Changes were made to Right to Rent when the UK formally left the EU.
Right to Rent is a government scheme which makes landlords responsible for checking their tenant has a legal right to rent in this country.
Here’s a rundown of the Right to Rent rules landlords and letting agents have to adhere to, as well as the post-Brexit changes.
What is Right to Rent?
Right to Rent is a set of rules which puts the onus on landlords to check their tenant (or lodger) has the legal right to rent in the UK.
It was introduced in England by the Government as part of The Immigration Act 2014 to clamp down on illegal migrants.
When did it start?
Right to Rent applies to all tenancies that started on or after 1 February 2016.
How do I know if I’m officially a ‘landlord’?
In the Government’s own words, a landlord is someone who, 'lets accommodation for use by one or more adults as their only or main home'.
If you take in lodgers, sublet an existing rental property or even act on behalf of a landlord, this means you too.
What if I use a lettings agent?
If you use a lettings agent to let your property, Right to Rent checks will be their responsibility.
However, this must be agreed with the agent in writing or you could still be held responsible.
What type of tenants should I check?
Any and every potential tenant aged over 18, regardless of whether they are British and even if they are not named in the tenancy agreement.
All tenancy agreements are affected, not just Assured Shorthold Tenancy agreements (ASTs).
Who has the right to rent?
There are two groups of people that have the right to rent in the UK; those with unlimited right to rent and those with a time-limited right to rent.
Here’s the difference.
Unlimited Right to Rent
This group includes British citizens, people who have the right of abode in the UK and those who have been granted indefinite leave to remain, or have no time limit on their stay in the UK.
Since Brexit, it longer applies to EU, EEA (European Economic Area) nationals or Swiss nationals.
Time-limited Right to Rent
Anyone who falls outside the above categories will have a time-limited right to rent (so long as they also have valid leave to enter or remain in the UK for a limited period of time).
Time-limited right to renters also include people that are permitted to enter or remain in the UK as a result of Acts of Parliament, European Union Treaties and Immigration Regulation.
Who does not have the right to rent?
In short, anyone seeking residential accommodation who requires permission to be in the UK – but does not have it.
If you find the potential tenant does not have the Right to Rent, you must not offer them accommodation.
How have things changed since Brexit?
Since 1 July 2021, EU, EEA nationals and Swiss nationals no longer have unlimited Right to Rent.
As a result, landlords must check their Right to Rent as set out below.
Do landlords have to make a retrospective check if they rent a property to EU, EEA nationals and Swiss nationals?
There is no need to make a retrospective check if your tenants are EU, EEA nationals and Swiss nationals and entered into a tenancy agreement on or before 30 June 2021.
How do landlords or agents make a Right to Rent check?
There are two types of Right to Rent checks that a landlord or letting agent can make: an online check or a manual document check.
The type of check you carry out will depend on how the tenant was granted their immigration status and, in some case, their preference.
Online Right to Rent check:
Landlords and agents can use the government's online checking service to view a tenant’s immigration status.
They can use this service if the tenant has a valid biometric residence card or permit (BRC/P), has settled or pre-settled status under the EU Settlement Scheme (EUSS), or they have an eVisa.
To use the service, you (the landlord) will need your tenant’s date of birth and their ‘share code’.
The online checking service is free and you will not need to check physical documents if you use it.
But landlords, or their agents, must carry out the checks themselves, they cannot rely on views or copies carried out by the tenant.
Manual Right to Rent check
The landlord must gather original supporting documents from the tenant to verify their identity and their right to rent in the UK.
Documents could include a passport or driving licence and birth certificate – and/or, if the tenant is time-limited, a residence card, visa and/or immigration status.
Find more details about the documents for a Right to Rent check, as well as a printable checklist, on GOV.UK.
The landlord will need to check all documents are valid in the presence of the tenant.
Record the date you made the check and keep all copies of the documents for at least 12 months after the tenancy ends.
What if the tenant has an ongoing immigration application or appeal?
If the tenant has an ongoing immigration application or appeal, the Home Office will run a free Right to Rent check on the landlord's behalf.
If the tenant is categorised as time-limited, the landlord will need to make follow-up checks before either:
the tenant’s permission to stay in the UK expires
12 months has passed since your previous check
If your follow-up check reveals your tenant no longer has the right to rent, you must report it on GOV.UK.
What if my tenant submitted an application to the EUSS before 30 June 2021 but has not yet received a decision?
Under these circumstances, EU, EEA and Swiss citizens and their family members can continue to live in the UK and have a Right to Rent until their application is finally determined, including any appeals.
To verify their application, landlords or their agents must request a Right to Rent check from the Home Office Landlord Checking Service, using the online form ‘request a Home Office right to rent check’.
If the tenant has received their Certificate of Application digitally, landlords can use the Home Office online service to check their Right to Rent.
When does the Right to Rent check need to be made?
The landlord will have to conduct the Right to Rent check within 28 days before the start of a new tenancy.
But if it’s being arranged from overseas, they'll need to carry out the documents before the tenant moves in.
What happens if a landlord ignores Right to Rent rules?
If a landlord is found to be letting their property to someone who does not have the right to rent in the UK – and they are unable to show you carried out the correct checks – the landlord could be fined up to £3,000.
Are there any exemptions to Right to Rent?
The Right to Rent rules only apply to private landlords.
Local authority social housing, care homes, hospitals and hospices for example, are all exempt. Student accommodation and temporary holiday lets also fall outside of the rules.
However, the government recommends that if your property is being let for three months or longer, this could indicate it’s being used as a main residence, so checks should be carried out regardless.
I thought Right to rent checks had been declared discriminatory?
While the High Court did rule that the Right to Rent scheme breached the Human Rights Act, the Court of Appeal ruled that the scheme was lawful and did not breach human rights.
Permission to appeal this ruling was denied.
That said, the government has published statutory code of practice detailing how to avoid unlawful discrimination when conducting Right to Rent checks.
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