The right to rent stems from a person’s right to live in the UK. It follows from a person’s immigration status – if they do not have the right to live in the UK then they do not have the right to rent a property in the UK either.
Landlords renting out private rented accommodation, taking in a lodger or sub-letting a property or part of a property, are liable to make the right to rent checks, i.e. check that a prospective tenant has the right to live in the UK.
The obligation on landlords (or their agents) to check the immigration status of a prospective renter currently applies in England only, i.e. not Scotland, Wales and Northern Ireland. The requirement was introduced on 1st February 2016 (Birmingham and its locality was a test area so the scheme began earlier, on 1st December 2014). Landlords do not have to make right to rent checks in respect of tenancies that began before those dates.
Even when there is no written tenancy agreement, only an oral or implied one, it is mandatory to make the checks.
It is, of course, possible for a letting or managing agent to make the right to rent checks on behalf of a landlord. However, you should make sure that you have a written agreement in place with your agent specifically covering this obligation.
Right to rent landlord requirements
- check the right to rent of all tenants, regardless of their perceived nationality;
- check every person over the age of 18 who is going to live in the property as their only or main home, regardless of whether they are named in the tenancy agreement;
- make ‘reasonable enquiries’ as to the number and identities of adult occupiers who will be living at the property;
- satisfy themselves that any children who are going to live in the property will be under the age of 18 when the tenancy starts;
- meet the adult occupiers in person and view original documents;
- take ‘reasonable steps’ to verify that the document is genuine and the person is the rightful holder;
- keep dated evidence of having checked the documents of all adult occupiers prior to the beginning of the tenancy;
- contact the Home Office and ask it to carry out a right to rent check where the person has an application or an appeal outstanding with the Home Office or the Home Office is holding the person’s original documents, or the person has ‘permission to rent’;
- carry out a follow up check on a person whose right to live in the UK is time-limited when that right expires; and
- if the person no longer has the right to live in the UK then report them to the Home Office using the online form.
You should assume that your tenant is going to use the property as their only or main home, unless the prospective tenant informs you otherwise. In making ‘reasonable enquiries’ as to the number of adult occupiers who will be living at the property, you are expected to ask more searching questions where necessary. For example, if only one tenant is proposing to rent a four-bedroom house from you, you should make further enquiries.
In a case where the Home Office discovers that no-one living in your property has the right to rent, it may issue a Notice of Letting to a Disqualified Person. This requires you to give 28 days’ notice of their eviction. If they do not leave by the end of the four-week period then you have the right to re-enter the property and change the locks.
In a case where only some of the occupiers do not have the right to rent, you have to use the section 21 notice eviction procedure (where the fixed term of the AST has already expired) or go to court for an eviction order. It is worth negotiating with the occupiers first, to see if those without the right to rent will leave if the others with the right to remain are allowed to stay on.
The most obvious advice is to keep copies of the documents that the occupiers provide proving they have the right to rent, and a careful record of the date when you carried out the check.
The Home Office has issued the following specifications regarding these documents:
- copies should be a paper copy or a scanned and unalterable electronic copy;
- they should be legible;
- it should be possible to see clearly any dates, personal details and photographs;
- your record of when you carried out the check should be either a dated declaration written on the copy of the document(s) provided, or your own separate record; and
- the copies should be stored securely for the duration of the tenancy, and for another twelve months after it ends. The copies must then be destroyed, again in a secure fashion.
Right to rent acceptable documents
There are two types of documents – List A documents and List B documents. List A documents show that the person has the right to rent, i.e. the right to stay in the UK, indefinitely. List B documents show that the person has the right to rent, i.e. the right to stay in the UK, for a limited period of time.
List A documents include a passport or identity card. For British, EEA and Swiss citizens, this will be enough to prove their right to remain in the UK indefinitely.
If a British person does not have a passport, then they can show two documents from ‘Group 2’ of List A. For example, a UK driving licence and a UK birth certificate.
All other nationalities (apart from B5JSSK nationals discussed below) will have to show their passport containing a valid visa, or a biometric residence permit (BRP) issued by the Home Office.
Landlords should note that the immigration system is changing from 1 January 2021 when the UK formally leaves the EU. Citizens of the EEA will be subject to the new immigration rules that currently apply to nationals from the rest of the world. EEA citizens who are already resident in the UK can apply for settled status, but in the meantime EEA passports and ID cards will remain acceptable proof of their immigration status until 30 June 2021.
How will I know if a document is genuine?
The Home Office expects you to take ‘reasonable steps’ to verify that the document provided by a prospective tenant is genuine, but you are not expected to be an expert on immigration. The Home Office recognises that people who present false documents set out to deceive and will do so with convincing papers.
However, you are supposed to apply common sense and be diligent in your examination of the documents submitted to you. Examples of indicators that you would be expected to pick up and question include:
- unrealistic dates of birth;
- photographs that do not look like the potential occupant;
- evidence that someone has attempted to alter the document; and
- inconsistencies between documents. This means that if more than one document is supplied you must cross reference the names, dates of birth and photographs between the documents.
How to avoid allegations of discrimination
The law states that in England every landlord must apply these checks, with no exceptions. Therefore, you should be consistent in your approach and check all prospective tenants without fail, regardless of their accent, appearance or other personal details of which you are aware. If you make your checks selectively you will almost certainly be committing an act of discrimination.
Special rules for landlords of individuals from Australia, Canada, Japan, New Zealand, Singapore, South Korea and the USA (known as B5JSSK nationals)
There is a special dispensation for landlords of properties rented out to nationals of these countries. You should make sure you see the original passport of nationals from these countries, and keep a copy of it as outlined above.
You are also required to ask for evidence of the date the person entered the UK, as this will most likely not be evidenced in their passport. Such evidence includes an original or copy of a boarding pass or other travel document showing the arrival date in the UK. You then have a twelve month period from that date during which time you are not liable for a civil penalty (see below). However, you must schedule a follow-up check before the end of the twelve month period if the individual is still in occupation at the property.
Penalties for non-compliance
A landlord who fails to make the correct right to rent checks and is discovered to have rented accommodation to someone who does not have the right to rent will be liable to a civil penalty.
Where the Home Office suspects the landlord failed to carry out their obligations under the right to rent scheme, it will send an Information Notice to the landlord. This is an opportunity for the landlord to explain themselves. The Home Office will consider this and either issue a Civil Penalty Notice or a No Action Notice, along with an explanation of the decision.
A Civil Penalty Notice can be ‘objected’ to under the scheme or appealed directly in the County Court.
A Civil Penalty Notice will be issued for each illegal occupant housed at the property and could be several thousand pounds per occupant.
Non-compliance with the right to rent checks is also a criminal offence that can lead to up to five years in prison and an unlimited fine. However, this should only be relevant for people who are intentionally breaking the law and have done so on several occasions.
Please contact us if you have any queries relating to your duties to check a prospective tenant’s right to rent in the UK.
Right to rent FAQs
Can non-UK nationals rent property in UK?
Foreign nationals have the right to rent property in the UK as long as they are living in the UK legally. This means they must have the correct identification and immigration documents to prove that they are living in the UK legally. However, landlords should be sure to check the right to rent of all their prospective tenants, regardless of whether they seem ‘foreign’ or not, in order not to breach discrimination laws.
What are right to rent documents?
Right to rent documents are documents that prove that you are in the UK legally and therefore have the right to rent a property in the UK. You are obliged to show a relevant document to your prospective landlord before your tenancy starts. The document, for example a passport or identity card, must show that you have the right to live in the UK under UK immigration law. If you do not have the right to live in the UK then you do not have the right to rent in the UK.
What must a landlord provide by law UK?
Landlords in England are legally obliged to check the immigration status of people who wish to rent property from them. These checks are known as ‘right to rent’ checks. Once the landlord has met the prospective occupiers in person and seen the correct documents for them, they are obliged to take a copy of the document and keep it on file along with the date the check was carried out. Landlords are not allowed to keep original documents.
What does right to rent mean?
The right to rent is basically the same as the right to live in the UK. Under UK immigration law, if a person does not have the right to live in the UK then they do not have the right to rent a property in the UK either. A person can prove that they have the right to rent in the UK by showing their passport, identity card or biometric residence permit.
Last updated: 7 June 2020