Albeit that the Government’s guidance on the Right to Rent Scheme is still in draft form, from 1 February 2016 all landlords of residential property in England will be required to conduct checks on all prospective tenants to determine whether they have a right of residence in the UK. Letting a residential property to an individual who does not have the right to rent in the UK can leave landlords liable to a civil penalty of up to £3,000.

Who has the Right to Rent?

British, EEA and Swiss nationals and individuals who have been granted indefinite leave to remain or permanent residence in the UK all have an unlimited right to rent property in the UK. Individuals who have time limited permission to live in the UK, either under the Immigration Rules or EU law also have the right to rent property but only for as long as they hold valid permission to live in the UK.

An individual who requires permission to live in the UK but does not have such permission, or cannot evidence their permission, does not have the right to rent.

What checks should the landlord carry out?

The legislation is wide reaching and applies to all new tenancy agreements relating to residential property in England commencing on or after 1 February 2016. It does not apply to existing tenancies that are in place or that are extended after the introduction of the scheme.

Landlords, or their managing agents, must check that all adults occupying the property as their only or main home have the right to rent. This includes individuals who are not named on the tenancy agreement. Situations where properties are sub-let by existing tenants or when an occupier takes in a lodger are also covered but it is the tenant who sublets or the occupier that takes in the lodger that will be liable for a fine if he or she does not undertake the necessary checks and is (whether knowingly or not) renting the accommodation to an illegal migrant.

The checks that need to be carried out mimic the checks employers need to make before employing staff. They require landlords to view the prospective tenant’s original documents evidencing that he or she has the right to rent in his or her presence and take and retain copies to evidence that the checks have been done. For those with time limited permission to live in the UK, the checks must be repeated every 12 months to check that the tenant continues to have permission to live in the UK.

What are the consequences of not checking a tenant’s status?

If a landlord or agent does not carry out the necessary checks and it later transpires that the tenant does not have the right to rent, it will be liable for a civil penalty of up to £3,000.

Provided that the necessary checks have been carried out and the landlord or agent genuinely believes that the individual has the right to rent, a statutory excuse from liability will be established if the tenant does not have the right to rent (say if the tenant’s passport or ID document was a forgery).

What if the tenant does not have the right to rent?

If, having carried out the necessary checks, a landlord or agent does not genuinely believe that the tenant has the right to rent in the UK it must not enter into the tenancy agreement with the tenant.

If a landlord becomes aware that the tenant does not have the right to rent after the tenancy agreement has been entered into, the Home Office must be informed. If the tenant is allowed to continue to occupy the property and the Home Office is not informed the statutory excuse will be lost. Landlords aren’t however required to evict such tenants. Provided the landlord or agent makes the report as soon as reasonably practicable the statutory excuse will be maintained for as long as the illegal migrant continues to occupy the premises.

Landlords will be at risk if they (having made the checks in the first instance before entering the tenancy) fail to make the repeat checks and the tenant’s permission to live in the UK has since expired but they have not left the UK. This is how many migrants become illegal migrants. This scheme gives the government a new avenue for becoming aware that these migrants are living in the UK and crucially being informed of where they live so they can take steps to remove them!