Landlord and tenant
Liz Davies KC and Adrian Berry look at the operation of the right to rent scheme in the private rented sector.
‘Need to know’ is a regular series where leading practitioners set out the key legal knowledge lawyers need to know about an area of law outside their immediate specialism.
The right to rent scheme applies to the private rented sector only and in that sector only to tenancies granted on or after 1 February 2016 in England.
1A pilot scheme was carried out in Birmingham, Wolverhampton, Dudley, Sandwell and Walsall, so the right to rent scheme applies to tenancies granted from 1 December 2014 in those districts. It does not apply to tenancies allocated through a local housing authority’s allocation scheme, including tenancies granted through those schemes by private registered providers (tenancies granted following a direct application to a private registered provider do fall within the scheme). Nor does it apply in Wales, Scotland or Northern Ireland.
By Immigration Act (IA) 2014 s22(1), a landlord or agent cannot authorise an adult to occupy premises under a residential tenancy agreement if that adult is disqualified as a result of their immigration status. This means that all tenants and adult occupiers of premises rented under a tenancy or licence, including lodgers and subtenants, must have the right to rent, and that the potential landlord, or landlord’s agent, must check all occupiers’ status before granting the tenancy or licence. Where an occupier’s right to rent is time-limited, the landlord, or agent, must also check subsequently before the end of the longest of the following: one year; so much of any leave period as remains at that time; or so much of any document validity period as remains at that time (IA 2014 s27(4)). Adult occupiers may be named on the tenancy or licence agreement, but the landlord or agent is also required to make reasonable enquiries about any other intended adult occupiers (IA 2014 s22(4) and (6)).
If a tenant or adult occupier subsequently loses the right to rent, continued occupation of the premises is a contravention of IA 2014 s22 and the landlord may evict the tenant and all occupiers.
The landlord may face civil or criminal penalties if they are in contravention of the scheme, by letting to a tenant, or permitting an adult to occupy the premises, who does not have the right to rent.
Immigration Act 2014, regulations and code of practice
The right to rent scheme was introduced by IA 2014 ss20–37. The Court of Appeal considered the scheme in
R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542; June 2020
Legal Action 44. It held that, although there was some evidence that the scheme caused some landlords to discriminate on the basis of nationality against potential tenants who had a right to rent but did not have British citizen passports, particularly those who had neither British citizen passports nor ethnically British attributes such as their name, the scheme was capable of being operated in a proportionate way in most cases and so it was not incompatible with article 14 of the
European Convention on Human Rights (ECHR) (prohibition of discrimination), read with article 8 (right to respect for home, family and private life).
IA 2014 ss20–37 are supplemented by the Immigration (Residential Accommodation) (Prescribed Requirements and Codes of Practice) Order 2014 SI No 2874, the Immigration (Residential Accommodation) (Prescribed Cases) Order 2014 SI No 2873 and the Immigration (Residential Accommodation) (Termination of Residential Tenancy Agreements) (Guidance etc) Regulations 2016 SI No 1060. The most recent
Code of practice on right to rent: right to rent scheme for landlords and their agents was published by the Home Office on 13 February 2024. The Home Office’s online check for landlords is at: www.gov.uk/landlord-immigration-check. Further advice on how to avoid unlawful discrimination when complying with the right to rent scheme may be found in the
Code of practice for landlords: avoiding unlawful discrimination when conducting ‘right to rent’ checks in the private rented residential sector (Home Office, 6 April 2022).
Where does the right to rent apply?
The right to rent applies to ‘residential tenancy agreements’, defined as any tenancy, lease, licence, sublease or subtenancy, or an agreement for any of those things, that grants a right of occupation of premises for residential use and provides for payment of rent (IA 2014 s20). ‘Residential use’ is defined as where one or more adults have the right to occupy the premises as their only or main residence, whether or not the premises may also be used for other purposes.
The Code of practice on right to rent advises that holiday lets do not fall within the definition of residential tenancy agreements, since they are let for leisure purposes for short periods. It also advises that bookings of three months or more may indicate that a person is using the accommodation for a purpose other than leisure and could be intending to use it as their only or main home.
Some tenancies or licences are excluded (IA 2014 Sch 3), including:
•social housing allocated by a local authority to new or existing tenants;
•accommodation provided under a duty under Housing Act 1996 Part 7 (homelessness) including private rented accommodation provided under those duties;
•mobile homes;
•tied accommodation;
•student halls of residence managed or owned by a university, education institution or charity;
•private tenancies where the tenant is a student nominated by an education institution;
•accommodation for people seeking asylum; and
•hostel and refuge accommodation that is not self-contained and is managed by a public authority, housing association, voluntary organisation or charity.
Long leases of 21 years or more and agreements that grant a right of occupation for seven years or more are also excluded.
A tenancy or licence of residential accommodation granted by a private registered provider (housing association) is excluded if it was granted following a nomination by a local housing authority under its allocation scheme (IA 2014 Sch 3 para 2). Where a private registered provider grants a tenancy or licence as a result of the occupier having applied directly to it, the right to rent checks apply.
Who has right to rent?
There are three types of right to rent: unlimited; time-limited; and where permission is granted by the Home Office.
Unlimited right to rent
A person has an unlimited right to rent if they are a British citizen, an Irish citizen, a Commonwealth citizen with the right to abode in the UK, a person with indefinite leave to remain in the UK (including those with settled status under the EU Settlement Scheme (EUSS) in Immigration Rules Appendix EU), or a person recognised as having no time limit on their stay in the UK (eg, where a person has a no-time-limit biometric residence permit (BRP)) (IA 2014 s21(1), (4) and (5)). If all occupiers have an unlimited right to rent, the landlord need not carry out further checks.
Time-limited right to rent
A person has a time-limited right to rent if they have leave to enter or remain in the UK for a finite period (limited leave). Such persons may include: refugees; those with leave granted outside the Immigration Rules; those with a study, work or family visa/grant of leave; those with a spousal/family member visa/grant of leave; EU citizens and their family members who have pre-settled status under the EUSS; persons with leave under the Ukraine or Afghan schemes; and persons with automatic leave to enter after passing through an automated gate at port on arrival in the UK. The latter is usually for six months as a visitor. Where an adult occupying the premises has a time-limited period, the landlord must carry out a follow-up check within 12 months, or longer if the person’s leave or the validity of their immigration document expires at a date after the 12-month period (this is known as the ‘eligibility period’: IA 2014 s27(4)).
Permitted right to rent
The Home Office may grant a person a discretionary right to rent (IA 2014 s21(3)). The landlord can check this by conducting online check with the Home Office Landlord Checking Service (LCS). Confusingly, there are two checking services:
1the LCS, to be used when checking the status of ongoing applications or appeals, or where the Home Office has granted a right to rent; and
Who is responsible for carrying out the checks?
The landlord is responsible for carrying out the checks before the occupiers move in (IA 2014 s23). If the landlord’s agent was under an obligation (in its contract with the landlord) to carry out the checks, the agent will be liable instead, and subject to civil and criminal penalties, if there are contraventions (IA 2014 ss24(2)(b) and 25). The landlord or agent must check that the tenant/licensee and all adult occupiers named on the tenancy or licence agreement have the right to rent. The landlord or agent must also make reasonable enquiries of the tenant as to the names of all prospective adult occupiers and check all of those names.
Where the occupier(s) have a time-limited right to rent, the checks must be carried during the 28-day period before the commencement of the tenancy or licence. The landlord or agent must also undertake follow-up checks in respect of all occupiers who have a time-limited right to rent either every 12 months or, if the date of expiry of the relevant leave of the validity of their immigration document is later than 12 months, when it expires.
Where there are subtenants, sublicensees or lodgers, all of the relevant landlords and sublandlords are responsible for carrying out the checks. The superior landlord can agree in writing with the sublandlord to be responsible for the checks.
Where the tenancy or licence is assigned, or new occupiers are added, checks must be carried out against all of those new occupiers.
How to carry out the checks
The landlord or agent can carry out manual checks, seeing one or more of the prescribed original documents and taking and retaining copies of them. Where the person has a biometric residence card or permit, EU settled status, or an e-visa, the
checks are done with the Home Office online. An identification document validation technology service provider (IDSP) can also be used to check British citizen or Irish citizen passports (and Irish passport cards). Where a person’s documents are held by the Home Office, the landlord or agent can request that the Home Office undertakes the right to rent check. The full description of the ways of satisfying right to rent checks is set out in the
Code of practice on right to rent (chapter 5).
Documents needed to show unlimited right to rent
Landlords will usually ask for a passport, immigration document confirming the grant of indefinite leave, or certificate of registration or naturalisation as a British citizen. If those documents are not available, they may seek two or more documents including birth or adoption certificates, driving licence, or letters from public authorities, the police or professional persons. A full description of the ways of satisfying right to rent checks is set out in the Code of practice on right to rent (chapter 5).
Documents needed to show a time-limited right to rent
Certain documents may be checked manually, others require online check. Some manually checked documents also require an online check. Landlords may ask for a passport showing the right to remain for a time-limited period, or an immigration document confirming the grant of leave. Other documents such as BRPs do not satisfy manual check requirements and
an online check is required. EU pre-settled status must be checked online at the same webpage. A full description of the ways of satisfying right to rent checks is set out in the
Code of practice on right to rent (chapter 5).
Checking permitted right to rent
Landlords or agents who need to check whether a prospective occupier has a permitted right to rent granted by the Home Office should check
using the LCS, which is also used where a person:
1has a document (a non-digital certificate of application (CoA) or an acknowledgement letter or email) confirming receipt of an application to the EUSS on or before 30 June 2021;
2has a non-digital CoA confirming that the individual has made a valid application to the EUSS on or after 1 July 2021, and is directed to the LCS;
3is an asylum-seeker or has an appeal pending against a determination in respect of their asylum claim;
4has an ongoing immigration application or appeal with the Home Office;
5has their documents with the Home Office; or
6has been granted permission to rent by the Home Office.
The LCS can confirm if Home Office records show that the applicant has lawful status and, if appropriate, will issue a positive right to rent notice.
Consequences for occupiers if no right to rent
Where an occupier has no right to rent, the landlord or agent must refuse to let to them or permit them to move in.
If, following occupation, no one in the property has a right to rent
and the Home Office has served one or more disqualification notices (where all occupiers have no right to rent) on the landlord, the landlord has the right to take possession of the property without a court order (IA 2014 s33D). The occupiers must be given at least 28 days’ written notice in prescribed form (attaching the disqualification notice).
2The prescribed form is at the Schedule to the Immigration (Residential Accommodation) (Termination of Residential Tenancy Agreements) (Guidance etc) Regulations 2016. The landlord can change the locks at the expiry of the notice period and can also enforce it as if it were an order of the High Court, by applying for a writ of possession from the High Court (IA 2014 s33D(7) and Civil Procedure Rules 1998 (CPR) r83.9).
Where at least one occupier has a right to rent, but one or more of the others do not, the landlord may bring possession proceedings when they have received a disqualification notice from the Home Office, relying on mandatory Ground 7B where the tenancy is assured, or an assured shorthold, and discretionary Case 10A where the tenancy is protected under Rent Act 1977 (Housing Act 1988 Sch 2 Ground 7B and Rent Act 1977 Sch 15 Part 1 Case 10A). In the case of tenancies or licences that are excluded from the requirement to obtain a possession order, it is an implied term of the agreement that the landlord may terminate the tenancy if the premises are occupied by an adult who is disqualified (IA 2014 s33E(1) and (2)).
Penalties on landlords or agents
Civil penalties
A landlord or agent can be subject to civil penalties if they fail to carry out the checks, or property is let to and occupied by a person without the right to rent (IA 2014 ss25 and 25). The Home Office may serve a penalty notice on the landlord or agent, who has 28 days in which to object (IA 2014 s28). The maximum penalty is £20,000 (IA 2014 ss23(2) and 25(4)).
3Details as to how the penalty will be calculated are set out in chapter 7 of the Code of practice on right to rent. Separate penalty notices can be given in respect of each adult occupying the premises who does not have the right to rent. Excuses available to landlords or agents include showing that the checks were carried out correctly and that the landlord or agent had notified the Home Office during the eligible period when a time-limited right to rent had expired. A landlord will also be excused if there is a written agreement that the agent was responsible for the checks.
Provision has been made for a landlord or agent to object to the civil penalty (IA 2014 s29) on the ground that: the recipient is not liable to the imposition of the penalty; the recipient has a statutory excuse; or the amount of the penalty is too high. A notice of objection must be given to the secretary of state in the prescribed form within 28 days. On considering a notice of objection, the secretary of state may cancel, reduce or increase the penalty, or determine to take no action.
The Home Office subsequently notifies the landlord or agent of its decision in an objection outcome notice. This can be appealed to the county court within 28 days (IA 2014 s30) on the ground that: the recipient is not liable to the imposition of the penalty; the recipient has a statutory excuse; or the amount of the penalty is too high. The court may: allow the appeal and cancel the penalty; allow the appeal and reduce the penalty; or dismiss the appeal. An appeal is a rehearing of the secretary of state’s decision to impose a penalty. It must be determined having regard to the
Code of practice on right to rent and any other matters that the court thinks relevant (including matters of which the secretary of state was unaware). An appeal falls within CPR r52 and the form to use is an
N161.
If the landlord or agent has a well-founded point that they are not liable to a penalty or that the penalty amount is too high, a rehearing appeal before the county court may be an effective remedy against Home Office intransigence in replying to the earlier objection, either in the determination of the appeal or by way of promoting a settlement of the appeal. The general costs rules applicable to appeals apply here, which may benefit the appellant or expose them to the secretary of state’s costs if unsuccessful. Further information may be found
here.
Criminal offences committed by landlords or agents
A landlord commits an offence if they permit an adult who does not have the right to rent to occupy premises under a residential tenancy agreement, and they knew or had reasonable cause to believe that the adult was disqualified (IA 2014 s33A(1)–(3)). An offence is not committed if the period of occupation is within the eligibility period once a time-limited right to rent has expired.
4The eligibility period is 12 months from the previous check, or the period until the person’s leave has expired if that is longer than 12 months: IA 2014 s27(4). Defences include that the landlord took reasonable steps to terminate the residential tenancy agreement, within a reasonable time from when they knew, or had reasonable cause to believe that the premises were occupied by an adult who did not have the right to rent. Penalties are a fine and/or imprisonment (IA 2014 s33C), and a local authority can apply for a banning order (Housing and Planning Act 2016 s16 and Housing and Planning Act 2016 (Banning Order Offences) Regulations 2018 SI No 216).
An agent commits an offence where they were responsible for the right to rent checks, knew or had reasonable cause to believe that the landlord would be permitting an adult who did not have the right to rent to occupy the premises, had sufficient opportunity to notify the landlord and did not do so (IA 2014 s33B(2)). Defences include that the agent did notify the Home Office and the landlord of any subsequent loss of the right of rent, and/or that the eligibility period in respect of a time-limited occupier had not expired.
Special cases
EEA nationals
Proof of settled or pre-settled status is digital and can be checked
here. Where an application has been made for settled or pre-settled status but not yet been determined, the right to rent can be checked via the same webpage.
Windrush generation
Ukraine
Ukrainians who arrived in the UK under one of the Ukraine schemes may have a BRP valid for up to for three years, which may be checked through the
online checking service. An entry stamp in a passport may be checked manually.
Afghanistan
An Afghan national resettled in the UK will have the right to rent. If they have a BRP valid for up to for three years, this may be checked through
online checking service. An entry stamp in a passport may be checked manually.
Useful guidance
Aside from the government guidance referred above, Shelter has
useful guidance.
This is the third in a series of articles covering immigration law for housing lawyers. The first two appeared in the May and June 2024 issues of Legal Action
, and covered eligibility for homelessness and allocation of social housing.