Opinion and insight from our Housing team
Everything to know about the Right to Rent Scheme
- AuthorDaniel Skinner
Landlords in England of residential property must check whether a tenant, or lodger, is legally entitled to rent the property. This was first introduced under the Immigration Act 2014.
It was part of the Government’s “hostile environment” policy and was designed to make it harder for those without a lawful immigration status to remain in the country.
It was trialled in the West Midlands and found 109 individuals who were in the UK illegally. Of those, 9 were known subsequently to have been removed from the country.
After the trial, the scheme was rolled out nationally and then the enforcement powers were extended by the Immigration Act 2016.
There is some doubt over its effectiveness. The Chief Inspector of Borders and Immigration said the “policy has yet to demonstrate its worth as a tool to encourage immigration compliance”. There is also evidence that it leads to discrimination against BME individuals and lawful migrants who take twice as long to find a home as a white British person.
A legal challenge by the Joint Council for the Welfare of Immigrants was successful in the High Court. The Court of Appeal agreed that the scheme was found to cause racial discrimination. However, the Court of appeal did not find it was unlawful so the scheme remains in place, albeit not in Scotland Wales or Northern Ireland.
How Does the Scheme Work?
Before the start of the agreement the landlord must check all occupants over 18. It does not have to be a tenancy, a lease, licence sub-lease or sub-tenancy is also covered. It does not have to be in writing, an oral agreement is also covered.
Occupants over 18 must be checked, even if they are not named on the agreement.
It is a criminal offence not to do the checks. A landlord could be fined an unlimited amount and/or sent to prison for up to 5 years if they allow a disqualified adult to occupy the property, or allow someone who had a time limited right to rent to continue to occupy after that right has expired.
The landlord can delegate the responsibility to an agent but the rules are strict on doing so and it will not be easy for landlords to avoid liability in that way.
The landlord should either check original documents or see the tenant’s right to right online if they have been given a “share code” by the Home Office.
There are some temporary changes in place because of Covid 19, due to end on 5 April 2022, which allow for scanned documents and checks to be made over video calls. Coronavirus (COVID-19): landlord right to rent checks - GOV.UK (www.gov.uk)
The Home Office has published a detailed guide to carrying out checks. This was updated on 6 December 2021 Landlord’s guide to right to rent checks (publishing.service.gov.uk)
It contains lists of what documents are acceptable as evidence. They vary depending on whether the occupant has a full right to live here or one that is time limited
Who is Allowed to Rent Property?
When the scheme was initially introduced EU, EEA and Swiss citizens were exempt. They now have to prove their Right to Rent under the EU Settlement Scheme or show that they have made an application.
Checks accordingly must be made for anyone who is not a British citizen.
Some types of occupancy are not covered by the requirement to carry out checks. The full list is set out in Schedule 3 of the 2014 Act. Immigration Act 2014 (legislation.gov.uk)
The list should be checked carefully for the definitions it uses, but it includes things such as Mobile Homes, Hotels, Care Homes, local authority accommodation, Student Accommodation and Long Leases.
The first exemption is for Social Housing; again the definition is key.
Social Housing exemption
The exemption is not for all properties rented by Social Landlords/ Registered Providers.
It only applies to accommodation provided under:-
(i)Part 2 of the Housing Act 1985, or
(ii)Part 6 or 7 of the Housing Act 1996
Part 2 of Housing Act 1985 relates to the provision of Housing Accommodation by local authorities.
Part 6 and 7 of Housing Act 1996 relate to the Allocation of Housing Accommodation and Homelessness.
As such, the majority of lettings by Registered Providers are likely to be exempt, especially under a nomination agreement with the local authority. The justification for that is that the Council will have done their own checks before deciding whether they owe a duty.
However direct lets, private market rentals etc would not be exempt and Social Landlords will need to do their own checks.
Excuses and defences are available to the landlord under the 2014 and 2016 Acts. If the landlord receives a notice of a contravention he can argue that he had given notice to the Secretary of State as soon as reasonably practicable.
Under the amendments introduced by the 2016 Act it is a defence to show that he has taken reasonable steps to terminate the agreement and done so within a reasonable time of knowing or having cause to believe there was a breach.
Home Office guidance suggests they have 4 weeks to agree a surrender or an assignment to others who have the Right to Rent. Otherwise, they should take steps to evict within 14 days of notice if court action is not required.
Eviction – With and Without a Court Order
If the Secretary of State serves a notice saying the occupier, or all of the occupiers, is/are disqualified then the Landlord may give a prescribed notice of 28 days. After its expiry the court bailiff can enforce without a court order.
If not all the occupiers are disqualified then there is a new mandatory ground for possession in assured tenancies; Ground 7B. That can be used even if in the middle of a fixed term agreement. It is now an implied term in any tenancy that the landlord can rely on Ground 7B.
Right to Rent is important for all landlords. Even Social Landlords need to be aware of the specific exemption they have.