The Home office has consolidated all the Code of Practices on right to rent into one guidance on 2 November 2020.
The published guidance provides helpful information to Landlords, Home Owners and Letting Agents on the following:
- The type of tenants who will be subjected to right to rent checks
- When to conduct right to rent checks
- The documents landlords need in order to establish and maintain a statutory excuse against liability for a civil penalty
- What happens when there is a breach
- An individual will have the “right to rent” in the UK provided they are lawfully present in accordance with immigration law. A landlord should not authorise an adult to occupy property as their only or main home under a residential tenancy agreement, unless the adult is a British citizen, a European Economic Area (EEA) or Swiss national, has the “right to rent” in the UK or who has permission to rent from the Home Office.
- The Scheme applies to landlords (both businesses and individuals) who let accommodation with a lease or tenancy agreement, occupiers who sub-let their accommodation (including those in social housing), who will be landlords for the purposes of the Scheme and landlords or occupiers who take in lodgers to share their accommodation with a licence to occupy the property.
- The right to rent checks can be made online or manually.
- A landlord is not required to conduct right to rent checks in relation to residential tenancy agreements entered into before the commencement date of the Scheme, or which are renewed after that date if the renewed agreement will be between the same parties and there has been no break in the tenant’s right to occupy the premises.
- Landlords who have correctly conducted a right to rent check will obtain a statutory excuse against liability for a civil penalty
Practical and useful points to be aware of:
- The introduction of online right to rent checks.
Prospective tenants can now evidence their right to rent via the Home Office online checking service. It will be for the prospective tenant to decide whether to use the online service or provide the landlord with physical documents to prove their right to rent.
- Visitor nationals from the USA, Canada, Australia, New Zealand, Japan, South Korea and Singapore may use the combination of a passport, plus proof of arrival within the last six months to demonstrate a right to rent
- An amendment to the list of acceptable documents to include Home Office documents issued to third-country family members of EEA nationals, which show the length of leave granted to such persons and to remove the requirement that a UK birth or adoption certificate must be the full (long) certificate.
The three steps to establish and maintain a statutory excuse against liability for a civil penalty:
- Conduct initial right to rent checks before authorising an adult to occupy rented accommodation. A Right to Rent documents checks guide is available on the government website.
- Conduct follow-up checks at the appropriate date if initial checks indicate that an occupier has a time-limited right to rent, and
- Make a report to the Home Office if follow-up checks indicate that an occupier no longer has the right to rent.
It is unlawful to discriminate against individuals on grounds of protected characteristics, including race, when entering into residential tenancy agreements. Those experiencing unlawful discrimination may claim compensation in the civil courts.
Captain – We have a problem!
When considering a landlord’s liability for a civil penalty, the Home Office will follow the framework set out below:
Stage 1: Determining Liability - whether the landlord has been found to have authorised occupation of property by someone with no right to rent, do they have a statutory excuse?
Stage 2: Determining the level of breach - If the answer is 'No', has the landlord breached the scheme in the last 3 years?
Stage 3: Calculating the penalty amount - If the breach is not within the last 3 years, the maximum penalty will range from £80 - £1000 (Level 1 breach). If the breach is within the last 3 years, the maximum penalty will range from £500 - £3000 (Level 2 breach).
Shall the Landlord challenge or accept the civil penalty?
Whether to challenge or accept the civil penalty will of course be different in every case. The landlord will have 28 days from the date they receive the Civil Penalty Notice from the Home Office, to object. For first breaches under the Scheme, the landlord has the opportunity to pay 30% less of the total amount if full payment is received within 21 days of the Civil Penalty Notice.
If you find yourself in an unfortunate situation, contact our Immigration Team for expert advice.
This article has been amended to incorporate the first published guidance of Right to Rent guidance on 2 November 2020.