Before letting a property in England, all landlords are required by law to carry out certain checks to ensure that their tenants have a legal right to rent. On 30 March 2022 as a result of the Covid-19 pandemic, the Government introduced some temporary adjustments to the requirements for such checks, which are to remain in place until 30 September 2022.
Considering that the European Court of Human Rights has recently been asked to consider the Right to Rent scheme, specifically in relation to discrimination that it can cause, now is a good opportunity to re-visit the topic and update landlords and managing agents as to the current position relating to the scheme.
What is a right to rent?
A right to rent exists when a tenant has a lawful right to live in England.
Landlords must check a tenant’s right to rent before entering into a tenancy agreement with them, and there are also specific requirements for when a tenant only has a time-limited right to rent that a landlord must comply with. It is a criminal offence for a landlord to knowingly let a property to someone without the right to rent, or someone the landlord had ‘reasonable cause to believe’ did not have the right to rent, with a possible prison sentence or unlimited fine attached. A landlord can also face a fine if they rent property to a tenant who does not have a right to rent and they cannot show that they carried out the required right to rent checks.
The temporary adjustments to the requirements for right to rent checks introduced as a result of Covid-19, do not allow a landlord to avoid having to carry out such checks. Landlords must continue to check a tenants right to rent, and it remains an offence to rent to a person without it.
How would I carry out a right to rent check?
A landlord can check a tenant’s right to rent by inspecting the tenant’s original documentation, or by viewing their right to rent online. What documents a tenant must provide to establish a right to rent, or if their right to rent must be viewed online, will depend on the tenant’s nationality and circumstances. Further information on what the tenant needs to provide to establish a right to rent can be found here.
Before the pandemic, landlords would check each tenant’s documents in person with the tenant present, but the temporary adjustments currently allow for checks to be carried out over video call. Additionally, landlords were originally required to make and keep copies of the tenants’ original documents themselves, now though, the temporary adjustments allow for tenants to send scanned copies or photos of their documents to a landlord using email or a mobile app. These temporary adjustments to the right to rent check requirements will remain in place until 30 September 2022.
From 6 April 2022, tenants who hold a Biometric Residence Card or Permit, will need to evidence their right to rent using the Home Office online service only – this is a permanent change, which means that landlords will not be able to accept physical cards for the purposes of right to rent checks, even if the card shows a later expiry date. The temporary adjustments to the requirements for right to rent checks however, allow landlords to check a tenant with a Biometric Residence Card or Permit, or who has been granted status under the EU Settlement Scheme or the points-based immigration system, for a right to rent, using the online right to rent service whilst doing a video call with the tenant - although the tenant must give permission for the landlord to view their details first.
If a tenant has a time limit on their permission to stay, then landlords must carry out follow up checks to ensure that the tenant can continue to rent the property. The follow up checks should be carried out before the date that is the later, of (a) the end of the tenant’s permission to stay or (b) twelve months after the previous check. Landlords and agents will also need to be aware of any EU settled status application made by existing tenants when contracts are being extended or a new tenancy is being discussed. Applications for settled status by EU citizens would have needed to have been made by 30 June 2021. This is something landlords and managing agents would be expected to know about and have checked up on.
A landlord should check all adults over the age of 18 who will be occupying the property for a right to rent whether they are named on the tenancy or not, and no assumptions should be made about a tenant’s right to rent or immigration status (all tenants should be treated equally and therefore all tenants should be checked for a right to rent). A landlord still needs to carry out right to rent checks even if they are letting a property to a family member or friend.
If a tenant cannot provide the required documents for a right to rent check, landlords should request a Home Office right to rent check using the Home Office Landlord Checking Service, which can be accessed here.
I am carrying out right to rent checks in line with the temporary adjustments, what else do I need to do?
A landlord carrying out right to rent checks in line with the temporary adjustments up to and including 30 September 2022, must: -
Ensure the tenant provides a scanned copy or photo of their original documents via email or mobile app.
Arrange a video call with the tenant and ask them to show the original documents to the camera, so the original documents can be checked against the digital copies that the tenant has provided.
Record the date of the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19”.
Use the online right to rent service whilst doing a video call with the tenant, if the tenant has a current Biometric Residence Card or Permit or has been granted status under the EU Settlement Scheme or the points-based immigration system. However, the tenant must first give permission to the landlord, to view their details.
When will the temporary adjustments to the right to rent checks as a result of Covid-19 end?
It is currently the case that the temporary adjustments to right to rent checks will end on 30 September 2022. From 30 September 2022, landlords will need to revert to the original way of carrying out right to rent checks as was the case before 30 March 2020, which includes the need for landlords to check a tenant’s original, hard copy documents with the tenant present, amongst other requirements. Landlords will not though, need to carry out retrospective checks against those who they checked in line with the temporary adjustments between 30 March 2022 and 30 September 2022.
Biometric Residence Cards or Permits cannot be used to evidence a right to rent from 6 April 2022 - biometric card holders will need to evidence their right to rent using the Home Office online service only.
For further information…
Advice for landlords carrying out right to rent checks during the coronavirus (Covid-19) pandemic can also be found here. See also the Right to Rent user guide, and check your tenant's right to rent on the gov.uk site linked here. A Government helpline is also available where Landlords can get help with right to rent checks - as at today’s date, the helpline number is 0300 790 6268.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.