult occupiers have the right to rent either by seeing documents are using the online checking service (see below)
• ask for proof of this
• make copies which must be kept for at least 12 months after the tenancy ends.

The landlord should also ask for proof of age if he suspects that any occupier is in fact over 18 but has said that s/he is younger. 

The document check is intended to establish that they are in one of these groups:

• A ‘relevant national’ (Immigration Act 2014, s21(1),(5) as amended by SI 2020/1309 reg 20(2)(b)): this means a British citizen, an Irish citizen or an EEA national (or EEA family member) but only if s/he has EU settled status or pre-settled status. A person who is a ‘relevant national’ does not need a ‘right to rent’ to be granted a tenancy, but landlords will need proof that the occupant is in this group.

• A person with a right to rent, as follows:
• A person with an indefinite right to rent: someone with indefinite leave to remain or right of abode in the UK.

• A person with a ‘time-limited right to rent’: someone who has limited leave to remain in the UK (or, until 30 June 2021, an EEA national/EEA family member who entered the UK using their EU free movement rights but who has not applied to the EU settlement scheme (SI 2021/1209, regs 3, 12(1)(n)). 

• A person with a ‘discretionary right to rent’: this is a get out clause. The Home Secretary can grant a ‘discretionary right to rent’, likely to be used for people who have no current leave but cannot be removed from the UK, or those who are waiting for a Home Office decision on their immigration status. The person will have to apply for it.  

Anyone else should not be offered the accommodation. EEA nationals and EEA family members who enter the UK on or after 1 January 2021 must have a right to rent in the same way as any other foreign national who is from outside the EU. Any EEA national/EEA family member who entered the UK using their free movement rights before 1 January 2021 but who fails to apply to the EU settlement scheme by 30 June 2021 will lose their right to rent and will need ‘leave’ or a discretionary right to rent to get a tenancy on or after 1 July 2021.

Long-term residents of the UK

The Home Office issued guidance in April 2019 in the wake of revelations about the problems faced by the ‘Windrush generation’. The guidance refers to ‘undocumented Commonwealth citizens’ or ‘Commonwealth citizens (known as "Windrush" cases) who are long-term residents of the UK but do not have documents to demonstrate their status.’ It states: 

However it then asks landlords to use the checking service if they are concerned. The implication is that those covered by the rather vague definition of long-term Commonwealth residents do not need the documents otherwise required by the scheme.

People whose right to rent is time-limited

For those with a time-limited right to rent, landlords must make new checks after a year, or (if it is longer) just before the current period of leave in the UK or relevant document expires.  If the landlord finds out – either from those new document checks or in any other way or has reasonable cause to believe – that the occupier has no current leave or right to live in the UK he or she must report it immediately to the Home Office. If the landlord fails to report to the Home Office, then they will be committing a criminal offence. The landlord should also be taking reasonable steps to terminate the tenancy and evict the occupiers. If they fail to do so, then they may be committing a separate criminal offence. 

How do landlords check residency and immigration status?

The ways in which checks are made changed temporarily during the coronavirus pandmic, but from May 17 2021 checks have to be done as before. There is government guidance here.

Tools to help with right to rent checks

There are various tools and guidance to help landlords do the checks:

• The Home Office Landlords' Guide to Right to Rent Checks was updated in November 2020.
• The Home Office has a question-and-answer checking service which asks about the status and documentation that the prospective tenant has, and landlords can enter ‘yes’ and ‘no’ replies.
• There is guidance (with pictures) on the main types of documentation that prospective tenants might have, to show their status. There is also guidance on examining identity documents (pdf), including detecting forgeries, but this dates from 2016 and landlords should be cautious about using it as doing so may undermine their statutory excuse if a document proves to be forged.
• If someone has documents lodged with the Home Office, awaiting decisions, a right to rent check can be requested online, providing the prospective tenant agrees and they have their Home Office reference number.
• Certain tenants can opt to prove their right to rent online, or their landlord can do it with their permission, if they have:
  
  • a biometric residence card or permit
  • settled or pre-settled status under the EU Settlement Scheme
  • applied for a visa and used the ‘UK Immigration: ID Check’ app to scan their identity document on their phone
• There is also a landlords’ code of practice on avoiding discrimination (pdf) which makes it clear that landlords are expected to check all prospective occupiers, except immediate members of their own family where they have no doubts about their immigration status. 
• The Home Office advice line (0300 069 9799, due to change to 0300 790 6268) is no longer publicised but is operational.
• JCWI has published a toolkit for tenants and advisers.

Landlords can appoint an agent to do the checks for them but must do this by a written agreement that specifically covers the Immigration Act 2014.  Where the landlord has contracted an agent then the agent is liable for any breach, except where the agent notified the landlord that a prospective occupier did not have the right to rent but the landlord allowed them to move in anyway.

What about lodgers?

The scheme covers all lodgers who pay rent, regardless of whether the person they lodge with is in one of the exempt categories such as being a council tenant. A lodger is defined as someone who takes a room within a home that they share with their ‘landlord’ (who could be the owner or tenant of the property). Lodgers who pay money to live in a property as their only or main home fall within the scheme.

Responsibility for checking if a lodger has the right to rent rests with the tenant who provides the sub-tenancy or takes in a lodger. However, landlords (including social landlords) are advised to ensure that tenants are aware of these requirements as many are likely to be unaware of them and may breach the law by accident.

What happens if things go wrong?

The scheme provides that landlords can be required to pay civil penalties and may also face prosecution. Sentences for criminal offences committed by landlords under this scheme can be fines or imprisonment or both.The civil penalties are set out on a sliding scale:

• The first breach (in the previous three years) incurs a fine of £80 for a lodger, £1,000 for a rented occupier. These are per person, so renting to a family of four adults would attract a first time penalty of £4,000.
• Further breaches incur fines of £500 per lodger and £3,000 per rented occupier.
• From 1 December 2016 landlords who have leased premises to a person with no ‘right to rent’ may also be subject to criminal proceedings and face a prison sentence of up to five years.

For the civil penalty process, the Home Office first issues a referral notice about the property and occupants, then an information request, which the landlord or agent can respond to, and finally the penalty notice, after which the landlord has 28 days to object to the penalty. Possible objections include: disputed liability (for example, the landlord does not own the property or the agent is liable), or a ‘statutory excuse’ (for example, the landlord can prove the checks were carried out or that the penalty is for the wrong amount).  The landlord can get a discount of 30% on the first offence by paying the penalty within 21 days or can challenge the penalty in court. 

For the criminal process, initially landlords do not commit an offence:

• if the occupancy commenced before the checks were introduced or
• if they have conducted the relevant checks before the occupancy commenced and the occupant is either
  • a person with an indefinite right to rent, or
  • a person with a time-limited right to rent or a discretionary right to rent and still within the eligible period.

A landlord will commit a criminal offence if:

• Any one of the adults occupying the premises does not have the right to rent and the landlord either knows that they do not have the right to rent or has reasonable cause to believe that they do not have the right, unless the landlord can show that they had taken reasonable steps, within a reasonable period from when they knew or had reasonable cause to believe that the premises were occupied by an adult without the right to rent, to terminate the agreement.
• After the occupation began, any one of the adults loses the right to rent and the landlord either knows that is the case, or has reasonable cause to believe that is the case, unless one of the following applies:
  • the landlord has notified the Home Office of the contravention; or
  • the contravention was the responsibility of the landlord’s agent; or
  • the adult has not yet lost the right to rent (but the Home Office had served a notice on the landlord anticipating that the right to rent would be lost).

These criminal offences can also be committed by landlords’ agents. 

Guidance has been issued as to what these reasonable times and reasonable steps are. The guidance suggests that landlords:

• seek a mutual agreement with the tenant to end the tenancy and do this within four weeks
• see if the disqualified occupant can assign the tenancy to any other occupants who are not disqualified (and get rid of the disqualified occupiers) and do this within four weeks
• use a break clause in the tenancy or other provisions to bring the tenancy to an end and evict within three months
• if all of the occupants have no right to rent, use the provisions in the Immigration Act 2016 to end the tenancy, wait for the notice period to expire and then evict 'peacefully' within 14 days, by applying to the High Court for a High Court enforcement officer to carry out the eviction, or  
• if not all of the occupants are disqualified, serve the relevant notice and bring court proceedings for a possession order.

Advising migrants who might be affected by right to rent checks

The guide to checking documents has two lists:

• List A: proves the holder is a ‘relevant national’ or person with an ‘indefinite right to rent’: group 1: proved by a single document, group 2 for documents that will be acceptable if any two of them are produced.
• List B: proves the holder has a ‘time limited right to rent’ or a ‘discretionary right to rent’. These documents may have to be checked again during the tenancy.

It is important to ensure that migrants looking for private lettings have these documents available relating to themselves and any adult family member, before applying for a tenancy. If the document is not a simple passport or otherwise obviously gives a right to rent, it might be helpful to know in advance which of the documents in the guide it is, so this can be pointed out to the landlord.

Being aware of potential discrimination

Despite the code, right to rent checks have been shown to increase discrimination against migrants trying to access rented housing, so advisers should:

• Ensure they have the relevant knowledge to advise on tackling discrimination.
• Consider how they might prove that discrimination has taken place (for example sending another, non-migrant ‘tenant’ to apply for the same flat or phoning to find out if it is still vacant if the migrant has been told it has gone: this is called situational testing and is acceptable evidence in discrimination cases).

Be ready to open up discussions with the local authority about how they should tackle discrimination in this area and also plan for the likely increase in homeless applications or requests for help from social services from eligible migrants who can no longer get accommodation in the private rented sector as they did before.

Advising tenants who are affected by the Immigration Act 2016 tenancy changes

The Immigration Act 2016 introduced new ways of evicting tenants and new grounds for eviction by the courts; they came into effect on 1 December 2016.  They apply to all assured, assured shorthold and Rent Act tenancies and all licences in England where payment is made for the accommodation, except those excluded by the Immigration Act 2014 (such as those provided via local authority nomination).

These types of eviction apply only in situations where the Home Office has sent the landlord a notification that the occupier/s are ‘disqualified’ from renting because of their immigration status. The provisions as drafted seem to apply whether or not there are children living in the property. In parliament, during the debate on the Bill which became the Immigration Act 2016, the Minister for Immigration said that the Home Office will consider the circumstances of each member of the family before serving a notice, and will have regard to its duty to safeguard and promote the rights of children. 

Eviction without a court order

If a landlord receives a notification from the Home Office that all the people occupying the premises are now disqualified (and there are no children in the household/s) then s/he can use the procedure introduced by the 2016 Act and the accompanying regulations that came into force on 1st December 2016. If the landlord fails to do this within a reasonable time (see above) then he may commit a criminal offence. The procedure is: 

• The landlord serves notice on the occupants in the prescribed form laid out in the regulations
• The landlord must attach the notification/s received from the Home Office about the disqualification of all of the occupants.
• The notice must allow at least 28 days before the agreement ends.
• If the occupants dispute the disqualification, they must inform the Home Office of this within the 28 days to allow the Home Office to withdraw the notification.  It is not clear what happens then. 
• At the end of the notice period, the tenancy or licence has ended and there is no requirement for a court order to evict
• The landlord may enter the premises and ‘peaceably’ remove the occupants or can ask for High Court bailiffs to do the eviction. This because these circumstances are excluded from the normal requirement to obtain a possession order (s.3A(7D) Protection from Eviction Act 1977).

Eviction with a court order

If the landlord receives a notification from the Home Office that one or some but not all occupants are now disqualified s/he cannot use the procedure to evict without a court order.  They must still act, however, within a reasonable time, or face possible criminal proceedings.  If s/he cannot negotiate for the disqualified occupants to leave (and inform the Home Office that they has done so) then s/he can use the new grounds for eviction created by the 2016 Act (Ground 7B in HA 1988 Sch 2 Pt 1 ('Grounds on which court must order possession') ).

The procedure for eviction with a court order is:

• The landlord serves notice on the tenant/s or licencee/s in the prescribed form for the tenancy and with the relevant notice periods.
• The notice must explain that possession is sought using Ground 7B for assured and assured shorthold tenancies. In fact the regulations on the prescribed forms of notice for all tenancies now include this new ground.
• If Ground 7B is the only ground for eviction, the prescribed period of notice is two weeks, after which the landlord can start court proceedings to evict.
• The court will need to satisfy itself that the ground for eviction is made, so will presumably need to see the relevant notifications from the Home Office. 
• If the court is satisfied that the grounds for eviction are made this is a ‘mandatory’ ground and so eviction must be ordered but if
  • the tenancy/licence is a joint one and at least one of the tenants/licensees is not disqualified and is qualified
  • the eviction is sought only on Ground 7B

then the court may instead order that the tenancy be transferred to the qualified tenants or licensees (s.10A Housing Act 1988 as amended by Immigration Act 2016). There is no equivalent provision in the Rent Act 1977 for the court to order a transfer. The rules for this are all in section 41 of the Immigration Act 2016, which amends the Housing Act 1988. 

So if there are no qualified occupants to whom the tenancy can be passed, Ground 7B is mandatory.  But if there are other joint tenants or licensees who could take over the agreement then the court has discretion to order a transfer of the tenancy. The court must exercise this power reasonably.

The same process applies if the landlord is claiming possession under the new Case 10A Rent Act 1977. However, there is no obligation on the landlord to have served a notice first, there is no power available for the court to order transfer of the tenancy and the court will be required to consider whether it is reasonable to make an order for possession.

In addition, for assured shorthold tenancies, the landlord could serve a s.21 notice and start court proceedings once that notice has expired. However, the landlord would need to be careful as the two month period might not be considered to be a ‘reasonable period’ so as to prevent the landlord from having committed a criminal offence. If the s.21 procedure is used, there is no power available to the court to transfer the tenancy. 

What can advisers do for tenants threatened with eviction because of their immigration status?

These advice pointers are based entirely on the available legislation, guidance, etc.  We welcome suggestions based on practice as it evolves!

• Check that the tenant or other occupant is actually affected, i.e. is a disqualified person.
• Consider whether the tenant needs immigration advice, in which case it will need to come from a regulated adviser.
• Check who else is living with the tenant: are there any children, or any adults who are not disqualified. If so, the only option for the landlord is to use the court eviction procedure.
• If the landlord is using the no notice procedure and there are no ‘qualified’ occupants or children in the household, check the notice is in the prescribed form, includes the notification from the Home Office and that all occupants are correctly identified in the notification. 
• Work out with the tenant what s/he wants  If s/he is disqualified s/he may want to ask for a discretionary right to rent (and get advice on this) or may prefer to arrange to leave the home.
• If the tenancy is an assured or assured shorthold tenancy, and the notice is not in the prescribed form or has no notification attached, this is probably an illegal eviction attempt and should be treated as such.  Help can be sought from the local authority. 
• Are the facts in the Home Office notification correct? If not then the occupant can tell the Home Office this and ask for the notification to be withdrawn. If the Home Office fail to respond the applicant needs urgent legal advice to start judicial review proceedings since there appears to be no other remedy. The judicial review claim would be brought against the Home Office, no later than three months from the date of the notification. If the landlord were intent on eviction in any event, then urgent legal advice should be sought as to whether an injunction could be obtained against the landlord. 
• If there are children in the household, discuss with the tenant the options for seeking help from social services or any other options. In addition, make representations to the Home Office that the notification was served without proper consideration of the duty at s.55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children who are in the UK.
• If any adult in the household will be eligible for homelessness assistance, assist him or her to make an application for it.
• If there are other tenants/licensees who are not disqualified then consider whether they can take over the tenancy agreement.  If so, explain this to the landlord and negotiate it, since this will avoid court costs for all parties
• If the landlord refuses to transfer the tenancy agreement and issues proceedings relying on Ground 7B, then arrange for court representation or help to argue for the tenancy to be transferred by the court. 
• If the landlord is using the court eviction process but the tenant says that the notification from the Home Office is wrong (and has not been put right), then name the Home Office as an interested party in the county court eviction proceedings and present the evidence as to why the notification is wrong there.