Right to Rent Immigration Checks: Landlords FAQs
In a previous post, we provided an overview guide to the ‘right to rent’ immigration check requirement which applies to all private landlords and tenants. If you are searching for answers to questions such as who has a right to rent, or when and how right to rent checks need to be conducted, you will be able to find them there. In this follow-up article, we consider some further commonly asked questions around the right to rent immigration check requirement.
What Is a Tenant’s ‘Only or Main Residence’ for the Purposes of Right to Rent Checks?
Under section 20 of the Immigration Act 2014, the right to rent requirement applies to ‘residential tenancy agreements’. Part of the definition of that term is that “one or more adults have the right to occupy the premises as their only or main residence (whether or not the premises may also be used for other purposes).”
A property will be considered a person’s only or main home if:
- it is the only property they live in; or
- they live between multiple properties, but their personal, legal or family ties to that property are such that it is where they live their settled day to day life
Although spending the majority of their time at the property may be a sign that it is the tenant’s main home, this is not necessarily required. For example, if the tenant is frequently away for long periods due to employment, the address to which they return is likely to be taken as their main home.
Other signs that a property is likely to be the tenant’s only or main home include if:
- they keep most of their belongings there
- their partner or children live with them there
- they’re registered to vote at the property
- they’re registered with the doctor or dentist using that address
In general therefore, it should be relatively clear whether a tenant is occupying a property as their only or main residence, but there may be some situations where the landlord must exercise their judgement. If in doubt, it may be worthwhile to call the government’s Landlord Helpline on 0300 790 6268.
What if a Tenant Does Not Have the Correct Right to Rent Documents?
In our previous post on the right to rent immigration check requirement, we set out the documents that a tenant can provide to prove their right to rent. Most often this will be a passport or current immigration document, but there may be reasons why these documents are not available.
If a tenant with a non-time-limited right to rent does not have or has lost a key document, then generally they should still be able to prove their right to rent by providing two of the documents from ‘List A Group 2’. This list is designed to cover a wide range of scenarios. For example, if the tenant has had a document stolen, then as one of their two documents they can provide a letter from a UK police force confirming that the theft has been reported. If the tenant has recently been released from prison, they can provide letters from HM Prisons and/or the Probation Services. A tenant who does not have identity documents because they have been sleeping rough, or have left home due to domestic violence, or have recently left care, may be able to provide letters from charitable organisations or local authorities.
In certain circumstances, the Home Office may hold the tenant’s documents due to an ongoing immigration application or appeal. In this scenario, the landlord should contact the Home Office using the Landlord Checking Service to verify that the tenant does indeed have a right to rent. This service should also be used where the tenant has provided a Certificate of Application showing they have applied to the EU Settlement Scheme, or certain documents issued by authorities in the Channel Islands.
If a tenant is not able to provide the correct documents, then the landlord should not allow them to rent their property. If they do so, they will be liable for a civil penalty, and will potentially also be committing a criminal offence.
Can I Employ Someone Else to Carry Out a Right to Rent Check?
Yes. Landlords are free to arrange for a lettings agent or other third party to carry out right to rent checks on their behalf, and can where appropriate use the services of an identity service provider.
That said, there is no obligation to do so – you are free to check the documents yourself, and only have to be satisfied that the documents you are checking seem genuine. You will only be liable for a civil penalty if it is reasonably apparent that the document is false.
Can I Check Right to Rent Documents Remotely?
In certain situations, landlords may be able to (and are sometimes required to) use the Home Office’s online checking service, or use an identity service provider. However, manual right to rent document checks must be done in person. Owing to the COVID-19 pandemic, landlords were temporarily allowed to check documents over video calls or by looking at scans sent electronically. However, as of 01 October 2022, this is no longer permitted.
Do I Have to Conduct a Right to Rent Check for Guests or Subtenants?
Generally, casual guests such as friends and family will not be living in the property as their only or main home, and so there is no requirement to carry out a right to rent check on them.
If it seems that a tenant has brought somebody into the property who is living there as their only or main home, and who is paying them rent, they will be considered a subtenant or licensee. In that situation, it is the tenant’s responsibility to carry out the appropriate checks.
I Am a Migrant Without Lawful Immigration Status: Can I Rent a Property?
If you do not have lawful immigration status, a landlord should in theory discover this during a right to rent check, and should not allow you to become a tenant.
It should be noted that it is not in itself a crime to rent a property without the right to do so. Though you may be committing an ongoing criminal offence if you have illegally entered the UK or have overstayed your permission to be in the country, you will not be committing a further offence by renting a property. Responsibility under the right to rent scheme lies with the landlord: so if a landlord has granted you a tenancy without checking your right to rent, the liability is theirs.
That said, if your landlord discovers mid-way through your tenancy that you are not allowed to rent due to your immigration status, they are required to report this to the Home Office, and may also take steps to end your tenancy.
Does a Landlord Have to End a Tenancy if the Tenant Does Not Have a Right to Rent?
If a landlord discovers midway through a tenancy that a tenant does not have a right to rent, or their existing right to rent has expired, they are required to make a report to the Home Office in order to maintain their statutory excuse against liability.
However, so long as they have done this, they are not required to end the tenancy.
On the other hand, if the landlord is minded to end the tenancy, there are methods by which they can do so. The Home Office may provide them with a Notice of Letting to a Disqualified Person (and a landlord can request one if not), after which the landlord may take steps to evict tenants or recover possession. If all tenants are named on the Notice of Letting to a Disqualified Person, the landlord can serve a Notice of Eviction and End of Tenancy, requiring the tenants to leave following a prescribed period of at least 28 days. If they do not do so, the landlord can apply for an eviction without requiring a possession order.
What if I Need Help in Relation to Right to Rent Checks?
If you are a landlord and need help carrying out a right to rent check, you can call the government’s Landlord Helpline on 0300 790 6268, which is reachable from Monday to Thursday between 9am and 4:45pm, and on Friday, between 9am and 4:30pm.
Contact our Immigration Barristers
Understanding the right to rent requirement is hugely important for both migrants and landlords. If you as a landlord do not carry out the proper checks, you may be subject to a civil penalty or even potentially charged with a criminal offence. If you as a migrant do not have a right to rent, you may be prevented from accessing rented accommodation.
If you are concerned that you do not have lawful permission to reside in the UK, you may wish to make an immigration application or pursue an appeal in order to regularise your status. Doing so will allow you to obtain a right to rent, as well as potentially other benefits, which might include a right to work or to access certain public services.
For expert advice and assistance in relation to any immigration matter, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.
