Most landlords in England will be familiar with the Right to Rent which requires landlords and agents to check the immigration status of prospective tenants and occupiers and to repeat that check at intervals in some cases. Failure to do this puts the landlord at risk of a civil penalty or prosecution in extreme cases.

The exact papers required for various checks are set out in a statutory Code of Practice which is approved by Parliament. Because it is approved this Code has the status of law and is the definitive statement of what the law is. In order to check a person entering the country from outside the EEA the Code says that a landlord or agent needs to see a passport with a visa in it which states that the person has a right to rent.

However, the government is keen to extend the use of electronic passport gates at UK airports and has now done so by allowing travellers from so-called B5JSSK countries to use them. This means passengers from the USA, Canada, Australia, New Zealand, Japan, Singapore and South Korea. These passengers will be entering using electronic identification and based on an online visa application made in advance. However, this means that they will have no visa in their passport.

In addition, the government has decided that these passengers will also have a right to rent in the private sector for up to 6 months and they have issued a new short guide to the right to rent to support this.

This creates a problem. The short guide states that a landlord can rent to a B5JSSK passenger who is clearly here for a holiday as they are exempt from Right to Rent anyway or alternatively can rent to a B5JSSK passenger who is not here for a holiday based on their passport and evidence that they have entered the UK in the last 6 months, such as an airline boarding pass. However, at the current time this advice is totally wrong. The Code of Practice has not been changed and has no special rules for B5JSSK passengers. Therefore, the only way to truly comply with the Right to Rent would be for them to have a passport with visa. So, the advice from the Home Office, if followed, would lead to a landlord or agent breaking the law.

The Home Office has said it is going to revise the Code of Practice but until they do the short guide is incorrect. Hopefully, they will either withdraw the short guide until they get things resolved or will get the Code of Practice updated promptly.