What is Right to Rent?

Right to Rent is a vital part of landlord legislation in England. It is a key pre-tenancy check, which prevents potential tenants without lawful immigration status from renting a property in the private rented sector.

When should a Right to Rent check take place?

It is important to conduct Right to Rent checks on all adults over 18 who will be living in your property (whether they are named on the tenancy agreement or not) before the start date of the tenancy.

How do you carry out a Right to Rent check?

Right to Rent checks can seem daunting, but the process of carrying one out is simple, and designed to be as easy as possible for both landlord and tenant. Whilst the legislation is clear that the landlord (or a nominated agent) must carry out the check, you are not expected to have an in-depth knowledge of immigration rights or legislation, and there are plenty of tools to help you with the process.

In November 2020, a new online service was introduced by the Home Office, which allows certain tenants to carry out their own check and share the results with you (or your agent) digitally, via an online code.

You cannot insist that a tenant uses the online service, but if they agree to, all they need to do is log on to Gov.uk: Prove Right to Rent and complete the online form. This will produce a code, valid for 30 days, which can then be shared with you.

To use the services, your tenant needs:

a biometric residence card or permit
to have settled or pre-settled status
to have applied for a visa and used the ‘UK Immigration: ID Check’ app to scan their ID document on their phone

Once complete, you then visit Gov.uk: View Right to Rent, enter your tenants date of birth and their shared code, and you can view their status.

If your tenant is unable to complete the process online, you are also able to check their status manually. This process is also very simple.

There are three key steps to carrying out a manual Right to Rent check, and all must be completed in order to ensure that the process is compliant with the legislation.

Step one:

Ask your tenant to provide the relevant documents needed to carry out the check. They must provide original documents from either List A or a selection from List B (available here: Right to Rent Checks: A User’s Guide). Photocopies or photographs of the documents are not acceptable, you must be provided with the originals.

Step two:

Meet with your tenant and check their documents. You should check that:

The documents appear to be genuine, and not falsified in any way
The person showing you them is the owner of the document
Photographs and dates of birth are consistent across all documents
Any changes to name can be explained with evidence (marriage/divorce certificate, deed poll)
Immigration leave to enter or remain in the UK has not expired

Step 3:

You should record that the check has been carried out and make a clear copy of the documents, including anywhere that includes the tenant’s photograph, date of birth, signature, biometric details, visa/working permit details. This should be done in a format that cannot be altered later (such as an un-editable PDF, or photograph) and securely retain the copy, electronically or in hardcopy.

Make a note of the date that the check was carried out and ensure that your keep hold of the data for the duration of the tenancy, and for at least a year after the tenancy has ended. Bear in mind GDPR legislation and ensure that any data you are holding regarding your tenant is kept securely and cannot be accessed by anyone else.

Time-limited Right to Rent

Some tenants may have a time limited right to rent. This means that they only have a valid leave to enter or remain in the UK (including pre-settled status) for a limited period of time.

In this instance, your tenant should provide evidence to demonstrate the limits on their time, which you should make note of and recheck their status accordingly. Any tenant who has had their visa status granted digitally (known as an eVisa) can use the Home Office online service, which will confirm to you whether you need to conduct a follow up check and the deadline for when this check should be completed by. The process for a follow up check is the same as a standard check.

What documents are required for a Right to Rent check?

There is a huge array of documents that are acceptable for use in a Right to Rent check, it is designed to be as accessible as possible to everyone.

List A, Group 1 includes single documents such as passports (current or expired), residence cards, biometric immigration cards or immigration status documents which show an unlimited Right to Rent.

List A, Group 2 includes documents that when two or more are shown, provide an unlimited Right to Rent. They include documents such as UK, Irish, Channel Islands or Isle of Man birth or adoption Certificate, a letter of attestation from an employer, a letter from HM Prison Service or benefits paperwork.

List B includes documents which provide a time limited Right to Rent. It includes a current passport or travel document endorsed with a time-limited period, a Frontier Working Permit or a current biometric immigration document with time-limited leave.

A full list is available here: Right to Rent Checks: A User’s Guide

If your prospective tenant is unable to provide any of the evidence, you are able to make a request to the Landlord Checking Service here: Home Office: LCS Application to see if your tenant has a Right to Rent.

What about false documents?

Landlords are not border control experts, and it is understood that unless you are trained in spotting falsified documents, it can be very difficult to identify something that might not be quite right.

You should take all reasonable steps to ensure that the documents you are presented with are true and valid (check for obvious things, like paper weight, water marks, and stitching), however you are not expected to utilise any technical aids to check for falsified documents and you will not be liable for any penalties if it is not reasonably apparent that a document is false.

What do you do if your tenant doesn’t have a right to rent?

If your tenant’s Right to Rent check highlights that they do not have the right to rent in the UK, it is very important that you do not proceed with the tenancy.

You could be liable for a penalty if you allow your tenant to occupy your property knowing that they do not have the appropriate authority to do so.

If your check indicates that your prospective tenant does not have a Right to Rent, you are required to make a report to the Home Office using a simple online form. This must be done as soon as is practice after carrying out the check. You will not have to submit documents online as part of this process, but you should keep a copy of them as per standard practice and be prepared to provide them should you be required to.

What are the penalties for failing to perform a Right to Rent check?

There are strict penalties for failing to comply with the Right to Rent regulations. Under the Immigration Act 2016, it is a criminal offence to rent a property to someone who does not have the right to reside, an act which in serious cases could even carry a prison sentence. If you have not carried out the appropriate checks, you could face fines of up to £3,000 per tenant.

Can you check documents via video conferencing?

Throughout the pandemic many landlords have been carrying out Right to Rent document checks using digital technology such as Facetime, Zoom or Microsoft Teams. Aiding social distancing requirements and preventing landlords, tenants and letting agents having to have unnecessary contact during the pandemic, this was arguably helpful, but could be dangerous when it comes to assessing false documents.

If you are unable to utilise the Government’s online service, you should check documents in person with the document owner present.

Who is responsible for a Right to Rent check?

The responsibility for this check stays with the landlord, even if they have entrusted an agent to manage their properties for them. Unfortunately, despite asking for this to be carried out, the buck still stops with you if it is not carried out correctly.

You can formalise the responsibility being passed to your agent by allocating the responsibility via a Transfer of Liability. This must be a written document (verbal isn’t enough) and it must be made clear that:

The agent is responsible for the check, and any follow up checks (if required)
The agent must conduct the check within timescales laid out in industry code of guidance (before a tenancy starts)
Liability for the correct process can be transferred to the agent, but cannot be transferred from the agent to another third party

If your agent agrees to the Transfer of Liability, they will then take responsibility

Is Right to Rent discriminatory?

No, every tenant must undertake a Right to Rent check. You should never feel that you are being discriminatory by asking a tenant to provide evidence of their Right to Rent, the legislation is clear that this is a vital part of the letting process and should not be skipped under any circumstances.

Whether your tenant is a British Citizen or moving to the country from elsewhere in the world, the process is the same and you should always approach this check with the same level of scrutiny and care.

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