Author-Alexander Bellis; David Foster
This briefing paper provides an overview of Right to Rent checks which must be carried out by private landlords/agents in England. The checks were introduced by the Immigration Act 2014. Breaches may, in some circumstances, amount to a criminal offence after changes introduced by the Immigration Act 2016 on 1 December 2016. The checks are controversial and have been subject to legal challenge.
Why Right to Rent checks?
As part of Government attempts to cut down on illegal migration, the Immigration Act 2014 introduced a number of measures to restrict access to services for those without a valid right to remain in the UK. One of these measures was a requirement on private sector landlords to check that their tenants’ immigration status does not disqualify them from renting property (i.e. that they have a Right to Rent).
The Government has published a short guide on Right to Rent(updated in July 2019), along with a Right to Rent Code of Practiceand a code of practice for landlords on avoiding unlawful discrimination when conducting Right to Rent checks.
Under section 22 of the Immigration Act 2014, landlords “must not authorise an adult to occupy premises under a residential tenancy agreement if the adult is disqualified as a result of their immigration status.” The legislation does not apply to those under 18 or those not renting the property as their main home.
Adults are disqualified if they do not have unlimited or a time-limited right to remain in the UK, or if they have a right to remain but are barred from renting property as a condition of their immigration status.
In order to check a tenant’s immigration status, landlords need to view original immigration documents in the presence (or via live video link) of the applicant, make copies of the documents, and keep the copies for 12 months after the tenancy expires. Where a person has no time limit on their stay in the UK, checks may be undertaken at any point before the residential tenancy agreement is granted. However, where a person has a time-limited right to remain, the checks can take place no more than 28 days before the commencement of the tenancy agreement.
For applicants whose immigration documents are held by the Home Office and are therefore not available, the Home Office has created a Landlords’ Checking Service. This online tool will provide an answer to questions on an applicant’s Right to Rent. If no answer is received from the service within 48 hours, the landlord has a statutory excuse against liability for a penalty.
If a follow-up check indicates an occupier no longer has the Right to Rent, landlords are required to report this to the Home Office “as soon as reasonably practical.” The 2016 Act has strengthened the reporting responsibilities on landlords and made it easier for them to evict tenants without a Right to Rent.
If a landlord uses an agency to carry out Right to Rent checks a written agreement between the landlord and the agency needs to be drawn up, otherwise the landlord will remain responsible for any breaches and be liable for any associated penalties.
Scheme evaluation and impact
The Right to Rent scheme was initially implemented in five West Midlands council areas only from 1 December 2014. An evaluation of this first phase of implementation was published by the Government in October 2015, and at the same time it was announced that the scheme would be rolled out to the rest of England from 1 February 2016.
The policy has proved controversial, with concerns raised in a number of areas, including
- The additional burden that the scheme could place on landlords and letting agents.
- The potential that the scheme could incentivise landlords and letting agents to discriminate against certain groups of tenants, including migrants.
- That the policy could lead to a rise in homelessness among those who fail Right to Rent checks.
- That the scheme has not yet demonstrated its worth in encouraging immigration compliance, and that the Home Office has failed to effectively measure its use.
Challenge in the High Court
In June 2018, the High Court gave permission to the Joint Council for the Welfare of Immigrants to proceed with a legal challenge against the Right to Rent policy on the basis that it is discriminatory.
Following a hearing in December 2018, the High Court’s judgment was handed down on 1 March 2019. The High Court held that the Right to Rent Scheme is incompatible with Articles 8 and Article 14 of the European Convention of Human Rights concerning racial discrimination. The Home Office has launched an appeal and advisedthat, in the meantime, the provisions remain in force. The Residential Landlords Association has called for the scheme to be scrapped.
Extension to Scotland, Wales and Northern Ireland
The checks are currently only mandatory in England. Powers to extend the checks were included in the 2016 Act but the devolved nations are not generally supportive of an extension. The High Court judgment handed down on 1 March 2019 states that any further roll-out of the Right to Rent should not take place without significant review and revision.