All private landlords in England are now legally required to check that new tenants are lawfully resident in the UK before renting the property to them. This ‘right to rent’ scheme is estimated to effect 1.8 million landlords and 2.6million tenants.
The law applies to any residential tenancy agreement entered into on or after the 1stFebruary 2016, whether the contract is written or verbal and includes landlords who sublet or take in lodgers.If a landlord appoints an agent in writing then the agent will take on all responsibility of the checks and liability for breach.
A landlord can receive a civil penalty of up to £3000 for each tenant that resides in his property without the right to rent. The landlord has 28 days from the date of receiving the notice to object to the penalty. The landlord will have a defence if he can demonstrate that a satisfactory right to rent check was undertaken.
How to conduct a right to rent check?
The Home Office has issued guidance on how to carry out the checks in a manner which is not discriminatory.
- A check must be conducted before the tenancy commences and up to 28 days prior to its commencement.
- The check must be done in the presence of the tenant either in person or via a video link.
- The check must be made on all adults living in the property and not just those named on the tenancy agreement.
- Home Office guidance sets out which documents can be relied upon for the check. The most straightforward way would be for the landlord to examine and retain a certified copy of the passport and any immigration endorsement that can confirm that the tenant:
- Is British, EEA or a Swiss National, or
- otherwise has the ‘right to rent’ with either an indefinite leave to remain, or limited leave to remain within a particular immigration category
- The landlord must check that the document appears genuine, including the photograph and date of birth to ensure that it reflects the appearance of the tenant.
- The landlord has an ongoing obligation to conduct a follow up check on tenants with a limited immigration status within 12 months or before the relevant visa expires, whichever is the later.
- Where the tenant is a migrant with a pending application, the landlord would need to obtain a ‘positiveverification notice’ from the Landlord Checking Service at the Home Office to establish a defence.
Should documents be retained?
A copy of the documents must be retained throughout the tenancy and for 12 months thereafter.
A landlord must notify the Home Office if he discovers that a tenant no longer has a right to rent to avoid a civil penalty being imposed. The landlord is not obliged to take steps to take possession of the property.