Under rules which came into effect across England on 1 February 2016, only persons who have a Right to Rent are entitled to rent property.

This measure aimed to curb illegal migration by making it difficult for people with an irregular immigration status to access the services required to live a normal life in the UK.

British nationals, citizens of EEA Countries and their families, minors and those migrants who are settled in the UK without any time restriction on their immigration status have an unlimited right to rent. Migrants who have a time-limited right to remain in the UK will have a time-limited right to rent. There is now a complex set of requirements which landlords and letting agents must comply with to establish who is entitled to rent from them. For more details about these requirements, Click here.

An individual who neither an unlimited or a time-limited right to rent will have no right to rent unless they are one of the few individuals granted ‘Permission to Rent’. This is a status granted by the Home Secretary under s21(3) of the Immigration Act 2014:

“But P is to be treated as having a right to rent in relation to premises (in spite of subsection (2)) if the Secretary of State has granted P permission for the purposes of this Chapter to occupy premises under a residential tenancy agreement.”

Permission to Rent has been the subject of various parliamentary questions because it has not been made clear who will be given permission to rent, how landlords will know this has been given, or how migrants will know whether they have permission to rent.

Can migrants check if they have Permission to Rent?

On 12 April 2016, in response to a question from Baroness Lister of Burtersett about how migrants can check if they have permission to rent, the Government’s answer was as follows:

“Under the Right to Rent scheme, landlords must check the immigration status of those renting, to ensure they are here legally. Where a migrant’s documents are with the Home Office, landlords can confirm the right to rent through the Landlords Checking Service using the migrant’s case reference number.

In some limited circumstances, such as where there are genuine obstacles to them leaving, migrants here without leave may be afforded permission to rent although disqualified from renting. Where a migrant is unsure as to whether they qualify for permission to rent, they may contact the case owner or team that is dealing with their case or ask when they attend the Home Office in compliance with reporting conditions.

It is clear that the Government intends to grant Permission to Rent only very rarely. There is no process for migrants to apply for Permission to Rent, and it does not appear that the Home Office will be providing migrants with any documents to prove to Landlords that they have Permission to Rent, Click here.

Who will be given Permission to Rent?

Chapter 26 of the Home Office’s internal Enforcement Guidance does shed some light on what Permission for Rent is intended for:

In most cases, someone who does not have leave to enter or remain in the UK will not have the right to rent. Someone, in the UK illegally, who makes an out of time application does not have a right to rent while their application is considered.

However, in certain circumstances the Home Office may grant ‘permission to rent’ to someone who otherwise would be disqualified from renting property. This can include:

  • families with minor children who are within the family returns process
  • potential or accepted victims of trafficking or slavery who are noted on CID as having their reasonable grounds accepted for consideration or are within 2 weeks of a conclusive grounds decision  [n.b. CID is a Home Office immigration casework database.]
  • those with an outstanding out of time initial asylum claim or appeal (those with an in-time application or appeal will have an automatic right to rent)
  • those on bail (either criminal or immigration bail)
  • those in the voluntary departures process (including assisted voluntary returns (AVR)) who have had an associated case added to CID to confirm they qualify for ‘permission to rent’

These criteria bear a striking resemblance to the eligibility criteria for support for destitute failed asylum seekers under section 4 of the Immigration and Asylum Act 1999. “Section 4 support” is the most limited form of support offered to migrants by the Home Office. Recipients receive no cash but are instead given a pre-paid card to cover food and essential toiletries only. It seems likely that if the Home Office develops further policy on Permission to Rent it will mirror the highly restrictive approach taken with section 4 support.

However, section 4 support is an entitlement in law and it is awarded in accordance with the statutory criteria under  the Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005. It is possible (for the time being) to appeal a refusal of section 4 support.

Permission to Rent does not have a clear basis in law in the same manner. This means that a landlord who rents a property to a failed asylum seeker who meets the criteria for permission for rent will generally be breaching the law unless that permission has been expressly granted. This failed asylum seeker cannot apply for permission to rent and the Home Secretary appears to be under no obligation to grant them permission to rent.

Will landlords be penalised for accommodating migrants who qualifies for Permission to Rent?

However, as currently drafted, the Home Office’s Enforcement guidance suggests that Landlords will not be penalised in these circumstances. The guidance says that landlords will not be penalised either where their tenant has been given Permission to Rent, or if the tenant qualifies for Permission to Rent:

Landlords will not be liable for a civil penalty for renting property to someone who qualifies for ‘permission to rent’, whether or not this status has already been noted on CID.

There may be occasions where individuals would qualify for ‘permission to rent’ (Those with ‘permission to rent’) but no case has been raised, this particularly relates to those on bail. The fact that an individual is on bail will be clearly identified through individual reporting restrictions. If you encounter someone who may qualify for ‘permission to rent’, but it appears that the landlord has not conducted the appropriate checks, do not take any civil penalty action with respect of the specific individual and note on CID to state they qualify for ‘permission to rent’.

The guidance also explains how Immigration Officers will issue a Referral Notice (“RN”) where they encounter someone who has rented property without having the right to rent and the Landlord has not completed the correct checks. This section states:

You must not include any individual who meets the qualifying criteria for permission to rent (To whom does the Right to Rent scheme apply?) on the RN.

This leaves open the question of whether a landlord can appeal against a civil penalty on the grounds that their tenant did qualify for Permission to Rent. That is not one of the statutory excuses available to landlord or agents under sections 24 or 26 of the Immigration Act 2014, but for the time being Home Office policy is that landlords should not be punished in these circumstances.

Permission to Rent in Practice

So what does this mean for landlords and tenants? Where a prospective tenant claims to have Permission to Rent, the landlord can use the Home Office Landlords Checking Service to check if they may grant a tenancy (or other rights of occupation) to the prospective tenant. This service should give the landlord an answer within two days. If the tenant has Permission to Rent, the landlord will be informed of this.

Is it realistic to think that migrants who do or should benefit from Permission to Rent will not face discrimination when trying to find accommodation? Even well-intentioned landlords are likely to be wary of making a mistake, and may prefer to only rent to tenants with a simple unlimited Right to Rent. The Government’s own guidance to landlords on how to avoid unlawful discrimination when conducting Right to Rent checks suggests that it would be appropriate to tell all prospective tenants that they will need to provide documentary proof of their Right to Rent (rather than only asking some of them, and thereby racially discriminating). That would, of course, discriminate against someone who had Permission to Rent, but lacked the documents to prove it. The guidance also recognises that the business requirements of landlords and agents will make waiting for a response from the Checking Service unsatisfactory:

If a person is not able to produce acceptable documents a landlord should not assume that they are living in the UK illegally. Subject to business requirements, landlords should try to keep the offer of accommodation open in order to provide a prospective tenant the opportunity to produce documents that will demonstrate their right to rent, but they are not obliged to do so.

The Government appears to accept that people with a complex immigration history will be at a disadvantage when looking for accommodation. This is borne out by research carried during the pilot of Right to Rent in the West Midlands. However, these issues did not prevent the Government from rolling out the Right to Rent Scheme across England.

Despite the flaws in the Right to Rent scheme, landlords all across England now must protect themselves from the civil penalties they may face for breaching the rules. The risk to landlords and letting agents will be compounded when the criminal sanctions imposed for renting property to those without Right to Rent in the Immigration Bill 2016 become law.